United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2005 Decided January 13, 2006
No. 04-5388
JEFFREY BARHAM, ET AL.,
APPELLEES
v.
CHARLES H. RAMSEY, IN HIS INDIVIDUAL CAPACITY AND IN
HIS OFFICIAL CAPACITY AS CHIEF OF POLICE, MPD,
APPELLANT
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Consolidated with
04-5389
Appeals from the United States District Court
for the District of Columbia
(No. 02cv02283)
Robert E. Deso, Jr. argued the cause and filed the briefs for
appellant Peter Newsham.
Mark H. Tuohey, III argued the cause for appellant Charles
H. Ramsey. With him on the briefs were Robert J. Spagnoletti,
2
Attorney General, Office of Attorney General for the District of
Columbia, Edward E. Schwab, Deputy Attorney General, Mary
L. Wilson, Assistant Attorney General, John M. Faust and Justin
M. Shellaway.
Mara Verheyden-Hilliard argued the cause for appellees.
With her on the brief was Carl Messineo.
Before: HENDERSON and RANDOLPH, Circuit Judges, and
EDWARDS,* Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Plaintiffs-appellees
(“plaintiffs”) represent a class of individuals arrested by the
District of Columbia’s Metropolitan Police Department
(“MPD”) during the morning of a large-scale “anti-
globalization” protest on September 27, 2002. Demonstrators
staged protests throughout the city that morning, and a number
of police actions ensued. Plaintiffs in this case were detained
when police officers, following the order of Assistant Chief
Peter Newsham, cordoned off the perimeter of Pershing Park in
northwest Washington, D.C. and arrested everyone there.
Newsham purported to have witnessed widespread infractions
that morning by “demonstrators,” including traffic violations
and scattered acts of vandalism. After observing activities in
Pershing Park for about an hour – during which pedestrian
traffic flowed freely in and out of the park – Newsham issued
the arrest order. Before the arrests occurred, Newsham spoke
with MPD Chief Charles Ramsey, who arrived on the scene in
the course of monitoring events throughout the city. Ramsey
did not question Newsham’s decision. Newsham and Ramsey
*
Senior Circuit Judge Edwards was in regular active service at
the time of oral argument.
3
concede that the mass arrest was executed with no prior warning
to the occupants of the park to disperse and no warning to them
that arrest was imminent. In the end, 386 people were arrested.
Plaintiffs sued Ramsey and Newsham (“appellants”) and
several other city and federal officials. Plaintiffs claimed, inter
alia, that the arrests violated their Fourth Amendment rights to
be free from arrest without probable cause. Appellants moved
for summary judgment, arguing that their status as police
officers conferred qualified immunity from liability and
precluded plaintiffs from moving forward with litigation against
them. The District Court denied their motion, holding that
MPD’s arrest of hundreds of individuals assembled in the
exercise of First Amendment rights, without first issuing an
order to disperse followed by a reasonable opportunity to
comply, violated plaintiffs’ clearly established constitutional
rights, thus stripping appellants of any qualified immunity.
Barham v. Ramsey, 338 F. Supp. 2d 48, 56-63 (D.D.C. 2004).
Appellants now seek an interlocutory appeal of that decision.
With respect to Newsham, we affirm the trial court’s ruling
that his alleged actions violated the plaintiffs’ clearly established
constitutional rights. Undisputed evidence reveals that
Newsham arrested an undifferentiated mass of people on the
basis of crimes committed by a handful of individuals who were
never identified. Because nothing in the record suggests that
Newsham had particularized probable cause to arrest each of the
386 persons caught in the police sweep, see Ybarra v. Illinois,
444 U.S. 85 (1979), his claim to qualified immunity raises no
genuine issue as to any material fact, see FED. R. CIV. P. 56(c).
Newsham has no entitlement to qualified immunity.
Ramsey’s situation is somewhat different. The Chief
admitted having “tacitly approved” Newsham’s arrest order.
His entitlement to qualified immunity thus turns on whether he
knew that the park had not been cleared of individuals who were
not observed breaking the law. Based on the record assembled
4
for summary judgment, it is not possible for us to answer that
question. Because Ramsey’s claim for immunity turns on the
resolution of factual disputes regarding his participation in the
events of September 27, 2002, his appeal is premature. See
Johnson v. Jones, 515 U.S. 304 (1995).
