Theodore Wesby, et al v. DC, et al

Filing

OPINION filed [1510152] (Pages: 29) for the Court by Judge Pillard, DISSENTING OPINION (Pages: 12) by Judge Brown, [12-7127]

USCA Case #12-7127

Document #1510152

Filed: 09/02/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 27, 2014

Decided September 2, 2014
No. 12-7127

THEODORE WESBY, ET AL.,
APPELLEES
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLANTS
EDWIN ESPINOSA, OFFICER - METROPOLITAN POLICE
DEPARTMENT, IN BOTH HIS OFFICIAL AND INDIVIDUAL
CAPACITIES, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00501)

Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellants. With him on the briefs were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General, at the time
the briefs were filed. Loren L. AliKhan, Deputy Solicitor
General, entered an appearance.

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Gregory L. Lattimer argued the cause and filed the brief
for appellees.
Before: BROWN and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
Dissenting opinion filed by Circuit Judge BROWN.
PILLARD, Circuit Judge: A group of late-night partygoers
responded to a friend’s invitation to gather at a home in the
District of Columbia. The host had told some friends she was
moving into a new place and they should come by for a party.
Some of them informally extended the invitation to their own
friends, resulting in a group of twenty-one people convening
at the house.
With the festivities well underway,
Metropolitan Police Department (“MPD”) officers responded
to a neighbor’s complaint of illegal activity. When the police
arrived, the host was not there. The officers reached her by
phone, and then called the person she identified as the
property owner, only to discover that the putative host had not
finalized any rental agreement and so lacked the right to
authorize the soiree. The officers arrested everyone present
for unlawful entry. But because it was undisputed that the
arresting officers knew the Plaintiffs had been invited to the
house by a woman that they reasonably believed to be its
lawful occupant, the officers lacked probable cause for the
arrest. Nor was there probable cause to arrest for disorderly
conduct because the evidence failed to show any disturbance
of sufficient magnitude to violate local law. We accordingly
affirm the district court’s grant of summary judgment to
Plaintiffs on the ground that the arrests violated their clearly
established Fourth Amendment rights and District of
Columbia law against false arrest. Because the supervising

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police sergeant at the scene also overstepped clear law in
directing the arrests, the district court also correctly held the
District of Columbia liable for negligent supervision.
I.
The District of Columbia and two police officers in their
individual capacities appeal the district court’s liability
determinations resulting from the grant of partial summary
judgment against them. The court granted partial summary
judgment in Plaintiffs’ favor because, given the
uncontroverted evidence of record regarding the information
known to the sergeant and two of the officers at the time of
the arrests, no reasonable officer in their shoes could have
found probable cause to arrest any of the Plaintiffs. The
court’s grant of summary judgment was only partial, however,
in several ways: First, the court denied Plaintiffs’ motion for
summary judgment against several other officers in the face
of factual disputes about what they knew at the scene; the
Plaintiffs then abandoned those claims and the court
dismissed them with prejudice. Second, the court granted the
Defendants’ cross-motion for summary judgment on claims
against all of the officers in their official capacities,
dismissing those claims, too, with prejudice. Finally, the
Plaintiffs’ summary judgment motion was limited to liability,
leaving remedial determinations to the jury. At a trial on
damages, the jury awarded each Plaintiff between $35,000
and $50,000 in compensatory damages. The only questions
on this appeal address the validity of the partial summary
judgment liability holding.
For purposes of appeal of a grant of a plaintiff’s motion
for summary judgment, we view the facts in the light most
favorable to defendants. In the early morning hours of March
16, 2008, the MPD dispatched officers to investigate a

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complaint of illegal activities taking place at a house in
Washington, D.C. The officers heard loud music as they
approached the house and, upon entering, saw people acting
in a way they viewed as consistent “with activity being
conducted in strip clubs for profit”—several scantily clad
women with money tucked into garter belts, in addition to
“spectators . . . drinking alcoholic beverages and holding
[U.S.] currency in their hands.” Some of the guests scattered
into other rooms when the police arrived. The parties dispute
how fully the house was “furnished,” but the police observed
at least some folding chairs, a mattress, and working
electricity and plumbing.1
One of the Defendants-Appellants, Officer Anthony
Campanale, took photographs of the scene and, along with
other officers, interviewed everyone present to find out what
they were doing at the house. The partygoers gave conflicting
responses, with some saying they were there for a birthday
party and others that the occasion was a bachelor party.
Someone told Officer Campanale that a woman referred to as
“Peaches” had given them permission to be in the house;
others said that they had been invited to the party by another
guest. Peaches was not at the house. Nobody who was
present claimed to live there or could identify who owned the
house.
Another Defendant-Appellant, Officer Andre Parker,
spoke to a woman who told him that Peaches “was renting the
house from the grandson of the owner who had recently
1

The record also contains inconsistencies regarding what, if any,
contraband the police found. For example, the arrest report says that
Officer Parker recovered marijuana inside the house, but he acknowledged
in his deposition that he smelled—but did not find—marijuana.
Moreover, nothing in the record indicates that any of the officers observed
any drug-related activity.

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passed away and that [the grandson] had given permission for
all individuals to be in the house.” The woman then used her
cell phone to call Peaches. Officer Parker spoke to Peaches,
who refused to return to the house because she said she would
be arrested if she did. When Officer Parker asked who gave
her permission to be at the house, Peaches told Officer Parker
that he could “confirm it with the grandson.” Officer Parker
then used the same phone to call the apparent owner,
identified in the record only as Mr. Hughes, who told Officer
Parker that he was trying to work out a lease arrangement
with Peaches but had yet to do so.2 Hughes also told Officer
Parker that the people in the house did not have his
permission to be there that evening.
Sergeant Andre Suber, an MPD supervisor who was
acting as the watch commander that night, arrived on the
scene after the officers had begun their investigation. The
officers briefed Sergeant Suber, including telling him about
Parker’s conversations with Peaches and Hughes. Sergeant
Suber also spoke to Peaches directly by phone. According to
Sergeant Suber, Peaches told him that “she was possibly
renting the house from the owner who was fixing the house
up for her” and that she “gave the people who were inside the
place, told them they could have the bachelor party.” As the
police continued to talk to Peaches, she acknowledged that
she did not have permission to use the house. On that basis—
and notwithstanding the undisputed statements of both the
guests and Peaches that she had given them permission to be
at the house—Sergeant Suber ordered the officers to arrest
everyone for unlawful entry.

2

The record does not make clear how Officer Parker obtained Hughes’s
contact information or whether, at the time of the arrests, the police had
made any independent efforts to verify that Hughes was in fact the owner
of the house.

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After the police arrested and transported the partygoers to
the police station, Sergeant Suber and the lieutenant taking
over as watch commander discussed the appropriate charges
for the Plaintiffs. According to Sergeant Suber, the lieutenant
decided to change the charge to disorderly conduct after
speaking with a representative from the District of Columbia
Attorney General’s office. Sergeant Suber disagreed, but the
lieutenant overruled him. The officers who had been at the
house, including Sergeant Suber, each testified that they had
neither seen nor heard anything to justify a disorderly conduct
charge.
Sixteen of the arrestees sued five officers for false arrest
under 42 U.S.C. § 1983, the officers and the District for false
arrest under common law, and the District for negligent
supervision. On cross-motions for partial summary judgment
as to liability, the district court granted the parties’ motions in
part and denied both motions on some issues. The court ruled
in favor of the Plaintiffs on their claims of false arrest against
Officers Parker and Campanale in their individual capacities,
and on the common law false arrest and negligent supervision
claims against the District. Defendants appeal these liability
determinations.
II.
We review de novo a district court’s summary judgment
ruling, “apply[ing] the same standard of review applicable to
the underlying claims in the district court.” Defenders of
Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008). A
party is entitled to summary judgment where, “viewing the
evidence in the light most favorable to the nonmoving party
and drawing all reasonable inferences in the nonmoving
party’s favor,” Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1, 4
(D.C. Cir. 2011), this Court determines that “there is no

