UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WILLIAM THOMAS,                         
          Plaintiff                    

     v.                            Civil Action No. 97-0712 (TFH)

CHRISTIAN STANTON, et al.,
          Defendants

DEFENDANTS' REPLY MEMORANDUM
OF POINTS AND AUTHORITIES
IN SUPPORT OF PARTIAL MOTION TO DISMISS

I. Preliminary Statement

On July 28, 1997, defendants submitted a partial dispositive motion in this matter arguing that all claims against Officer Stanton should be dismissed on the grounds that he is entitled to qualified immunity on all claims asserted against him in his individual capacity. See Defendants' Memorandum of Points and Authorities in Support of Partial Motion to Dismiss ("Def. Mem.") at 3-24. In particular, defendants argued that none of Officer Stanton's actions violated a clearly established constitutional right of which a reasonable person would have known. Id.[1]

[1 Defendants also argued that the plaintiff failed to properly serve Officer Stanton. In response, plaintiff moved to correct the docket entries in this case, stating that he filed a Proof of Service with attached Declaration of Service regarding all of the defendants and noted that the Clerk of the Court had failed to make a docket entry to reflect that Officer Stanton had been served with the summons and complaint. However, the individual who accepted service on behalf of Officer Stanton was only authorized to accept service for him in his official capacity. Defendants, nonetheless, will not further pursue their claim under Fed. R. Civ. P. 12(b)(5). ]

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In response, plaintiff does not challenge any of the legal arguments advanced by the defendants. Indeed, plaintiff's opposition barely discusses the applicable law at all. Instead, plaintiff erroneously claims that the defendants have misconstrued the facts in this matter. And he claims that if the law is applied to the facts as alleged in the complaint, there is no basis to dismiss the claims against Officer Stanton on qualified immunity grounds. See Plaintiff's Opposition to Defendants' Partial Motion to Dismiss ("P1. Opp.") at 4-6. Yet, plaintiff fails to provide any legal analysis to support such a claim. Furthermore, he never explains why Officer Stanton is not entitled to qualified immunity, other than to summarily recount some of the events that took place on the evening of April 6, 1996, and conclude that he was engaging in activity protected by the First Amendment. see Pl. Opp. at 5.

In short, as discussed in the defendants' initial memorandum and further below, this Court should grant defendants' motion to dismiss Officer Stanton as a defendant because he is entitled to qualified immunity.

II. Argument

To the extent plaintiff's opposition rests on his contention that defendants' arguments should be ignored because they misconstrue the complaint, this argument is without merit. Initially, with respect to plaintiff's First Amendment claim, this argument misses the mark. The First Amendment portion of this case rests on an analysis of the D.C. Disorderly Conduct

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Statute in conjunction with the Supreme Court's decision in Clark v. Community for Creative Non-Violence, 468 U.S. 288 (I983), which articulated a three part test for examining a regulation that impacts speech in a traditional public forum. See Def. Mem. at 9-10. Defendants argued that the statute readily satisfied the Clark test, and plaintiff does not contend otherwise. Instead, in a mere footnote, plaintiff summarily dismisses this argument as irrelevant because it is allegedly based on disputed material facts; yet, he fails to identify which facts specifically germane to the First Amendment claim are disputed. In fact, plaintiff would have a difficult time doing so because this argument does not depend on an application of the law to the facts set forth in the complaint; rather, it hinges on an application of the Clark test to the Disorderly Conduct Statute. See Def. Mem. at 8-14.

Plaintiff similarly fails in his attempt to undermine defendants' Fourth Amendment arguments. Indeed, plaintiff fails even to discuss his Fourth Amendment claims; he simply identifies them. [2] He does not explain how in light of the governing case law his Fourth Amendment rights were violated. His whole argument rests, once again, on his erroneous contention that the defendants have misconstrued the facts relating to this claim and

[2. In fact, plaintiff mistakenly alleges that defendant Stanton has violated his right to be free from unlawful detention and unreasonable search and seizure under the Fourteenth Amendment rather than the Fourth Amendment. See Pl. Opp. at 4.]

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that, therefore, any argument advanced by the defendants must be flawed.

Contrary to plaintiff's assertion, however, the defendants have not mischaracterized any of the facts in this case, but have accurately described the events that took place on the evening of April 6, 1996. On the other hand, plaintiff attempts to do precisely what he now claims the defendants have done. He massages the facts to his liking and selectively picks and chooses those facts upon which to base his Fourth Amendment claims. Ultimately, the complaint speaks for itself, and the facts as originally alleged therein support a dismissal of Officer Stanton on qualified immunity grounds.