I. BACKGROUND
A. The Events at Pershing Park
The events relevant to this appeal took place on September
27, 2002, the start of a weekend of demonstrations in
Washington, D.C. protesting the annual meetings of the World
Bank and the International Monetary Fund. Similar protests had
taken place in major cities around the world in the years
preceding the 2002 meetings – most notably, a protest in Seattle
that disrupted a meeting of the World Trade Organization in
1999, which in turn spawned a string of “anti-globalization”
protests. These earlier protests apparently formed a backdrop
against which MPD officials prepared for the September 2002
meetings.
In the weeks leading up to the protests, MPD’s Civil
Disturbance Unit braced for an influx of protestors. Ramsey
commanded the department throughout the pre-protest planning
and allegedly told members of his staff that officers should
overlook minor violations of the law in order to accommodate
demonstrators. Newsham was assigned responsibility for a
particular zone of the city, which included Pershing Park.
Members of the Civil Disturbance Unit apparently were aware
of publicly available information that some demonstrators
intended to “shut down the city” using obstructive tactics
employed in earlier protests. Appellants place special emphasis
on MPD’s concern that demonstrators would form “sleeping
dragons,” i.e., groups of protestors knotted together in city
streets to clog traffic arteries.
5
On the morning of the arrests, Newsham traveled through
his zone of the city, monitoring reports on his radio and
observing the unfolding protest action. According to Newsham,
he learned that protestors “had taken to the streets and were
disregarding verbal and hand instructions from MPD officers to
get up on the sidewalks.” Newsham Statement of Material Facts
¶ 39, Joint Appendix (“J.A.”) 105. He also claims that “some of
the demonstrators in his zone who were unlawfully marching
through the streets were also knocking over trash containers and
newspaper vending machines, and that at least one store window
had been smashed by the demonstrators.” Id. ¶ 40, J.A. 106.
Upon arriving at Pershing Park, Newsham surveilled the
scene for approximately 45 minutes. During this time, he saw
a steady stream of individuals entering the park, and he says he
saw some protestors “taunting police officers,” as well as others
“beating on drums and chanting and dancing in an organized
manner.” Id. ¶¶ 46-47, J.A. 107. It is clear, however, that
Newsham encountered a dynamic and diverse situation. The
“demonstrators” Newsham described never operated as a
cohesive unit that entered or left the park intact. Newsham
never asserted that the park was empty before “demonstrators”
began entering it, nor that everyone who was not a protestor left
the park as demonstrators entered. Rather, Newsham stated that
“demonstrators” streamed into the park continuously, from
“every direction” and over an extended period of time. Id. ¶ 45,
J.A. 107. Ultimately, everything in the record indicates that a
diverse flow of human traffic entered and exited the park as long
as its perimeter remained unsealed. And there is nothing in the
record to indicate that officers attempted to distinguish between
persons who were lawfully in the park and had engaged in no
lawless activity before entering and persons who were engaging
in unlawful activity in the park or had done so before entering
the scene.
6
Having surveyed these activities, Newsham decided that the
protestors “had no intention of concluding their demonstration
and dispersing,” and that they may have been inclined to
transport their demonstration out of the park and into the street.
Id. ¶ 48, J.A. 107. At some point during his observation of the
park, Newsham conferred with U.S. Park Police Major Richard
Murphy. Murphy informed Newsham that, although there were
no permits issued for assemblies in the park that day, his officers
would not initiate arrests. Murphy explained that if he issued an
order to arrest without first issuing three successive warnings, he
would violate his agency’s mass arrest policy. Newsham
nonetheless decided to cordon off the park and place its
occupants under arrest, and he enlisted the help of the U.S. Park
Police to provide backup. By about 10:15 a.m., the park was
sealed.
Newsham did not order any persons to clear the park before
directing his officers to conduct the mass arrest, and he did not
warn the persons in the park that arrest was imminent. He cites
two reasons for failing to warn those subject to the arrest: (1) he
“believed that probable cause already existed to arrest the
demonstrators because of their unlawful actions prior to
converging on Pershing Park, as well as their unlawful
demonstration in Pershing Park,” and (2) he worried that
allowing the park’s occupants to scatter into the streets would
cause further disruption. Id. ¶ 54, J.A. 109 (emphasis added).
Sometime after Newsham decided to cordon off the park,
Chief Ramsey arrived on the scene. Newsham advised the Chief
that he believed there was “probable cause to arrest persons who
had entered the park at the time they arrived in the park, based
upon offenses they had committed before entering Pershing
Park, without ordering them to disperse.” Ramsey Decl. ¶ 18,
Supplemental J.A. 21. Based on this conversation, Ramsey
believed that Newsham in fact had probable cause to initiate the
arrests, and he therefore did not issue a countermanding order.