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genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
We begin with Plaintiffs’ entitlement to summary
judgment on their Section 1983 and common-law false arrest
claims. Because “[t]he elements of a constitutional claim for
false arrest are substantially identical to the elements of a
common-law false arrest claim,” we address the merits of
those claims together. See Scott v. District of Columbia, 101
F.3d 748, 753-54 (D.C. Cir. 1996) (citing Dellums v. Powell,
566 F.2d 167, 175 (D.C. Cir. 1977)). As with most falsearrest claims, Plaintiffs’ claims “turn on the issue of whether
the arresting officer[s] had probable cause to believe that
[Plaintiffs] committed a crime.” Id. at 754. Defendants argue
that the district court erred in finding the arrests unsupported
by probable cause because, in their view, the officers had
objectively valid bases to arrest the Plaintiffs both for
unlawful entry and disorderly conduct. In the alternative,
Defendants contend that, even if probable cause were lacking,
the officers are shielded from liability by qualified immunity
and a common-law privilege. We address these contentions
in turn.
A.
The assessment of probable cause is an objective one.
An arrest is supported by probable cause if, “at the moment
the arrest was made, . . . the facts and circumstances within
[the arresting officers’] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant
a prudent man in believing” that the suspect has committed or
is committing a crime. Beck v. Ohio, 379 U.S. 89, 91 (1964).
Based on the undisputed facts relevant to the knowledge
the police had at the time of the arrests, and “giv[ing] due

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weight to inferences drawn” by the officers, we consider de
novo whether those facts support a determination of probable
cause to arrest. Ornelas v. United States, 517 U.S. 690, 697,
699 (1996). Defendants contend that they were justified in
arresting Plaintiffs for unlawful entry and disorderly conduct.
To determine whether they had probable cause to believe that
Plaintiffs were violating District of Columbia law, we look to
District law to identify the elements of each of those offenses.
See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). Upon
examination of the relevant statutes and case law, we
conclude that no reasonable officer could have concluded that
there was probable cause to arrest Plaintiffs for either crime.
Unlawful Entry. At the time of Plaintiffs’ arrests,
District of Columbia law made it a misdemeanor for a person
to, “without lawful authority, . . . enter, or attempt to enter,
any public or private dwelling, building, or other property, or
part of such dwelling, building, or other property, against the
will of the lawful occupant or of the person lawfully in charge
thereof.” D.C. Code § 22-3302 (2008).3 To sustain a
conviction for unlawful entry, the government must prove that
“(1) the accused entered or attempted to enter public or
private premises or property; (2) he did so without lawful
authority; (3) he did so against the express will of the lawful
occupant or owner; and (4) general intent to enter.” Culp v.
United States, 486 A.2d 1174, 1176 (D.C. 1985).
The probable-cause inquiry in this case centers on the
third and fourth elements, which together identify the
culpable mental state for unlawful entry. See Ortberg v.
United States, 81 A.3d 303, 305 (D.C. 2013). Specifically,
3

Both the unlawful-entry statute (D.C. Code § 22-3302) and the
disorderly-conduct statute (D.C. Code § 22-1321) have been amended
since the events at issue here. Throughout this opinion, we refer to the
versions of the statutes in effect during the relevant time period.

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the question is whether a reasonable officer with the
information that the officers had at the time of the arrests
could have concluded that Plaintiffs knew or should have
known they had entered the house “against the will of the
lawful occupant or of the person lawfully in charge thereof,”
and intended to act in the face of that knowledge. D.C. Code
§ 22-3302; see Ortberg, 81 A.3d at 305; Artisst v. United
States, 554 A.2d 327, 330 (D.C. 1989).
Probable cause “does not require the same type of
specific evidence of each element of the offense as would be
needed to support a conviction.” Adams v. Williams, 407 U.S.
143, 149 (1972). But the police cannot establish probable
cause without at least some evidence supporting the elements
of a particular offense, including the requisite mental state.
United States v. Christian, 187 F.3d 663, 667 (D.C. Cir.
1999). Because the offense of parading without a permit, for
example, requires knowledge that no permit issued, “officers
who make such an arrest must have reasonable grounds to
believe” that the suspects knew no permit had been granted.
Carr v. District of Columbia, 587 F.3d 401, 410-11 (D.C. Cir.
2009).
In this case, the officers on the scene had three pieces of
information that could bear on whether the Plaintiffs knew or
should have known that they had entered a house against the
owner’s express will. First, the officers had Plaintiffs’
statements that they had been invited to some kind of party at
the house, with inconsistent and conflicting statements about
the type of party.
Second, the officers had explicit,
uncontroverted statements from Peaches and a guest at the
scene that Peaches had told the people inside the house that
they could be there. Finally, the officers had a statement by
the claimed owner of the house that he had been trying

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unsuccessfully to arrange a lease with Peaches and that he had
not given the people in the house permission to be there.
As a preliminary matter, Defendants argue that Peaches’
invitation is irrelevant to the determination of probable cause,
because whether the Plaintiffs had a bona fide belief in their
right to enter the house “simply raises a defense for the
criminal trial.” That argument misses the mark. The District
of Columbia Court of Appeals recently reiterated that “the
existence of a reasonable, good faith belief [in permission to
enter] is a valid defense precisely because it precludes the
government from proving what it must—that a defendant
knew or should have known that his entry was against the will
of the lawful occupant.” Ortberg, 81 A.3d at 309 (emphasis
added).
It is true that, if prosecuted for unlawful entry, a
defendant may raise as a defense that he entered the building
“with a good purpose and with a bona fide belief of his right
to enter.” Smith v. United States, 281 A.2d 438, 439 (D.C.
1971); see United States v. Thomas, 444 F.2d 919, 926 (D.C.
Cir. 1971); Ortberg, 81 A.3d at 308-09. But the cases
interpreting the unlawful-entry statute are clear and consistent
that such a defense is available precisely because a person
with a good purpose and bona fide belief of her right to enter
“lacks the element of criminal intent required” by the statute.
Smith, 281 A.2d at 439; see also McGloin v. United States,
232 A.2d 90, 91 (D.C. 1967) (dismissing concern about
unintentional violations of the statute, because “one who
enters for a good purpose and with a bona fide belief of his
right to enter is not guilty of unlawful entry”); Bowman, 212
A.2d 610, 611-12 (D.C. 1965) (“[O]ne who enters . . . for a
good purpose and with bona fide belief of his right to enter
. . . would not be guilty of an unlawful entry . . . .”).

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Thus, contrary to Defendants’ argument, Peaches’
invitation is central to our consideration of whether a
reasonable officer could have believed that the Plaintiffs had
entered the house unlawfully. That is because, in the absence
of any conflicting information, Peaches’ invitation vitiates the
necessary element of Plaintiffs’ intent to enter against the will
of the lawful owner. A reasonably prudent officer aware that
the Plaintiffs gathered pursuant to an invitation from someone
with apparent (if illusory) authority could not conclude that
they had entered unlawfully.
Ignoring the significance of Peaches’ invitation,
Defendants argue that Hughes’s statement that he had not
given the Plaintiffs permission to be in the house is
dispositive because a homeowner’s denial that he has given
permission to enter his property is sufficient to establish
probable cause to arrest for unlawful entry. We disagree.
Importantly, Hughes never said that he or anyone else had
told the Plaintiffs that they were not welcome in the house.
Peaches eventually admitted that she did not have permission
to be in the house or to invite others, but there is no evidence
that she had told the Plaintiffs as much. Indeed, the evidence
is uniform that the arrestees all were invited, and there is
simply no evidence in the record that they had any reason to
think the invitation was invalid. All of the information that
the police had gathered by the time of the arrest made clear
that Plaintiffs had every reason to think that they had entered
the house with the express consent of someone they believed
to be the lawful occupant.4 Accordingly, there was no
4

For this reason, Defendants’ contention that arresting officers are not
required to “sift through conflicting evidence or resolve issues of
credibility” is beside the point. Multiple officers on the scene testified that
they did not observe anything leading them to believe that the Plaintiffs
had any reason to think they lacked the right to be in the house. There is
also no evidence that the officers asked either Peaches or Hughes whether