In particular, assuming that plaintiff is raising a false arrest/false imprisonment or excessive force claim, the facts as alleged in the complaint do not give rise to any viable Fourth Amendment claim. Initially, plaintiff cannot succeed on his false arrest/false imprisonment claim because he cannot establish that Officer Stanton was unjustified in arresting him. See Scott v. District of Columbia, 101 F.3d 748, 753 (D.C. Cir. 1996), cert denied, 117 S.Ct. 1824 (1997). Likewise, plaintiff cannot establish an excessive force claim because Officer Stanton's actions under the circumstances were reasonable. Id. In short, a review of the allegations in the complaint readily

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evidences the absence of any Fourth Amendment violation and concomitantly any Bivens [3] liability.

Initially, it is important to note that the facts as portrayed in plaintiff's opposition contain several glaring omissions critical to defendants' qualified immunity argument. For instance, plaintiff's opposition fails to point out that the events in question occurred not during the day, but well into the evening. See Complaint, ¶ 6. Likewise, the plaintiff fails to mention that he was projecting his voice so that "passersby on both the North and South sides of Pennsylvania Avenue could hear him." Id. Although plaintiff's opposition states that he was "projecting his voice so that he could be heard" (P1. Opp. at 5), it undoubtedly makes a difference that he was attempting to be heard by individuals on the opposite side of Pennsylvania Avenue -- and indisputably wide boulevard --- because in order to do so plaintiff would have to have been speaking quite loudly. Plaintiff also fails to note that before Officer Stanton approached and allegedly pushed him, Officer Stanton asked him twice to "be quiet" and that plaintiff, in effect, ignored this request, by thereafter again projecting his voice so that individuals on the other side of Pennsylvania Avenue could hear him. Id. l, 6 and 7.

In the same vein, to the extent that plaintiff claims that defendants' memorandum contains factual "mischaracterizations,"

[3 Bivens v. Six Unknown Named Agents Federal Bureau of Narcotics, 403 U.S. 388 (1971) ]

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he is mistaken. Notably, several of the so-called "misstatements" are not misstatements at all, but arguments taken out of context. Plaintiff appears to misunderstand the difference between factual presentation and argument. For example, he alleges that defendants stated that plaintiff engage[d] in any type of conduct with impunity, and that he "intentionally provoked a breach of the peace." see P1. Opp. at 6. To the contrary, defendants argued that "[t]o the extent plaintiff believes that he has the right under the First Amendment to engage in whatever kind of speech or expressive conduct whenever and wherever he wants in the now closed portion of Pennsylvania Avenue, he is mistaken." See Def. Mem. at 8. Likewise, defendants never stated that the plaintiff, in fact, breached the peace; rather, defendants argued that Officer Stanton reasonably believed that plaintiff's actions constituted a breach of the peace or, at the very least, had the potential to escalate to that level. See Def. Mem. at 16.

Equally unavailing is plaintiff's contention that defendants' factual "characterizations" are not supported by the complaint. Plaintiff takes issue with defendants' statement that "plaintiff disobeyed officer's Stanton's Order." P1. Opp. at 6. He contends that he never ignored direct orders of an officer (id); nonetheless, the complaint does not so state, and even if plaintiff did not construe Officer Stanton's instructions to "be quiet" as an order, it is clear from the complaint that Officer Stanton twice told the plaintiff to "be quiet" and that the

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plaintiff did not respond. See Complaint, qq 6 and 7. Moreover, to the extent plaintiff now claims that he was not creating a disturbance, the complaint, again, does not so state. The complaint plainly alleges, however, that at approximately 9:30 in the evening, plaintiff was projecting his voice so that people on the other side of Pennsylvania Avenue could hear him and that after being told at least twice to be quiet, plaintiff started to project his voice across Pennsylvania Avenue once again.

Furthermore, to the extent plaintiff also states that he did not yell or scream (P1. Opp. at 6); his argument borders on the frivolous. His contention is essentially a disagreement over the choice of a synonym. Plaintiff specifically alleges that he was projecting his voice so that individuals on the opposite side of Pennsylvania Avenue could hear him. As noted above, given the size of Pennsylvania Avenue, it is difficult to imagine how plaintiff could have made himself heard or have actually engaged in a conversation with people on the other side of Pennsylvania Avenue (Complaint, q 7) without yelling or screaming. Finally, plaintiff claims that he did not engage in an imbroglio with Officer Stanton (P1. Mem. at 6); yet, plaintiff clearly had a disagreement with him; after Officer Stanton specifically told him twice to "be quiet," plaintiff resumed his shouting. Complaint, 6 and 7.