7
Ramsey also says, however, that he did not realize that the park
contained people who had not been previously observed
engaging in unlawful activity. Id. ¶¶ 21, 23, Supplemental J.A.
21-22.
After the park was cordoned off, 386 people were arrested.
All were charged with Failure to Obey an Officer, a violation of
the traffic regulation that gives police officers authority to direct
motorists and pedestrians in order to ensure traffic safety. D.C.
MUN. REGS. tit. 18, § 2000.2 (1997). According to plaintiffs, the
individuals arrested were “taken into detention and held
overnight in punitive conditions, restrained and contorted in
stress and duress positions . . . with periods of arrest lasting as
many as 30+ hours.” Plaintiffs’ Br. at 4.
B. Proceedings Before the District Court
In November 2002, several individuals who had been
arrested during the September protests filed suit naming federal
and city officials as defendants. The complaint challenged the
Pershing Park arrests, alleging violations of plaintiffs’ rights
under the First, Fourth, and Fourteenth Amendments, as well as
false arrest, imprisonment, and conversion. In essence, plaintiffs
charged that law enforcement officials “trapped” them in
Pershing Park and then, by effecting a mass arrest without
warning, unconstitutionally detained everyone present. Their
suit also alleges constitutional violations connected to the
conditions of their confinement, but those claims are not salient
to this appeal. The District Court certified a class of individuals
who were arrested in Pershing Park. The trial court allowed a
separate group of individual plaintiffs to opt out of the class.
Those plaintiffs subsequently settled their claims and their case
has been dismissed. See Abbate v. Ramsey, 355 F. Supp. 2d 377
(D.D.C. 2005).
On September 24, 2004, the District Court issued a
memorandum opinion addressing claims by three city officials
8
– Ramsey, Newsham, and Mayor Anthony Williams – that they
enjoy qualified immunity from personal liability. To evaluate
those claims, the District Court set out to determine whether the
Pershing Park arrests violated plaintiffs’ constitutional rights
and, if so, whether those rights had been clearly established at
the time. Based on an analysis of this circuit’s case law, the trial
court answered both questions in the affirmative. The District
Court held that police officers who intend to capture a large
group in a mass arrest must first order members of the group to
disperse and then provide a reasonable opportunity to comply.
The court held that failure to conform to these standards
constitutes a violation of a clearly established constitutional
right and deprives an official of qualified immunity.
The District Court next analyzed the actions of each
defendant seeking qualified immunity. First, as to Newsham,
the court found that charging hundreds of individuals with
failure to obey a police order without first ordering them to
disperse “is nothing short of ludicrous.” Barham, 338 F. Supp.
2d at 57-58. Relying principally on Dellums v. Powell, 566
F.2d 167 (D.C. Cir. 1977), the trial court held that arresting
every occupant of Pershing Park without prior notice to disperse,
and without probable cause to believe that each arrestee had
committed a crime, violated clearly established constitutional
law. Newsham was thus found to have no qualified immunity
from personal liability for his actions. For similar reasons, the
trial court denied Ramsey’s plea for qualified immunity.
Starting from the premises set out in its analysis of Newsham’s
status, the court held that “a reasonable police chief”
encountering the events unfolding in Pershing Park “would
recognize the need – and indeed the duty – to ask a subordinate
officer whether a dispersal order had been given prior to
ratifying a mass arrest.” 338 F. Supp. 2d at 61. With respect to
Mayor Williams, however, the trial court found that his actions
were too remote from the constitutional violations to expose him
to personal liability. Id. at 63-65. Ramsey and Newsham now
9
appeal the District Court’s denials of their claims for qualified
immunity.
II. ANALYSIS
A. Appellate Jurisdiction and Standard of Review
We begin by noting our jurisdiction to hear this appeal. 28
U.S.C. § 1291 authorizes appellate courts to hear appeals only
from “final decisions” of the district court. The “denial of a
claim of qualified immunity falls within the ‘small class’ of
collateral orders subject to immediate appeal under that statute
despite the absence of a final judgment.” Moore v. Hartman,
388 F.3d 871, 875 (D.C. Cir. 2004) (citing Mitchell v. Forsyth,
472 U.S. 511, 524-25, 530 (1985)). To take a contrary stance
would eviscerate the doctrine of qualified immunity, since it
would force certain deserving officials to undergo the burdens
of litigation that the doctrine is meant to obviate. Thus, § 1291
confers jurisdiction to review the District Court’s rejection of
Newsham’s motion.