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probable cause for the officers to believe that the Plaintiffs
entered the house knowing that they did so against the will of
the owner or occupant.
The cases on which Defendants rely do not compel a
different conclusion. Citing to McGloin, 232 A.2d 90, and
Culp, 486 A.2d 1174, Defendants argue that Hughes’s
statement was sufficient because “[t]he offense of unlawful
entry does not require any kind of prior warning in the case of
a private dwelling.” Br. for Appellants 22. Culp and
McGloin establish that an owner of a private dwelling need
not post any sign or warning in order to express an intent to
exclude the general public. See Culp, 486 A.2d at 1177
(probable cause for unlawful entry where the building is
vacant and “the property itself reveals indications of a
continued claim of possession by the owner or manager”);
McGloin, 232 A.2d at 91 (“[S]urely no one would contend
that one may lawfully enter a private dwelling house simply
because there is no sign or warning forbidding entry.”). But
those cases do not apply here, because the Plaintiffs did not
simply find a house that appealed to them and walk in off the
street; they entered the specified home at the invitation of
someone they reasonably believed was an authorized
inhabitant.
Defendants’ reading of Culp and McGloin would provide
probable cause to arrest for unlawful entry any individual in a
the Plaintiffs knew that Peaches had no right to be in the house. Had they
asked such questions and gotten an affirmative answer, Defendants’
argument would carry weight. See Wright v. City of Philadelphia, 409
F.3d 595, 603 (3d Cir. 2005) (officers entitled to discredit Section 1983
plaintiff’s innocent explanation for entry into a house in the face of
conflicting evidence); Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.
2002) (probable cause to make an arrest based on inculpatory statements
by a reliable informant, notwithstanding exculpatory statements from the
suspect that “tended to discredit [the informant’s] version of events”).

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private dwelling without the express permission of the owner.
Such a rule would transform the unlawful-entry statute from
one barring entry “against the will of the owner” into one
criminalizing entry “without the express invitation of the
owner.” A brunch host who overstays her lease does not
thereby expose her invited guests to arrest for unlawful entry,
nor does a person summoned onto property by a stranger who
appears to be the lawful inhabitant commit the crime of
unlawful entry if she reasonably fails to recognize that the
stranger is not the owner at all, but a traveling salesman.
What the unlawful-entry law requires is some showing that
the individual entered a place that she knew or should have
known she was not entitled to be.
The cases Defendants cite merely recognize that certain
factual circumstances not present here make it reasonable to
infer an interloper’s intent to enter against the will of the
owner. McGloin, for example, upheld an unlawful-entry
conviction where the defendant entered an apartment
building, ran up the fire escape and then onto the roof, and
said first that he was looking for his cat and then “for a friend
named DeWitt who lived in the building,” when no one by
that name lived there. 232 A.2d at 90. In his defense,
McGloin relied on Bowman, where the court held that an
entry into a semi-public space was not unlawful unless the
owner had given an express “warning to keep off,” which
could be expressed verbally or “by sign.” See McGloin, 232
A.2d at 91 (quoting Bowman, 212 A.2d at 611).
Distinguishing Bowman, the court emphasized that McGloin
entered “not a public or semi-public building,” but an
apartment building containing four private family dwellings.
Id. Under such circumstances, it was “more than plain that
wandering through the building, climbing on the roof or
perching on the fire escape would be against the will of the
owner.” Id.

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Culp addressed what inferences the police may
reasonably draw when a person enters a property that appears
to be vacant. In that case, the police saw three men, including
the defendant, inside a “dilapidated” public housing property.
See Culp, 486 A.2d at 1175. The men tried to leave through
the back door when they saw the police approaching, and the
defendant “could not explain his presence” when the officers
asked what he was doing there. Id. Culp challenged his arrest
for unlawful entry on the basis that the police lacked probable
cause to believe that he knew he was entering the house
against the will of the occupant. See id. The court found that
the officers had probable cause to arrest Culp because “there
were sufficient indications of efforts by [the housing
authority] to protect the property against intruders that the
officers could reasonably conclude that [Culp] knowingly
entered against the will of the person lawfully in charge.” Id.
at 1177 (quotation marks and ellipsis omitted). The housing
authority had made “continuous and diligent efforts to board
up the house” and at least some of the windows remained
boarded up when Culp entered. Id.
The arresting officers in this case, unlike those in
McGloin and Culp, observed nothing inconsistent with the
reason the Plaintiffs gave for being there—a reason that was
corroborated, rather than undermined, by the information that
Peaches gave to the officers: Peaches had invited them to her
new apartment. Defendants point to the “highly suspicious
and incriminating” activities the officers observed in the
house to bolster the argument that the officers had no reason
to credit the Plaintiffs’ explanation for their presence. But the
officers acknowledged that, other than the ostensible unlawful
entry, they did not see anyone engaging in illegal conduct.
Moreover, the activities they did observe—scantily clad
women dancing, bills slipped into their garter belts, and

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people
drinking—were
consistent
with
Plaintiffs’
explanations that they were there for a bachelor or birthday
party.5 To the extent that people scattered or hid when the
police entered the house, such behavior may be “suggestive”
of wrongdoing, but is not sufficient standing alone to create
probable cause. See Illinois v. Wardlow, 528 U.S. 119, 124
(2000) (noting that unprovoked flight “is not necessarily
indicative of wrongdoing,” but is suggestive enough that,
given other circumstances, may justify further investigation).
To the extent that the party involved semi-nude dancing or
stripping, it is hardly surprising that participants would retreat
as officers entered off the street.
As the district court explained, this is not a case in which
“the property was boarded up, door latches were broken, no
trespassing signs were posted or the manner of securing the
property indicated that the owner wanted others to keep out.”
Wesby v. District of Columbia, 841 F. Supp. 2d 20, 33
(D.D.C. 2012). Notwithstanding the parties’ dueling
characterizations of how furnished and inhabited the house
appeared, there is nothing in the record suggesting that the
condition of the house, on its own, should have alerted the
Plaintiffs that they were unwelcome. To the contrary, that the
house had sparse furnishings and functioning utilities was
entirely consistent with one individual’s statement to Officer
Parker that Peaches was the new tenant in a house previously
occupied by the owner’s recently deceased grandfather.

5

In their brief, Defendants suggest that the evidence “showed that the
suspects were using the house for unlawful activities, including drug use
and prostitution” and cite to a variety of criminal statutes prohibiting that
type of conduct. Br. for Appellants 30. Notably, however, Defendants do
not attempt to justify Plaintiffs’ arrests on any of those grounds, and
entirely ignore that the officers uniformly testified that they did not see
any evidence of drugs or similar illegal activity.

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It bears emphasizing that Defendants are incorrect to
suggest that our conclusion could render the unlawful-entry
statute “unenforceable in most circumstances” or leave the
police “powerless to make arrests for unlawful entry” in
analogous situations. Br. for Appellants 24. The police were
by no means powerless in this case. At a minimum, after
speaking with Hughes and determining that he had not given
Peaches permission to use the house, the officers could have
told the Plaintiffs that they lacked permission to be there and
so must leave. Had the officers “personally asked [the
Plaintiffs] to leave and [the Plaintiffs] had refused,” such a
refusal would have supplied the probable cause the officers
needed to make an arrest for unlawful entry. District of
Columbia v. Murphy, 631 A.2d 34, 38 (D.C. 1993); see id. at
37 (“The offense of unlawful entry includes . . . cases where a
person who has entered the premises with permission
subsequently refuses to leave after being asked to do so by
someone lawfully in charge.”).
In sum, when faced with the facts and circumstances
presented in this case—and, in particular, without any
evidence that the Plaintiffs knew or should have known they
were in the house against the will of the owner or lawful
occupant—a reasonable officer could not have believed there
was probable cause to arrest the Plaintiffs for unlawful entry.
Disorderly Conduct. Defendants argue in the alternative
that the officers had probable cause to arrest the Plaintiffs for
disorderly conduct. At the time of the Plaintiffs’ arrests, the
relevant statute made it a crime to “shout[] or make[] a noise
either outside or inside a building during the nighttime to the
annoyance or disturbance of any considerable number of
persons,” either with the intent “to provoke a breach of the
peace, or under circumstances such that a breach of the peace
may be occasioned thereby.” D.C. Code § 22-1321(3) (2008).

