Wesby v. Dist. of Columbia, 12–7127.

• Citation: 816 F.3d 96 (Mem)
• Decision Date: 08 February 2016
• Docket Number: No. 12–7127.,12–7127.
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

816 F.3d 96 (Mem)

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.

No. 12–7127.

United States Court of Appeals, District of Columbia Circuit.

Feb. 8, 2016.

Gregory L. Lattimer, Law Offices of Gregory L. Lattimer, PLLC, Washington, DC, for Appellees.

Loren L. Alikhan, Todd Sunhwae Kim, Irvin B. Nathan, Carl James Schifferle, Office of the Attorney General, District of Columbia Office of the Solicitor General, Washington, DC, for Appellants.

Before: GARLAND, Chief Judge; HENDERSON,^** ROGERS, TATEL, BROWN,^** GRIFFITH,^** KAVANAUGH,^** SRINIVASAN, MILLETT, PILLARD,^** AND WILKINS,^* Circuit Judges.

ORDER

PER CURIAM.

Appellants' petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

PILLARD, Circuit Judge, and EDWARDS, Senior Circuit Judge, concurring in the denial of rehearing en banc:

The panel opinion has none of the ambition that Judge Kavanaugh, dissenting from denial of rehearing en banc, attributes to it. It does not alter the law of probable cause or the law of qualified immunity. The panel agrees with virtually everything the dissent says about the law. Our disagreement is about the facts.

I.

The dissent accuses us of establishing new rules of law. We have done no such thing. In fact, we view the law the same way the dissent does.

1. The dissent asserts that we created a new rule "that officers are required to believe the statements of suspected trespassers who claim that they have permission to be on the property." Dissent 110. It contends that our opinion obliges officers to accept suspects' implausible protestations of innocence and ignore other, circumstantial evidence of culpability. Id. at 106–07. That is not the law, nor did we so hold.

Rather, we agree with the dissent that, if the facts of which officers are aware and the reasonable inferences that arise from those facts cast doubt on a suspect's story, officers need not credit the suspect. See id. at 107–08, 110–11. Indeed, our opinion specifically acknowledges that officers are "entitled to discredit" a suspect's claims of an "innocent explanation for entry into a house in the face of conflicting evidence," Wesby v. District of Columbia, 765 F.3d 13, 21 n. 4 (D.C.Cir.2014)(citing Wright v. City of Philadelphia, 409 F.3d 595, 603 (3d Cir.2005)); if other facts give rise to probable cause, the officer may arrest, "notwithstanding exculpatory statements from the suspect," id. (quoting Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir.2002)).

We also acknowledged that circumstantial evidence may "make it reasonable to infer" that a suspect has a culpable state of mind. Id. at 22. To reach that conclusion, officers do not need trial-worthy evidence. We expressly noted that "[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.' " See id. at 20(quoting Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). The dissent agrees. See Dissent 105 ("To have probable cause to arrest, a police officer does not need proof beyond a reasonable doubt, or even by a preponderance of the evidence, that an individual committed a crime.").

Taking these points together, so long as there is evidence giving rise to probable cause—even if that evidence is only circumstantial and short of preponderant—officers may lawfully arrest, no matter what a suspect claims in his or her own defense. There is nothing novel about our view. The dissent's sampling of cases from across the circuits confirms that it is widely held. See id. at 107–08.

2. The dissent worries that our opinion erodes the protection qualified immunity provides officers who must make "on-the-spot credibility judgments" and quickly "resolve difficult mens rea questions." Id. at 102, 107. Our first point of agreement should put the dissent at ease—officers are not required to take suspects at their word when they deny their guilt. A second point also ought to assuage the dissent: If officers mistakenly conclude that there is probable cause, they are nonetheless entitled qualified immunity if their mistake was reasonable. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)(per curiam). Our opinion does not ignore or weaken that important protection, which gives officers the necessary "breathing room" to perform their difficult, dangerous jobs and safeguard the public. Ashcroft v. al–Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011). It simply finds that a reasonable officer could not conclude, based on the information before these particular officers, that there was probable cause.