This grant of jurisdiction, however, does not extend to
Ramsey’s claim to qualified immunity. We are authorized to
review a denial of summary judgment invoking official
immunity only insofar as doing so requires us to resolve purely
legal issues. See Johnson, 515 U.S. at 307. As we discuss in
greater detail below, because Ramsey’s claim cannot be
disposed of on purely legal grounds, we lack appellate
jurisdiction to resolve the ongoing controversies it raises.
We review the District Court’s denial of summary judgment
de novo. Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d
1024, 1031 (D.C. Cir. 2004). A party is entitled to summary
judgment only if the record shows that “there is no genuine issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c).
10
B. Assistant Chief Newsham’s Claim to Qualified Immunity
“Qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Int’l Action
Ctr. v. United States, 365 F.3d 20, 24 (D.C. Cir. 2004) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine
recognizes the hardships of subjecting public officials to the
rigors of litigation, but it balances that concern against the
interest in allowing citizens to vindicate their constitutional
rights. Id. To ensure the proper maintenance of that balance,
the Supreme Court has designed a two-part inquiry to determine
whether a government official is protected by qualified
immunity. First, there is a “threshold question: Taken in the
light most favorable to the party asserting the injury, do the facts
alleged show the officer’s conduct violated a constitutional
right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If that
question is answered in the affirmative, “the next, sequential
step is to ask whether the right was clearly established.” Id.
In addressing the second question, courts must frame their
inquiry at the right “level of generality.” Anderson v. Creighton,
483 U.S. 635, 639 (1987). In other words, it is not enough to
say that it is clearly established that police officers may not
subject individuals to unreasonable searches and seizures.
Rather, the “contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right.” Id. at 640. Prior decisional law need not
have supplied a “precise formulation” of the applicable
constitutional standard in order to overcome an official’s
qualified immunity, but the “relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at
202.
11
In this case, it is clear that the “threshold question” for
evaluating Newsham’s claim to qualified immunity must be
answered in the affirmative, because “the facts alleged show the
officer’s conduct violated a constitutional right,” id. at 201. The
essence of plaintiffs’ claim is that a diverse assemblage of
people – including many who were engaging in political speech
protected by the First Amendment and others who were merely
there as observers or passersby – was caught in a mass arrest
that was devoid of probable cause. See First Am. Comp.,
Barham v. Ramsey, 338 F. Supp. 2d 48 (D.D.C. 2004) (No. CA
02-2283). Probable cause to make an arrest requires a showing
that the police had “enough information to ‘warrant a man of
reasonable caution in the belief’ that a crime has been
committed and that the person arrested has committed it.”
United States v. Short, 570 F.2d 1051, 1053 (D.C. Cir. 1978)
(quoting Bailey v. United States, 389 F.2d 305, 309 (D.C. Cir.
1967) (internal quotations omitted)). Plaintiffs allege that the
crowd exhibited no behavior that could allow a reasonable
officer to believe everyone present had committed a crime.
They also contend that the assemblage was targeted for political
suppression. These allegations, if true, constitute a violation of
the Fourth Amendment.
We have no trouble in concluding that plaintiffs’ Fourth
Amendment rights were clearly established in the circumstances
of the mass arrest. No reasonable officer in Newsham’s position
could have believed that probable cause existed to order the
sudden arrest of every individual in Pershing Park. Even
assuming that Newsham had probable cause to believe that some
people present that morning had committed arrestable offenses,
he nonetheless lacked probable cause for detaining everyone
who happened to be in the park.
It is firmly established that, to comport with the Fourth
Amendment, a warrantless search or seizure must be predicated
on particularized probable cause. “Where the standard is
12
probable cause, a search or seizure of a person must be
supported by probable cause particularized with respect to that
person. This requirement cannot be undercut or avoided by
simply pointing to the fact that coincidentally there exists
probable cause to search or seize another . . . .” Ybarra, 444
U.S. at 91. While the Supreme Court has emphasized that “the
probable-cause standard is a practical, non-technical
conception,” it has made clear that the “substance of all the
definitions of probable cause is a reasonable ground for belief of
guilt, and that the belief of guilt must be particularized with
respect to the person to be searched or seized.” Maryland v.
Pringle, 540 U.S. 366, 370-71 (2003) (internal quotations and
citations omitted). Most significantly, Fourth Amendment case
law makes clear that an officer cannot predicate a search or
seizure on an individual’s “mere propinquity to others
independently suspected of criminal activity.” Ybarra, 444 U.S.
at 91.