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The “breach of the peace” clause qualifies the remainder of
the statute “and sets forth an essential element of the offense.”
In re T.L., 996 A.2d 805, 810 (D.C. 2010).
Plaintiffs point to the evidence in the record that the
arresting officers themselves did not believe there was
evidence to support a disorderly conduct charge. As long as
the arresting officers “had an objectively valid ground upon
which” to make an arrest, however, the subjective knowledge
and intent of the officers is irrelevant. United States v.
Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002); see Whren v.
United States, 517 U.S. 806, 813 (1996). Thus, even where
police do not believe evidence suffices, or are unsure which
of several offenses the suspect may have committed, an arrest
is valid so long as, on the facts of which the officers were
aware, an objective observer can discern probable cause. See,
e.g., United States v. Broadie, 452 F.3d 875, 881 (D.C. Cir.
2006) (citing Devenpeck v. Alford, 543 U.S. 146, 153 (2004));
Bookhardt, 277 F.3d at 566; United States v. Prandy-Binett,
995 F.2d 1069, 1073-74 (D.C. Cir. 1993); see also Jaegly v.
Couch, 439 F.3d 149, 154 (2d Cir. 2006) (Sotomayor, J.)
(“[W]hen faced with a claim for false arrest, we focus on the
validity of the arrest, and not on the validity of each charge.”).
Defendants are thus correct that the arresting officers’
subjective belief that they lacked probable cause to arrest the
Plaintiffs for disorderly conduct is not dispositive. What
matters is whether, on the facts the officers knew at the time,
a reasonably prudent officer could have found that the
Plaintiffs were engaging in disorderly conduct. See Whren,
517 U.S. at 813; Bookhardt, 277 F.3d at 566.
The officers here, however, accurately estimated the
evidence as inadequate to support probable cause to believe
that the Plaintiffs’ conduct was disorderly. As the district
court recognized, some evidence suggested “the police were

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told of reports of a loud party or loud music and some officers
heard loud music upon arrival.” Wesby, 841 F. Supp. 2d at
34. But Defendants exaggerate the nature and quantum of
that evidence as showing that Plaintiffs had “disturbed the
tranquility and nighttime slumber of the community
residents.” Br. for Appellants 32. The evidence on which
Defendants rely shows nothing more than that one neighbor
had called to complain about noise that evening.6 A
disorderly conduct violation under District of Columbia law
requires that an arrestee disturbed a “considerable number of
persons” and acted “under circumstances such that a breach of
the peace may” have been occasioned by that arrestee’s
6

To the extent that the Defendants rely on Officer Campanale’s trial
testimony, that testimony was not before the district court at summary
judgment and therefore is not part of the record on review of the grant of
summary judgment. See Biegas v. Quickway Carriers, Inc., 573 F.3d 365,
374 (6th Cir. 2009); U.S. East Telecommc’ns, Inc. v. US West Commc’ns
Servs., Inc., 38 F.3d 1289, 1301 (2d Cir. 1994). On the other hand, to the
extent that Defendants refer to statements in the summary judgment record
reflecting complaints from neighbors about the noise emanating from the
house, such evidence is entitled to our consideration. Plaintiffs object to
some of that evidence based on the prohibition against hearsay. See Greer
v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay . . .
counts for nothing on summary judgment.” (internal quotation marks
omitted)). But those statements would not be admitted for their truth (e.g.,
whether there was in fact loud music) but instead to show what
information the officers had about the nature and scope of the disturbance
at the time of the arrest. See Fed. R. Evid. 801(c); Royall v. Nat’l Ass’n of
Letter Carriers, AFL-CIO, 548 F.3d 137, 145 (D.C. Cir. 2008)
(considering, on summary judgment, evidence contested as hearsay on the
basis that statements were not offered for the truth of the matter asserted);
see also Draper v. United States, 358 U.S. 307, 311-12 (1959) (rejecting
contention that officers may not consider hearsay in probable cause
assessment). As our discussion makes clear, however, that evidence is
relevant to the legal determination of probable cause. See, e.g., United
States v. Branch, 545 F.2d 177, 184-85 (D.C. Cir. 1976) (emphasizing that
the probable cause determination in Draper, though based in part on
hearsay evidence, was appropriate because that evidence “was explicitly
detailed and corroborated by events as they transpired”).

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conduct. D.C. Code § 22-1321 (2008); In re T.L., 996 A.2d at
808-09 (concluding that defendant did not create “breach of
the peace” within the meaning of the statute despite the fact
that “some ten to fifteen people left their town houses” in
order to observe the “clamor” that defendant caused by
yelling loudly on the street). Even viewing it, as we must, in
the light most favorable to the Defendants, the evidence here
simply does not rise to that level.7
For all of these reasons, we conclude that the officers
lacked probable cause to arrest the Plaintiffs for unlawful
entry or disorderly conduct.
B.
Having concluded that Plaintiffs’ arrests were
unsupported by probable cause, we must consider whether
qualified immunity shields the officers from liability. “An
officer is entitled to qualified immunity, despite having
engaged in constitutionally deficient conduct, if, in doing so,
she did not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Brosseau v. Haugen, 543 U.S. 194, 205 (2004)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If
Officers Parker and Campanale had “an objectively
reasonable basis for believing that the facts and circumstances
surrounding [Plaintiffs’] arrest were sufficient to establish
probable cause,” Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C.
Cir. 1993) (citing Malley v. Briggs, 475 U.S. 335, 341
7

Our conclusion that there was insufficient evidence for a reasonable
officer to conclude that the noise from the house had disturbed a
considerable number of people necessarily forecloses Defendants’
argument that “there was probable cause to believe the plaintiffs, as a
group, had engaged in disorderly conduct.” See Br. for Appellants 33
(citing Carr, 587 F.3d at 407).

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(1986)), they would be immune from Plaintiffs’ suit for
damages.
As with all cases examining whether a particular right
was sufficiently clear, “[w]e begin by establishing the
appropriate level of generality at which to analyze the right at
issue.” Johnson v. District of Columbia, 528 F.3d 969, 975
(D.C. Cir. 2008); see, e.g., Wilson v. Layne, 526 U.S. 603,
614-15 (1999); Anderson v. Creighton, 483 U.S. 635, 639-40
(1987). Here, the question is whether, in light of clearly
established law and the information that Officers Parker and
Campanale had at the time, it was objectively reasonable for
them to conclude that there was probable cause to believe
Plaintiffs were engaging in either unlawful entry or disorderly
conduct. See Wilson, 526 U.S. at 615. This inquiry into the
“objective legal reasonableness” of the officers’ actions
parallels but does not duplicate the reasonableness aspect of
the Fourth Amendment probable cause analysis. See Johnson,
528 F.3d at 976 (describing the two Saucier steps as “distinct
but overlapping”).
To determine whether the officers “strayed beyond
clearly established bounds of lawfulness,” id., we look first to
“cases of controlling authority,” Youngbey v. March, 676 F.3d
1114, 1117 (D.C. Cir. 2012) (quoting Wilson, 526 U.S. at
617).
It is not enough to reiterate that the Fourth
Amendment’s restrictions against arrest without probable
cause are clearly established; the inquiry must be made more
contextually, at a finer level of specificity. At the same time,
“[w]e need not identify cases with materially similar facts, but
have only to show that the state of the law at the time of the
incident gave the officer[s] fair warning” that their particular
conduct was unconstitutional. Johnson, 528 F.3d at 976
(brackets, ellipsis, and quotation marks omitted).

