Memorandum Continued

2. Fourth Amendment Claims

The precise nature of plaintiff's Fourth Amendment claim is unclear; nowhere in the complaint does plaintiff set forth the basis for this constitutional claim. Insofar as plaintiff may be raising a constitutional claim based on false arrest, false imprisonment or excessive force, as set forth below, he has failed to allege facts sufficient to sustain any of these claims.

a. False arrest/false imprisonment

The elements of a constitutional claim for false arrest are substantially identical to the elements of a common-law false arrest claim. See Scott v. District of Columbia, 101 F.3d 748, 753 (D.C. Cir. 1996), cert denied, 117 S.Ct. 1824 (1997), citing, Dellums v. Powell, 566 F.2d 167, 175 (D.C. Cir. 1977) (''[T]he details of constitutional tort actions should be shaped by reference to parallel common law''), cert denied, 438 U.S. 916 (1978) , citing, Pierson v. Ray, 386 U.S. 547, 556-57 (1967) . And in the District of Columbia, the torts of false arrest and false imprisonment are indistinguishable. See Shaw v. May Dept. Stores, Co., 268 A.2d 607 (D.C. App. 1970) . [7] In essence, the

[7 Defendants note that to the extent plaintiff seeks to raise claims relating to the events that occurred while at the Central Lockup at the District of Columbia Superior Court (see complaint, ¶¶ 11-12), neither the Secret Service nor the United States would be proper defendants in Such an action. If plaintiff is seeking to raise that claim here, defendants reserve the right to move to dismiss that claim on the grounds that they are not the proper party defendants.]


issue in a false arrest case is ''whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails." See Scott, 101 F.3d at 754, citing, Dellums, 566 F.2d at 175. Importantly, even if the officer mistakenly believed that he had probable cause to arrest, he is, nevertheless, still immune from suit if his actions were reasonable under the circumstances. See Anderson, 483 U.S. at 641.

Under the law of the District of Columbia (which is applicable here), the unlawfulness of a detention is presumed once ''an allegation [is made] that a plaintiff was arrested and imprisoned without process." See Dellums, 566 F.2d at 175, citing, Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C. App. 1973). ''The burden then shifts to the defendant to justify the arrest." Id. The defendant can satisfy this burden by demonstrating that: "(1) he or she believed, in good faith, that his or her conduct was lawful, and (2) this belief was reasonable." See Scott, 101 F.3d at 754-55, citing, District of Columbia v. Murphy, 631 A.2d 34, 36 (D.C.)(citations and internal quotations marks omitted), on reh'g 635 A.2d 929 (D.C. 1993). In other words, the question turns on whether the officer had a reasonable good faith belief that the suspect has committed or is


committing a crime, based on the facts and circumstances known to him." See Gueory v. District of Columbia, 408 A.2d 967, 969 (D.C. 1979)(citations omitted). Facts sufficient to convict are not necessary. Id. Defendant Stanton can easily demonstrate that he acted in good faith, that his actions were reasonable and that he had probable cause to arrest the plaintiff for disorderly conduct and\or assaulting an officer.

1. Disorderly Conduct

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), citing, Rodgers v. United States, 290 A.2d 395, 396, n.2 (D.C. 1972) and Scott v. District of Columbia, 184 A.2d 849, 851 (D.C. 1962). ''It is sufficient that the alleged conduct be under circumstances Such that a breach of peace may be occasioned thereby.''' See Heggestad v. District of Columbia, 48 F.3d 562, 1995 WL 35311 (D.C. Cir. 1995), citing, Rodgers, 290 A.2d at 396; See also Rockwell v. District of Columbia, 172 A.2d 549, 552 (D.C. 1961). In other words, ''[s]o 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.'' See Chemalali, 655 A.2d at 1230.

Here, 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 particularly given


plaintiff's deliberate refusal to heed Officer Stanton's warnings. Plaintiff, at nearly 10:00 p.m. was yelling, indeed screaming, in such a loud voice that passersby on both sides of Pennsylvania Avenue could hear him. See Complaint, ¶ 6. In response, Officer Stanton calmly attempted to address the situation; he simply ordered the plaintiff to ''be quiet." Id. In addition, he and two other officers even spoke personally with the plaintiff in order to control him. Yet, despite Officer Stanton and the other officers' initial warnings, plaintiff continued his yelling and even encouraged passersby to engage in a shouting match across Pennsylvania Avenue. Id., ¶ 7. And during the altercation between the plaintiff and Officer Stanton, Officer Stanton ordered the plaintiff to ''stop resisting.'' Id. Although the plaintiff claims that he was not resisting; based on his remarks to the plaintiff, Officer Stanton certainly believed otherwise.