It is also worth noting that this case is quite unusual, in that the officers did not make any heat-of-the-moment judgment calls about the partygoers' mens rea or whether they were telling the truth about having been invited. First, nothing about the investigation was rushed and nothing about the situation posed any imminent risk. The officers spent two hours on the scene calmly assessing the situation, J.A. 381, and more time back at the station deliberating over which charge to bring. (The officers originally processed the partygoers for unlawful entry, then dropped that charge and, after discussing the case with representatives of the Attorney General's office, processed them for disorderly conduct, then dropped that charge as well.

J.A. 45–50.) Second, these defendants did not in fact make any determinations about the partygoers' mindset, because they did not think either one mattered. See infra 100–01 & n.1.

II.

We and the dissent agree on two other clearly established points of law.

1. The dissent does not dispute our rather unexceptional statement that arresting officers need "at least some evidence that the arrestee's conduct meets each of the necessary elements of the offense that the officers believe supports arrest." Wesby, 765 F.3d at 26. When officers lack probable cause to believe that a necessary element of an offense is present, they lack probable cause to arrest. See id.; United States v. Christian, 187 F.3d 663, 667 (D.C.Cir.1999); accord Wright, 409 F.3d at 602("Whether any particular set of facts suggest that an arrest is justified by probable cause requires an examination of the elements of the crime at issue."). The same is true when the only circumstances officers observe amount to conduct that is privileged by a defense.

Setting aside for the moment its particular application here, the dissent seems to agree with that proposition as a legal matter. See Dissent 106–07, 109. The dissent quotes with approval a recent Second Circuit statement of the law that officers must accept a suspect's defense if " 'the facts establishing that defense were so clearly apparent to the officers on the scene as a matter of fact, that any reasonable officer would have appreciated that there was no legal basis for arresting plaintiffs.' " Id. at 109 (quoting Garcia v. Does, 779 F.3d 84, 93 (2nd Cir.2015)(amended opinion)). Our decision fully comports with Garcia. Our own prior decisions and those of other courts are in accord. See Hutchins v. District of Columbia, 188 F.3d 531, 535 (D.C.Cir.1999)(en banc) (noting that a police officer may detain a minor for violating a curfew law if the "police officer reasonably believes that an offense has occurred under the curfew law and that no defense exists"); Tillman v. Wash. Metro. Area Transit Auth., 695 A.2d 94, 96 (D.C.1997)(acknowledging the "unusual" possibility of circumstances that, "while undoubtedly proving an unlawful act, nonetheless demonstrated so clearly that the suspect lacked the required intent that the police would not even have probable cause for an arrest"); Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.1999)(observing that the "law has been clearly established since at least the Supreme Court's decision in Carroll v. United States, [267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)], that probable cause determinations involve an examination of all facts and circumstances within an officer's knowledge at the time of an arrest," which includes an arrestee's "uncontroverted" defense).

2. In addition to agreeing that officers need "some showing" of each element, Wesby, 765 F.3d at 22, we and the dissent agree that the key element in this case was whether the partygoers entered a place they knew or should have known was off limits. The dissent does not dispute, nor could it, that it is no crime for a person to enter premises without authorization if that person has a bona fide belief that she is permitted to enter. It frames the issue well:

It is undisputed that the partiers were on private property without permission from an owner or renter, and without other lawful authority. Therefore, this is a case where the actus reus of the crime was complete. The sole issue from the perspective of a reasonable police officer was whether the partiers had the necessary mens rea to commit the crime of trespassing. If the partiers believed that they had permission from a lawful owner or renter to use the house, then the partiers did not commit the offense of trespassing under D.C. law.

Dissent 106.

At the time of the challenged arrests, the law in the District of Columbia had, indeed, long been clear that in unlawful entry cases the suspect's state of mind matters. See, e.g., Artisst v. United States, 554 A.2d 327, 330 (D.C.1989)(affirming because the evidence showed "appellant's intention to be on the premises contrary to [the owner's] will"); Culp v. United States, 486 A.2d 1174, 1177 (D.C.1985)(affirming because "officers could reasonably conclude that appellant...