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Turning first to the claim of false arrest for unlawful
entry, we conclude that no reasonable officer could have
believed there was probable cause to arrest Plaintiffs for
entering unlawfully where, as here, there was uncontroverted
evidence that Plaintiffs believed they had entered at the
invitation of a lawful occupant. Defendants argue that,
because no case identified by Plaintiffs had “invalidated an
arrest for unlawful entry under similar circumstances,” it was
not clearly established that arresting Plaintiffs for unlawful
entry was unconstitutional. But that is not the applicable
standard. Qualified immunity need not be granted every time
police act unlawfully in a way that courts have yet to
specifically address. See, e.g., Safford Unified Sch. Dist. No.
1 v. Redding, 557 U.S. 364, 377 (2009) (“To be established
clearly, . . . there is no need that the very action in question
have previously been held unlawful.” (brackets and internal
quotation marks omitted)); Hope v. Pelzer, 536 U.S. 730, 741
(2002) (“[O]fficials can still be on notice that their conduct
violates established law even in novel factual
circumstances.”).
The law in this jurisdiction has been well established for
decades that probable cause to arrest requires at least some
evidence that the arrestee’s conduct meets each of the
necessary elements of the offense that the officers believe
supports arrest, including any state-of-mind element. See,
e.g., Carr, 587 F.3d at 410-11; Christian, 187 F.3d at 667.
Under District of Columbia law, criminal intent is a necessary
element of the offense of unlawful entry. A person who has a
good purpose and bona fide belief of her right to enter “lacks
the element of criminal intent required” to violate the
unlawful-entry statute.
Smith, 281 A.2d at 439.
Notwithstanding Defendants’ suggestion to the contrary, see
Oral Arg. Rec. at 5:40-5:52, District of Columbia unlawfulentry law predating the conduct in this case plainly required

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that a suspect “knew or should have known that his entry was
unwanted.” Ortberg, 81 A.3d at 308 (collecting cases); see
also id. at 307-08 (explaining that, although “lack[ing] some
precision,” prior discussions of “the mental states for entry
and for doing so ‘against the will’ of the lawful occupant are
both clearly discernible and distinct”).
The controlling case law in this jurisdiction therefore
made perfectly clear at the time of the events in this case that
probable cause required some evidence that the Plaintiffs
knew or should have known that they were entering against
the will of the lawful owner. Defendants are simply incorrect
to suggest that the officers could not have known that
uncontroverted evidence of an invitation to enter the premises
would vitiate probable cause for unlawful entry. See Harlow,
457 U.S. at 819 (“[A] reasonably competent public official
should know the law governing his conduct.”).
The same analysis holds true with respect to the clarity of
the Fourth Amendment right against false arrest for disorderly
conduct. Defendants contend that the law was not clearly
established at the time of Plaintiffs’ arrests because there was
no case law interpreting the specific provision of the statute
on which Defendants rely. They correctly point out that the
first case from the District of Columbia Court of Appeals
interpreting subsection (3) of D.C. Code § 22-1321 was
decided after the arrests in this case. See In re T.L., 996 A.2d
at 810 (“This is the first prosecution under subsection (3) of
the statute that has come to our attention.”). But the plain text
of that provision requires the disturbance of a “considerable
number of persons.” D.C. Code § 22-1321(3). Whatever a
“considerable number of persons” means, surely it must mean
something more than a single individual. And yet there is no
evidence in this case that the loud music the officers heard
when approaching the house disturbed anyone other than one
neighbor who had complained.

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Put differently, we believe that the language of the
disorderly conduct statute, standing alone, was sufficient to
give fair notice that there was no probable cause to make an
arrest under these circumstances. We do not doubt, as the In
re T.L. court acknowledged, that some parts of that provision
may “pose their own interpretive issues.” 996 A.2d at 810.
That does not mean, however, that distinct elements of the
offense were unclear in the absence of case law interpreting
the statute. See United States v. Lanier, 520 U.S. 259, 266-67
(1997) (analogizing clearly established standard to fair
warning principles in the context of criminal prosecutions,
and noting that “the touchstone is whether the statute, either
standing alone or as construed, made it reasonably clear at
the relevant time that the defendant’s conduct was criminal”
(emphasis added)); cf. Vinyard v. Wilson, 311 F.3d 1340,
1350 (11th Cir. 2002) (noting that “the pertinent federal
statute or federal constitutional provision in some cases will
be specific enough to establish clearly the law applicable to
particular conduct and circumstances and to overcome
qualified immunity, even in the total absence of case law”).
Finally, we reject Defendants’ arguments that Officers
Parker and Campanale cannot be held liable under Section
1983 because (1) they followed Sergeant Suber’s order to
arrest the Plaintiffs, and (2) they were not each individually
responsible for each of the Plaintiffs’ arrests.
An officer is not necessarily entitled to qualified
immunity simply because he relies on a supervisor’s decision
to arrest. In evaluating the objective legal reasonableness of
an officer’s position for purposes of qualified immunity,
approval by a superior officer is “pertinent” but not
“dispositive.” Messerschmidt v. Millender, 132 S. Ct. 1235,
1249 (2012); cf. Malley v. Briggs, 475 U.S. 335, 345-46
(1986) (rejecting the notion that approval of a warrant by a
neutral magistrate automatically establishes qualified

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immunity, and requiring instead that the officer exercise his
own “reasonable professional judgment”). Defendants argue
to the contrary primarily in reliance on Elkins v. District of
Columbia, 690 F.3d 554 (D.C. Cir. 2012), in which we held
that an inspector from the Historic Preservation Office, a
government agency “charged with protecting the city’s
historic structures,” was entitled to qualified immunity for her
unlawful seizure of the plaintiff’s notebooks. Id. at 559, 56768. Elkins held that, although the inspector had been
personally involved in the unconstitutional seizure, it was
reasonable for her not to know that her actions were unlawful.
See id. at 568 (“The appropriate question for us to ask is
whether it would have been clear to a reasonable official in
[the inspector’s] situation that seizing [the plaintiff’s]
notebook was unlawful.”). Significantly, the inspector in that
case was not a law enforcement officer at all, but “a junior
member of the search team present to take pictures in an
inspection led by police and her superiors.” Id. Moreover,
the Elkins court emphasized in granting qualified immunity
that, although the inspector ultimately “relied upon the
judgment of her supervisor and the police officer in charge,”
she did not blindly follow their orders. Id. Rather, she first
“asked [them] about the permissible scope of the search.” Id.
Based on those and other factors, the court concluded that her
actions, “though mistaken, were not unreasonable.” Id.
(citing Pearson v. Callahan, 555 U.S. 223, 244 (2009)).
The circumstances here, unlike in Elkins, do not show the
officers’ unquestioning reliance on Sergeant Suber’s arrest
order to be reasonable. See id. at 569 (“Whether an official’s
reliance [on her supervisor] is reasonable will always turn on
several factors . . . .”). In contrast to the historic preservation
investigator in Elkins, Officers Parker and Campanale are
police officers with the independent authority to make arrests
while on patrol. Indeed, had Sergeant Suber not come out to

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the scene, they would have had to make the arrest
determinations on their own. Police officers charged with
enforcing the criminal statutes are expected to know the
limitations on their authority, see Harlow, 457 U.S. at 819,
and, as discussed above, a reasonably competent officer faced
with the information the officers had gathered in this case
should have known that he lacked probable cause to make an
arrest.
This is also not a case, like Elkins and the decisions cited
therein, in which the defendant officers played little or no role
in the investigation. See Elkins, 690 F.3d at 569 (citing, by
way of example, a case in which officers did not play a “key
role in the overall investigation”). Here, Officers Parker and
Campanale were actively involved in surveying the scene and
gathering information regarding the Plaintiffs’ knowledge and
reason for being in the house, and Officer Parker spoke to
both Peaches and Hughes by phone. Both officers, moreover,
were aware of the key uncontroverted facts in this case: that
Peaches had invited the Plaintiffs to the house, and that the
Plaintiffs had no reason to doubt that Peaches had the right to
extend such an invitation. Under these circumstances, it was
not reasonable for the officers to rely on Sergeant Suber’s
unlawful decision to arrest the Plaintiffs. Yet another factor
present in Elkins but missing in this case is that neither
Officer Parker nor Officer Campanale raised the question—to
Sergeant Suber or anyone else—whether there was evidence
that the Plaintiffs knew or should have known that their
presence in the house was unauthorized. Indeed, there is no
evidence in the record suggesting that Officer Parker or
Officer Campanale in fact disagreed with Sergeant Suber’s
determination that there was probable cause for an arrest but
carried out the arrests because they were under orders to do
so.