Based on the totality of the plaintiff's actions, Officer Stanton certainly had probable cause to arrest him for disorderly conduct. Plaintiff flagrantly disobeyed Officer's Stanton 's orders; he not only continued to Scream after being ordered not to do So, but he also incited Several onlookers to participate in the Shouting, thereby escalating the already raucous situation. Plaintiff's openly belligerent attitude, outright defiance of Officer Stanton's orders and efforts to resist Officer Stanton's attempts to neutralize the situation, certainly could have led a reasonable officer to believe that plaintiff was breaching the


peace or that his behavior could lead to a breach of the peace. "The police need not await an outbreak of violence before attempting to control the situation by making a disorderly conduct arrest." See Chemalali, 655 A.2d at 1230, citing, Gueory v. District of Columbia, 408 A.2d 967, 970 (D.C. 1979). Courts have not hesitated to find that an officer had probable cause to arrest when, as here, an individual refuses to obey an officer's orders. See Heggestad, supra at 2 (court found that the officer had probable cause to arrest a man who refused to return to a restaurant when requested to do so by the officer, even though man did not raise his voice and did not threaten the officer); Joyce v. United States of America, 795 F. Supp. 1, 2-4 (D.D.C. 1992)(court found that officer had probable cause to arrest a woman who did not respond to officer's repeated instructions to move her car and thereafter evaded arrest).

In short, Officer Stanton reasonably believed that plaintiff was breaching or about to breach the peace; therefore, he is immune from suit on plaintiff's false arrest and false imprisonment claims.

2. Assaulting an Officer

Title 18 U.S.C. § 111 provides, inter alia:


§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.

Id. [8] In turn, 18 U.S.C. § 1114 specifically includes, inter alia, ''any officer or employee of the Secret Service....'' Id.

The "force" element of Section 111 is satisfied by proof of actual physical contact or by proof of "such a threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm, or death." See United States v. Walker, 835 F.2d 983, 987 (2d Cir. 1987)(forcible assault may be proven without the presence of any physical contact); accord United States v. Schrader, 10 F.3d 1345, 1348 (8th Cir. 1993)(physical contact not necessary; however conviction reversed on other grounds); United States v. Mathis, 579 F.2d 415, 418 (7th Cir. 1978) (force or threat of force sufficient); United States v. Bamberger, 452 F.2d 696, 699 (2d Cir. 1971), cert. denied, 405

[8 The 1994 amendment to Section 111 inserted the language '', 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,". See Notes following Section 111; and See Pub.L. 103-322, § 32010(a)(1).]


U.S. 1043 (1972)(incidental touching or no touching); Burke v. United States, 400 F.2d 866, 867-68 (5th Cir. 1968), cert. denied, 395 U.S. 919 (1969)(assault committed without actual touching, striking, or committing bodily harm to another). Moreover, no proof of intent to injure is necessary to sustain a conviction under Section 111. See United States v. Moore, 997 F.2d 30, 35 n.8 (5th Cir.), cert. denied, 510 U.S. 1029 (1993) United States v. Sanchez, 914 F.2d 1355, 1358 (9th Cir. 1990), cert. denied, 449 U.S. 978 (1991).

As a result, for the purposes of Section 111, it is of no moment whether or not on April 6, 1996, plaintiff inflicted and/or intended to inflict physical injury on Officer Stanton. It is plain that plaintiff's actions constituted assault on Officer Stanton and that his actions interfered with and impeded him. Indeed, Officer Stanton ordered the plaintiff to quit resisting, believing that he was fighting with him. [9]

In short, there is no question that Officer Stanton had probable cause to arrest the plaintiff; therefore, his Fourth Amendment false arrest claim Should be dismissed.

[9 Defendant further notes that for the purposes of Section 111 liability, the element of "engaged in ... performance of official duties," is to be broadly construed. To resolve this issue, the trier of fact should examine whether or not the federal officer is "acting within the scope of what the agent is employed to do. The test is whether the agent is acting within that compass or is engaged in a personal frolic of his own.'' United States v. Heliczer, 373 F.2d 241, 245 (2d Cir.), cert. denied, 388 U.S. 917 (1967). There is no doubt that Officer Stanton was acting in the Scope of his employment; plaintiff concedes this fact. See Complaint, ~q 13-16.]


b. Excessive Force

The test for what constitutes excessive force with respect to a Fourth Amendment claim was set forth by the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985). Although that case concerned the use of deadly force in apprehending an unarmed suspected felon, Garner's reasonableness formulation has been extended to all claims of excessive force with respect to the Fourth Amendment. See Martin v. Malhoyt, 830 F.2d at 261. ''Reasonableness is to be determined by balancing the infringement of the individual's interest caused by the police action against the government interest served by that action." Id. See also, e.g., Garner, 471 U.S. at 8. More Specifically, the D.C. Circuit has stated:


Martin, 830 F.2d at 261; Richardson v. United States Department of the Interior, 740 F. Supp. l5, 25 (D.D.C. 1990).