Ultimately, when viewed in their totality, these factual allegations fail to state any Fourth Amendment violation. First, Officer Stanton had grounds to arrest the plaintiff for

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disorderly conduct. See Chemalali v. District of Columbia, 655 A.2d 1226, 1228 (D.C. 1995), citing, Rodgers v. United States, 290 A.2d 395, 396, n.2 (D.C. 1972)(Under the District of Columbia Disorderly Conduct Statute even "proof of actual or impending breach of the peace is not required for a conviction."); See Chemalali v. District of Columbia, 655 A.2d 1226, 1228 (D.C. 1995)("So long as the alleged offensive conduct rises to the level that a breach of the peace might be provoked by the conduct, it is prohibited by statute.") Based on the lateness of the hour, the loudness of plaintiff's voice and plaintiff's continuing efforts to continue his conduct although Officer Stanton instructed him to "be quiet," Officer Stanton reasonably could have believed that the plaintiff was breaching or about to breach the peace.

Likewise, Officer Stanton had ample grounds to arrest the plaintiff for assaulting an officer because he believed (and it so states in the complaint) that plaintiff was resisting arrest. See Complaint, ¶ 7; 18 U.S.C. § 111. [4] Plaintiff counters that

[4 § 111. Assaulting, resisting, or impeding certain officers or employees

(a) In general.--Whoever-

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties;

shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned nor more than three years, or both.]

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Officer Stanton's statement may be inaccurate or unreasonable under the circumstances and that it should be viewed as suspect in light of the plaintiff's allegation that he was not resisting arrest. See Pl. Opp. at fn. 8. That the plaintiff and the defendants may disagree about whether the plaintiff was resisting arrest is irrelevant regarding whether Officer Stanton is entitled to qualified immunity. This statement should be considered in conjunction with all of the allegations in the complaint including those which make clear that plaintiff did not heed Officer Stanton's warnings to "be quiet." Complaint, ¶¶ 6 and 7. Ultimately, unless the allegations of the complaint state a claim of a violation of clearly established law, defendant Stanton is entitled to qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Moreover, even assuming, arguendo, that Officer Stanton did not have probable cause to arrest the plaintiff for assaulting an officer, as discussed above, he certainly had probable cause to arrest the plaintiff for disorderly conduct; therefore, plaintiff's Fourth Amendment false arrest claim ultimately cannot prevail.

Finally, there is no evidence of excessive force. Officer Stanton believed that the plaintiff was resisting arrest (complaint, 1 7) and in such circumstances "[w]here an offender

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offers physical resistance to arrest, a law enforcement officer need not retreat, but may become the aggressor and use such force as is necessary to overcome the resistance and to protect himself from serious injury." See Amato v. United States, 549 F. Supp. 863, 869 (D.N.J. 1982); see also Stevens v. Stover, 727 F. Supp. 668, 670 (D.D.C. l990)(The reasonableness of a force by an officer requires "requires careful attention to the facts and circumstances of each particular case including whether . . . [the subject] is actively resisting arrest . . . "), citing, Graham, 490 U.S. at 396. Moreover, as noted previously, the force used in this case is comparatively less than the force employed in other cases where an excessive force claim was rejected. Cf. Scott, 101 F.3d at 751-52, 759; Stevens v. Stover, 727 F. Supp. 668, 670 (D.D.C. l990)(Court upheld an administrative determination that the plaintiff had not been the victim of excessive force even though plaintiff had "lacerations, bruises, and internal problems requiring medical treatment" ¶¶ citing, Graham, 109 S.Ct. at 1871-72.

At bottom, there has been no constitutional violation of a clearly established constitutional right in this case, and Officer Stanton is entitled to qualified immunity.

III. Conclusion

Wherefore, based on the foregoing and those arguments set forth in the defendants' initial memorandum, plaintiff's claims against defendant Stanton should be dismissed.

Respectfully submitted,
(signed)

 

Of Counsel
Kathy DiPippa, Esq.
United States Secret Service

CERTIFICATE OF SERVICE

I hereby certify that the foregoing copy of the reply memorandum in support of the defendant's partial motion to dismiss was sent via first class mail, this 6th day of October 1997, addressed to:

Daniel M. Schember, Esq.
Alisa Wilkins, Esq.
Gaffney & Schember
1666 Connecticut Avenue, N.W. Suite 225
Washington D.C. 20009