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That the officers were apparently as confused or
uninformed about the law as their supervisor does not make it
reasonable for them to have arrested the Plaintiffs in reliance
on his flawed assessment. Cf. Malley, 475 U.S. at 346 n.9
(“The officer . . . cannot excuse his own default by pointing to
the greater incompetence of the magistrate.”); Messerschmidt,
132 S. Ct. at 1252 (Kagan, J., concurring in part and
dissenting in part) (2012) (“[W]hat we said in Malley about a
magistrate’s authorization applies still more strongly to the
approval of other police officers . . . .”). This Court has never
held that qualified immunity permits an officer to escape
liability for his unconstitutional conduct simply by invoking
the defense that he was “just following orders.” See generally
Hobson v. Wilson, 737 F.2d 1, 67 (D.C. Cir. 1984) (statement
denying petition for rehearing) (per curiam) (rejecting with
“no hesitation” the defendants’ argument, raised for the first
time in petition for rehearing, that the existence of an illegal
policy excused low-level government officials from liability).
Indeed, “[i]n its most extreme form, this argument amounts to
the contention that obedience to higher authority should
excuse disobedience to law, no matter how central the law is
to the preservation of citizens’ rights.” Id. For good reason,
this Court has never adopted such a rule.
That leaves us with the contention that Officers Parker
and Campanale cannot be held liable because they did not
personally arrest each of the Plaintiffs. But Defendants’
argument misapprehends the applicable legal standard for
causation in the Section 1983 context. As this court has
recognized, the Plaintiffs were required to “produce evidence
‘that each [officer], through [his] own individual actions, has
violated the Constitution.’” Elkins, 690 F.3d at 564 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Here, the cause
of the group arrest was the investigation and erroneous
determination regarding probable cause. Both Officers Parker

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and Campanale were the hub of that investigation: they
gathered evidence, including photographs of the people in the
house, and actively participated in questioning the Plaintiffs
and other key witnesses such as Hughes and Peaches. See id.
at 566-68 (assessing whether the evidence showed that the
individual officers caused the unlawful seizure, and noting in
one instance that the defendant’s actions were “instrumental
to the seizure”). In this context, that is sufficient to establish
causation. See, e.g., KRL v. Estate of Moore, 512 F.3d 1184,
1193 (9th Cir. 2008) (denying qualified immunity to an
officer who relied on a facially invalid warrant in conducting
a search because he played “an integral role in the overall
investigation” that led to the issuance of the defective
warrant); Hall v. Shipley, 932 F.2d 1147, 1154 (6th Cir. 1991)
(recognizing general rule that mere presence is insufficient to
create liability, but upholding denial of qualified immunity
based on record evidence that the officer had been “the prime
mover” in obtaining the search warrant and “participated in
the search once inside the dwelling” (internal quotation marks
omitted)); James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990)
(officers who did not physically perform pat-down but who
“remained armed on the premises throughout the entire
search” could be held liable under Section 1983 as
“participants rather than bystanders”).
Because the common-law privilege Defendants invoke
overlaps with but is harder to establish than qualified
immunity, the Defendants’ argument on that score “fails for
essentially the same reasons already set forth.” District of
Columbia v. Minor, 740 A.2d 523, 531 (D.C. 1999) (noting
that the standard for common-law privilege “resembles
the section 1983 probable cause and qualified immunity
standards . . . (with the added clear articulation of the
requirement of good faith)”); cf. Bradshaw v. District of
Columbia, 43 A.3d 318, 323 (D.C. 2012) (explaining that

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although the officer “need not demonstrate probable cause in
the constitutional sense” for privilege to attach, the officer
must show “(1) he or she believed, in good faith, that his or
her conduct was lawful, and (2) this belief was reasonable”
(brackets and internal quotation marks omitted)).
Accordingly, we affirm the district court’s judgment insofar
as it relates to Plaintiffs’ Section 1983 and common-law false
arrest claims.
III.
Finally, we address the District’s claim that the district
court erred in granting summary judgment to the Plaintiffs on
their common-law negligent supervision claim. The District
makes two arguments in support of its contention that the
district court erred. First, the District contends that the
negligent supervision claim must fail because the arrests were
supported by probable cause, so either the standard of care
was met or there was no underlying tort. That argument,
however, is foreclosed by our conclusion that the officers
lacked probable cause to arrest the Plaintiffs.
Second, the District argues that it was entitled to
summary judgment on this claim because the Plaintiffs failed
to present expert testimony regarding the standard of care.
We disagree. District of Columbia law requires expert
testimony only where “the subject in question is so distinctly
related to some science, profession or occupation as to be
beyond the ken of the average layperson.” Godfrey v.
Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009) (quoting District
of Columbia v. Arnold & Porter, 756 A.2d 427, 433 (D.C.
2000)). Moreover, although the District correctly points out
that courts often require expert testimony where the training
and supervision of police officers is concerned, see Br. for
Appellants 43 (citing cases), the fact that the supervising

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official was on the scene and directed the officers to make the
unlawful arrests distinguishes this case from those in which
expert testimony has been required. See Godfrey, 559 F.3d at
573 (no expert testimony required where “the individual with
supervisory authority (Iverson) was present when his
employee (his personal bodyguard Kane) committed the
tortious acts”); District of Columbia v. Tulin, 994 A.2d 788,
797 (D.C. 2010) (no expert testimony required where police
sergeants were on the scene and authorized arrest without
inquiring into “critical information” about the incident).
Indeed, the undisputed facts in this case demonstrate that
Sergeant Suber, one of the District’s supervisory officials,
directed his subordinates to make an arrest that he should
have known was unsupported by probable cause. That is
sufficient to entitle the Plaintiffs to judgment as a matter of
law on their negligent supervision claim. See Phelan v. City
of Mount Rainier, 805 A.2d 930, 937-38 (D.C. 2002) (“To
establish a cause of action for negligent supervision, a
plaintiff must show: that the employer knew or should have
known its employee behaved in a dangerous or otherwise
incompetent manner, and that the employer, armed with that
actual or constructive knowledge, failed to adequately
supervise the employee.” (internal quotation marks omitted)).
* * *
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.

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BROWN, Circuit Judge, dissenting:
The court today articulates a broad new rule—one that
essentially removes most species of unlawful entry from the
criminal code. Officers must prove individuals occupying
private property know their entry is unauthorized; otherwise
police lack probable cause to make arrests. Moreover, any
plausible explanation resolves the question of culpability in
the suspects’ favor. Thus, unless the property is posted with
signs or boarded up and attempts to prevent access have been
deliberately breached, i.e., there is direct evidence of
unauthorized entry, law enforcement’s options are limited to
politely asking any putative invitee to leave.
I respectfully dissent.
I
Summary resolution is inappropriate where—as here—
the probable cause determination turns on close questions of
credibility, as well as the reasonability of inferences regarding
culpable states of mind that officers draw from a complicated
factual context. See Media Gen., Inc. v. Tomlin, 387 F.3d
865, 871 (D.C. Cir. 2004) (“[Where] the material facts are
susceptible to divergent inferences . . . the [] Court ha[s] no
basis upon which to grant summary judgment.”).
The Court concludes that, as a matter of law, no
reasonably prudent officer could believe Plaintiffs entered
unlawfully because the undisputed evidence shows an
individual with (illusory) authority invited their entry,
vitiating Plaintiffs’ formation of the requisite intent. Maj. Op.
at 11. Yet the mere presence of an invitation by one with
ostensible authority is not dispositive if, under the totality of
the circumstances, the officers could still conclude the
suspects knew or reasonably should have known their
invitation was against the will of the lawful owner. See