Thus, the proper question is whether ''the excessiveness of the force is so apparent that no reasonable officer could have believed in the lawfulness of his actions." See Wardlaw v. Pickett, 1 F.3d 1297, 1303 (D.C. Cir. 1993), cert. denied, 512 U.S. 1204 (1994); accord Scott v. District of Columbia, 101 F.3d at 759. In addition, the objective reasonableness of the force used " be judged from the perspective of a reasonable officer


on the scene rather than with the 20/20 vision of hindsight." See Wardlaw, 1 F.2d at 1303, citing, Graham, 490 U.S. at 396. "Accordingly, [n]pt every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, . . . violates the Fourth Amendment."' Id. (internal citation omitted).

Plaintiff claims that Officer Stanton pushed, tugged and pulled him, that he threw him to the ground twice and that, at one point, he fell on the plaintiff's back. See Complaint, ¶ 7. In considering these actions, it is important to note that Officer Stanton believed that the plaintiff was resisting him; he told the plaintiff to stop resisting. Id. ¶ 7. And notably, plaintiff's attempt to resist arrest is completely consistent with his earlier belligerent behavior. ''Where an offender offers physical resistance to arrest, a law enforcement 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. 1990)(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.

The recent D.C. Circuit decision in Scott is also instructive here. In Scott, an off duty Metropolitan Police Officer Gerry Scott, who had been drinking, drove a car in the


early morning hours into several parked cars. Id. at 751. Following the arrival of several supervisors on the scene, certain MPD officers were directed to transport Officer Scott to MPD's Traffic Division. Id. at 752. Officer Scott was not handcuffed, and was permitted to placed in a regular police cruiser for the trip to the Traffic Division. Id. En route, Officer Scott exited the cruiser at the corner of Ninth and T Streets, while Sergeant Hernandez who was in the cruiser attempted to keep him from escaping. Id. With the arrival of Several other officers, Officer Scott then offered to reenter the police cruiser; but his request was refused. Id. According to Officer Scott, at this point Sgt. Hernandez began cursing at Officer Scott. Id. at 759. At about this same time:


Id. at 759. Considering on appeal the evidence in the light most favorable to Officer Scott (because the jury had found in his favor), the D.C. Circuit found the events described fatally lacking as a matter of law [See id., pages 759-60 (''Nothing in the record indicates that they used more force than reasonably appeared necessary....'' id. at 760)], vacated the judgment in


favor of Officer Scott and remanded the cause to the District Court with instructions to enter judgment in favor of the District of Columbia. [Id. at 760]

Plainly, Officer Stanton did not use excessive force in violation of the Fourth Amendment in responding to the situation here. A reasonable officer would have believed the force used was necessary to subdue the plaintiff. Cf. Martin, 830 F.2d at 262 (slamming car door on legs of arrestee held not to be objectively unreasonable); Richardson v. Department of Interior, 740 F. Supp. 15, 25 (D.D.C. 1990)(slamming plaintiff into golf cart and pushing him to the ground was not objectively unreasonable); Stevens, 727 F. Supp. at 670 (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; Roy v. Inhabitants of City of Lewiston, 42 F.3d 691 (1st Cir. 1994)(shooting at a drunk man held not to be excessive force).

At bottom, plaintiffs' attempt to establish a claim of improper conduct is unavailing. Officer Stanton's actions were plainly reasonable under the circumstances. Accordingly, plaintiff's Fourth Amendment excessive force claim should be dismissed.


IV. Conclusion

Wherefore, based on the foregoing, plaintiff's claims against defendant Stanton should be dismissed.

Respectfully Submitted,

Mary Lou Leary (by S.M.L.)
MARX/IOU LEARY, D B # 337485
United States Attorney

John D. Bates (by S.M.L.)
JOHN D. BATES, DC Bar # 934927
Assistant United States Attorney

(signed) Stacy M. Ludwig
STACY M. LUDWIG, DC Bar # 4 5719
Assistant United States Attorney

Of Counsel
Kathy DiPippa, Esq.
United States Secret Service


I hereby certify that the foregoing copy of the partial motion to dismiss and Supporting papers via first class mail, this 28th day of July 1997, addressed to:

Daniel M. Schember, Esq.
Alisa Wilkins, Esq.
Gaffney & Schember
1666 Connecticut Avenue, N.W., Suite 225
Washington D.C. 20009/7

(signed) Stacy M. Ludwig
Assistant United States Attorney
Judiciary Center Building
555 Fourth St., N.W.
Washington, D. C. 2O001
(202) 514-7147


WILLIAM THOMAS,                        

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



UPON CONSIDERATION of the defendant's partial motion to dismiss, any opposition thereto, the record herein, and for good cause shown, it is this day of 1997,

ORDERED, that the defendant's partial motion to dismiss should be and is hereby granted, and it is further

ORDERED, that all claims against defendant Stanton in his individual capacity are dismissed with prejudice.


Stacy M. Ludwig
Assistant United States Attorney
Judiciary Center Building
555 4th Street, N.W., Room 10-806
Washington, D.C. 20001

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