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Ortberg v. United States, 81 A.3d at 308 (D.C. 2013). The
absence of direct, affirmative proof of a culpable mental state
is not the same thing as undisputed evidence of innocence.
The court relies on two primary precedents to raise the
bar, but neither Ortberg v. United States, 81 A.3d 303 (D.C.
2013) nor United States v. Christian, 187 F.3d 663 (D.C. Cir.
1999) justifies the impossible standard for finding probable
cause the court now proposes. Channeling Dr. Frankenstein,
the court cobbles together a few recognizable parts to build a
grotesque and unnatural whole. In Ortberg, the court
recognized a bona fide belief in the right to enter as a defense
to a charge of unlawful entry. Ortberg was not a probable
cause case; it confirmed that all elements of unlawful entry,
including requisite criminal intent, are necessary to sustain a
conviction, while emphasizing that bona fide belief must have
some reasonable basis. It is “not sufficient that an accused
merely claim a belief of a right to enter.” Id. at 309, n.12.
United States v. Christian does impose a higher probable
cause standard but that case is distinguishable. First,
Christian involved a specific intent crime. See generally
Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994)
(“[A]n officer need not have probable cause for every element
of an offense[,]. . . however, when specific intent is a required
element of the offense, the arresting officer must have
probable cause for that element.”). Second, Christian did not
require direct evidence. The court cited Adams v. Williams,
407 U.S. 143, 149 (1972), acknowledging that the
circumstances surrounding an arrest may support the
necessary inference of unlawful possession. Christian, 187
F.3d at 406. The problem with the government’s argument in
Christian was not the absence of direct proof of criminal
intent, it was the absence of any evidence whatsoever of

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unlawful possession. “[T]he officers [therefore] lacked
probable cause to believe a crime had been committed.” Id.
Today’s decision undercuts the ability of officers to arrest
suspects in the absence of direct, affirmative proof of a
culpable mental state; proof that must exceed a nebulous but
heightened sufficiency burden that the Court declines to
specify. The Court’s decision broadly extends Ortberg and
Christian to apply standards designed for materially disparate
contexts to the probable cause inquiry for general intent
crimes. Cf. Pierce v. United States, 402 A.2d 1237, 1246 n.2
(D.C. Cir. 1979) (“Sentences out of context rarely mean what
they seem to say.”). As a result, the Court finds officers may
only lawfully arrest suspects for unlawful entry where the
officers have evidence affirmatively proving each element of
an offense, including clear proof of what the suspect knew or
reasonably should have known. But cf. 1 Corinthians 2:11
(“For who knows a person’s thoughts except their own spirit
within them?”). This is tantamount to an invitation to abuse
vacation rentals or houses being marketed for sale or lease
where prospective tenants can gain entry and retain or
misappropriate a key or a lockbox combination, or leave a
point of entry unsecured. Such a heightened threshold is not
called for under our precedents. For general intent crimes,
“[p]robable cause does not require the same type of specific
evidence of each element of the offense as would be needed
to support a conviction,” Adams v. Williams, 407 U.S. 143,
149 (1972). The proper inquiry is not whether the element of
knowledge was conclusively satisfied; it is instead whether,
based on the totality of the circumstances, officers could
reasonably believe Plaintiffs committed the offense of
unlawful entry.
The Court concludes there was insufficient evidence to
support arrest because the evidence that Plaintiffs were

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invitees was uncontradicted, noting the presence of semi-nude
dancing and the semi-furnished state of the home are
consistent with Plaintiffs’ contentions of their innocent
attendance at a party. Maj. Op. at 15–16. A jury might credit
Plaintiffs’ depiction of events, their claims of innocent
reliance upon a credible invitation, and conclude they lacked
knowledge of the unlawfulness of their entry. However, for
purposes of summary judgment, Plaintiffs’ lack of knowledge
must not be merely “consistent” with the evidence gathered
by the police. Instead, Plaintiffs’ lack of knowledge must be
the only reasonable inference the officers could draw.
Here the totality of the circumstances could cause
reasonable minds to question whether Plaintiffs were as
blameless as the attendees of a Sunday brunch whose
imprudent host has overstayed her lease. Contra Maj. Op. at
13 (finding this case indistinguishable from such a scenario).
The officers responded to a call reporting illegal activity in a
home at least some residents of the neighborhood knew to be
vacant. As the officers entered, the partygoers’ first response
was to scatter into different rooms or hide. The house’s
interior was bare and in disarray; beyond fixtures or large
appliances, it contained only folding chairs and food, and one
room upstairs had a bare mattress and lighted candles—along
with “females . . . that had provocative clothing on with
money in . . . their garter belt[s].” Parker Dep. 14:12–16. 1
After rounding up and interviewing the partygoers, the
officers found their claim to lawful entry was an invitation
1

The Court characterizes such minimalist furnishings as consistent
with a new tenant. Maj. Op. at 16. But the sparseness of the
house’s decor is also consistent with a temporarily unoccupied
home; a venue choice that reasonably discerning guests might find
somewhat abnormal—though perhaps not conclusively so—for a
run-of-the-mill house party.

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from the house’s supposed tenant, Peaches, who was
“throwing a party.” However, Peaches was not actually
present when the officers arrived on the scene. The
partygoers also gave inconsistent explanations for the party to
which they had allegedly been invited. Some claimed to be
attending a birthday party while others insisted it was a
bachelor’s party; in any event, none could identify the guest
of honor.
When ultimately reached by telephone, Peaches admitted
to inviting various partygoers, and claimed she had
permission to enter, an assertion she quickly recanted in a
series of conflicting answers she made to investigators before
becoming evasive and hanging up. The officers also
confirmed from the actual owner that the house had been
vacant since its last resident’s death, the current owner was
attempting to rent the property out, and neither Peaches nor
anyone else had the owner’s permission to enter or use the
premises.
The totality of the evidence does not need to show the
officers’ beliefs regarding the unlawfulness of Plaintiffs’
entry were “correct or more true than false. A practical,
nontechnical probability . . . is all that is required.” Texas v.
Brown, 460 U.S. 730, 742 (1983). The surrounding context
may not convince a jury to find probable cause. But likewise,
taken in the light most favorable to the officers, the facts are
not so clear cut that no reasonable officer could believe the
partygoers knew or should have known Peaches’ invitation
was not credible or that their entry into the home was not
properly authorized.
This is not a case where officers “turn[ed] a blind eye
toward potentially exculpatory evidence in an effort to pin a
crime on someone.” Ahlers v. Schebil, 188 F.3d 365, 372 (6th

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Cir. 1999). Nor did officers lack “any” evidence Plaintiffs
committed the offense of unlawful entry. See Christian, 187
F.3d at 667. The circumstances surrounding the arrest were
sufficient to support the inference that the suspects knew or
reasonably should have known their entry was unlawful.
“[T]he real key . . . [to probable cause] is how [an]
observed transaction fits into the totality of the
circumstances.” Jefferson v. United States, 906 A.2d 885,
888 (D.C. 2006) (noting observation of a one-way transfer of
an unidentified object can, in some cases, support probable
cause for an unlawful two-way exchange of drugs for money).
The officers did not ignore Plaintiffs’ potentially exculpatory
claims of invitation. See Fridley v. Horrighs, 291 F.3d 867,
874–75 (6th Cir. 2002) (officers may not ignore exculpatory
facts that tend to negate an element of an offense). Instead,
during the course of a fast-moving investigation, officers
considered and investigated Plaintiffs’ statements, and
rendered a determination that their claims of bona fide good
faith were insufficiently credible to overcome the surrounding
facts and circumstances. See Minch v. D.C., 952 A.2d 929,
937–38 (D.C. 2008) (noting police suspicion was reasonably
based on appellant’s evasiveness and equivocation,
particularly in a fast-moving investigation).
The very purpose of a totality of the circumstances
inquiry is to allow law enforcement officers to approach such
ambiguous facts and self-interested or unreliable statements
with an appropriately healthy dose of skepticism, and decline
to give credence to evidence the officers deem unreliable
under the circumstances. Cf. Illinois v. Gates, 462 U.S. 213,
243 n.13 (1983) (“In making a determination of probable
cause the relevant inquiry is not whether particular conduct is
‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches
to particular types of non-criminal acts.”). The Court’s

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holding to the contrary ensures that all but the most
implausible claims of invitation must be credited and radically
narrows the capacity of officers to use their experience and
prudent judgment to assess the credibility of the selfinterested statements of intruders who claim to have been
“invited” and have not overtly forced their entry into a home.
In light of the facts known to the officers at the time of
the arrests, summary judgment is unwarranted on the question
of probable cause for unlawful entry.
From their
investigation, the officers knew the house was an unoccupied
private rental dwelling, which would likely not require a sign
or express warning forbidding entry. See McGloin v. United
States, 232 A.2d 90, 91 (D.C. 1967). They further determined
none of the Plaintiffs owned or rented the house; that the
property was, in fact, vacant; and the true owner had provided
neither the partygoers nor any tenants with permission to
enter, see Culp v. United States, 486 A.2d 1174, 1177 n.4
(D.C. 1985) (“[T]he arresting officers’ knowledge that the
property is vacant and closed to the public is material to a
determination of probable cause.”). Plaintiffs’ party was
taking place in a home so sparsely furnished as to be
consistent with a vacant building; the guests’ immediate
response to the presence of police was to run and hide, an
action suggestive of consciousness of guilt; the partygoers
gave conflicting accounts about “why” the party was being
held; and they purported to rely on an invitation from a
“tenant” who was not actually present. When reached by
telephone the “tenant” gave conflicting accounts as to her
own permission to access the home, finally admitted she
lacked any right to use the house, and—upon further
questioning—became evasive and yelled at officers before
hanging up.

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Based on this evidence, taken in the light most favorable
to the officers, a reasonable person could disbelieve Plaintiffs’
claim of innocent entry based on a credible invitation. See
Parsons v. U.S., 15 A.3d 276, 280 (D.C. 2011) (“[T]he
informant’s general credibility and the reliability of the
information he or she provides are important factors in a
probable cause assessment”); see also United States v. Project
on Gov’t Oversight, 454 F.3d 306, 313 (D.C. Cir. 2006)
(“Evaluation of the credibility of witnesses must be left to the
factfinder, and the need to assess the credibility of witnesses
is precisely what places this dispute outside the proper realm
of summary judgment.”). A rational juror could find the
officers reasonably believed Plaintiffs either knew, or should
have known, Peaches’ invitation was unauthorized and that
use of the house was not otherwise permissible.
At its fringes probable cause is a nebulous construct. See
Jefferson v. United States, 906 A.2d 885, 887 (D.C. 2006).
(“The probable-cause standard is incapable of precise
definition . . . because it deals with probabilities and depends
on the totality of the circumstances.”). In factually complex
circumstances, like the present one, the probable cause
inquiry requires weighing the credibility of statements from
multiple parties and witnesses, and consideration of the
reasonable inferences officers may draw from idiosyncratic
facts. Resolution of such a credibility laden and fact specific
inquiry is properly reserved for the jury. The Court errs in
concluding such a case is appropriate for preliminary
resolution at summary judgment. See George v. Leavitt, 407
F.3d 405, 413 (D.C. Cir. 2005) (“[A]t the summary judgment
stage, a judge may not make credibility determinations, weigh
the evidence, or draw inferences from the facts-these are jury
functions, not those of a judge ruling on a motion for
summary judgment. . . . Although a jury may ultimately
decide to credit the version of the events described by [a

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defendant] over that offered by [a plaintiff], this is not a basis
upon which a court may rest in granting a motion for
summary judgment.”).
More troubling still, by subverting the appropriate
standard for probable cause, the Court effectively excises
unlawful entry from the District’s criminal code for cases
where intruders claim they were invited and have not
obviously and forcibly obtained entrance to a currently
unoccupied private dwelling.
Such a conclusion is not
compelled by either our case law or common sense; officers
are simply not required to credit the exonerating statements of
suspected wrongdoers where the totality of the circumstances
suggests such claims should be treated with skepticism.
II
Even assuming Plaintiffs’ arrests were not supported by
adequate probable cause for unlawful entry, qualified
immunity shields the officers from individual liability for
Plaintiffs’ section 1983 claims because the officers’ “conduct
[did] not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis
added); see also DeGraff v. D.C., 120 F.3d 298, 302 (D.C.
Cir. 1997) (“[T]he scope of qualified immunity must be
evaluated using the [] ‘objective reasonableness’ criteria.”).
For purposes of qualified immunity, “‘[c]learly
established’ . . . means that “[t]he contours of the right must
be sufficiently clear that a reasonable [officer] would
understand that what he is doing violates that right.” Wilson
v. Layne, 526 U.S. 603, 614-15 (1999). While, “[t]his is not
to say that an official action is protected by qualified
immunity unless the very action in question has been

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previously held unlawful,” id., courts should nonetheless
“examine the asserted right at a relatively high level of
specificity, and on a fact-specific, case-by-case basis,”
O’Malley v. City of Flint, 652 F.3d 662, 668 (6th Cir. 2011).
And in reviewing the pre-existing law, the officers’
“unlawfulness must be apparent” to support a finding that
qualified immunity does not apply. Wilson, 526 U.S. at 615;
Wardlaw v. Pickett, 1 F.3d 1297, 1301 (D.C. Cir. 1993)
(suggesting the “unlawfulness of the defendants [must be] so
apparent that no reasonable officer could have believed in the
lawfulness of his actions”).
Here the pre-existing law of unlawful entry is not so clear
that a reasonable officer would have known he lacked
probable cause to arrest Plaintiffs. The officers were faced
with an unusual factual scenario, not well represented in the
controlling case law. The property where Plaintiffs were
found was somewhere between an occupied private dwelling
and a vacant or abandoned building. The situation the
officers encountered rests uneasily between two distinct
strands of District law. Compare McGloin, 232 A.2d at 91
(“[N]o one would contend that one may lawfully enter a
private dwelling house simply because there is no sign or
warning forbidding entry.”) with Culp, 486 A.2d at 1177
(noting boarded windows gives sufficient warning an
abandoned building should not be entered). 2
Neither line of cases unambiguously controls. The law of
unlawful entry for abandoned properties has traditionally
dealt with obviously decrepit buildings, e.g., Culp, 486 A.2d
2

The Court finds it “important[]”there was no evidence the home’s
true owner told Plaintiffs they were not welcome. Maj. Op. at 11.
It is unclear from the case law, however, such a warning is required
for a temporarily unoccupied but not obviously abandoned
residence. See McGloin, 232 A.2d at 90–91.

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at 1175 (noting the house was missing a rear door, its
windows were shattered, and the interior was in “shambles”),
while unlawful entry of private dwellings has generally dealt
with traditionally occupied residences, apartments, or semipublic buildings. See, e.g., McGloin, 232 A.2d at 91;
Bowman v. United States, 212 A.2d 610, 611-12 (D.C. 1963).
Neither line of cases encompasses a scenario where
individuals claim to be the social guests of a tenant of a
(vacant) property to which the tenant has no actual possessory
interest—much less a scenario where the putative tenant is
herself not present on the scene and refuses to otherwise
cooperate with officers’ ongoing investigation. Moreover, to
the extent the pre-existing law is broadly comparable, a
reasonable person could find it supports an officer’s finding
of probable cause where a trespassers claim of invitation is
deemed insufficiently credible. See, e.g., McGloin, 232 A.2d
at 90–91 (upholding the conviction of person found in
nonpublic areas of a private apartment building, despite his
excuse he was looking for a cat or a friend who lived in the
building); Kozlovska v. United States, 30 A.3d 799, 800–801
(D.C. 2011) (upholding the conviction of a woman who
claimed an employee permitted her to use the building).
Thus, in the absence of pre-existing case law clearly
establishing the contours of Plaintiffs’ rights, the officers
were shielded by qualified immunity when, acting under color
of state law, they reasonably arrested plaintiffs for unlawful
entry. The case law of course requires officers to have some
evidence the alleged trespassers committed the offense of
unlawful entry. See Maj. Op. at 21–22. Yet nothing in the
District’s law requires officers to credit the statement of the
intruders regarding their own purportedly innocent mental
state where the surrounding facts and circumstances cast
doubt on the veracity of such claims. The officers were
therefore entitled to the protection of qualified immunity and

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the “breathing room” it gives them to make reasonable—
albeit potentially mistaken—judgments under novel
circumstances unexplored by the law when they took the
challenged action. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085
(2011).

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