The mass arrest at Pershing Park violated the clearly
established Fourth Amendment rights of plaintiffs by detaining
them without particularized probable cause. Everyone arrested
in the park was charged with Failure to Obey an Officer. See
Final Report Relative to Complaints of Alleged Misconduct
Made at the October 24, 2002, Hearing of the Committee on the
Judiciary of the Council of the District of Columbia Concerning
the IMF/World Bank Protests at 8, J.A. 610. The ordinance
underlying that offense, a traffic violation, states:
No person shall fail or refuse to comply with any lawful
order or direction of any police officer, police cadet, or
civilian crossing guard invested by law with authority to
direct, control, or regulate traffic. This section shall apply
to pedestrians and to the operators of vehicles.
D.C. MUN. REG. tit. 18, § 2000.2. We share the District Court’s
conclusion that appellants cannot conceivably impute to
Newsham probable cause to believe each person in Pershing
13
Park at the moment of arrest had violated this ordinance. See
Barham, 338 F. Supp. 2d at 57-58 (“the ‘failure to obey’ charge
is nothing short of ludicrous”). This conclusion requires no
elaboration.
Throughout this litigation, however, appellants have tried
to excavate probable cause not from the official reason for
arrest, but from the scattered acts of lawlessness that Newsham
and others had witnessed that morning. While Newsham is
correct that an arrest may pass Fourth Amendment muster even
if the only objectively discernible probable cause related to
conduct far removed from the offense charged by the arresting
officer, see Devenpeck v. Alford, 125 S. Ct. 588, 594 (2004), he
has failed to show any objective basis for arresting the entire
mass of people who happened to inhabit the park. Quite simply,
Newsham had no basis for suspecting that all of the occupants
of Pershing Park were then breaking the law or that they had
broken the law before entering the park. Vague allegations that
“demonstrators” committed offenses will not compensate for
this shortcoming.
Appellants have attempted to justify the sweep by focusing
on allegedly illegal activities observed near the scene of the
arrest before “demonstrators” converged on Pershing Park.
Indeed, Newsham evidently justified his decision to Ramsey by
citing the unlawfulness that he claims to have witnessed earlier
that morning in the surrounding areas. Traffic offenses and
scattered acts of vandalism by unidentified individuals in the
streets, however, could not have incriminated all of the
individuals who happened to occupy the park when Newsham
ordered the arrest. Even to the extent that Newsham asserts that
some “demonstrators” were unlawfully assembled in the park,
he has made no effort to ascribe misdeeds to the specific
individuals arrested. Nowhere have appellants suggested that
the particular individuals observed committing violations were
the same people arrested; instead, they refer generically to what
14
“demonstrators” were seen doing. This is the upshot of making
arrests based on the plaintiffs’ occupancy of a randomly selected
zone, rather than participation in unlawful behavior. While we
have no reason to doubt that unlawful activity might have
occurred in the course of the protest – with some individuals
engaging in disorderly conduct, for example – the simple,
dispositive fact here is that appellants have proffered no facts
capable of supporting the proposition that Newsham had
reasonable, particularized grounds to believe every one of the
386 people arrested was observed committing a crime.
The fluidity of movement in and around the park preceding
the arrests further discredits any attempt to discern probable
cause to arrest every person who happened to be there.
Newsham concedes that pedestrian traffic flowed freely into the
park in the hour before the arrests, and he never presents any
reason to doubt that it moved just as freely out of the park. The
record sheds no light on how many individuals in the park had
previously violated the law. Nor does it reveal probable cause
to arrest everyone in the park for participating in an “unlawful
assembly.” There is no indication of how an officer might
distinguish between a “demonstrator” and a person walking to
work or enjoying a stroll through the park, let alone how one
would distinguish someone engaged in an allegedly illegal
assembly from a passerby interested in hearing the political
speech of protestors. Ultimately, this case is not about a group
of lawbreakers entering an uninhabited park and then remaining
united inside. Nothing suggests that unlawful actors who may
have entered the park remained there or that law-abiding persons
stayed outside. Thus, after letting significant time elapse while
a diverse crowd entered and exited the park freely, police
arrested everyone who happened to occupy the park at a
particular, randomly chosen moment. No authority supports the
proposition that such an arrest, wholly lacking in particularized
probable cause and almost certainly swallowing lawful
bystanders, is constitutionally viable.
15
Newsham’s insistence on referring generically to the
individuals who were arrested as “demonstrators” hints at one
other possible justification for casting a net across the entire
park: that police are permitted to control an undifferentiated
mass of people if necessary to quell a large-scale demonstration
that has become unruly or violent. The parties’ arguments
before this court, as well as the District Court’s analysis below,
focus much attention on the circumstances under which police
may deal with a group of demonstrators in the aggregate. Our
cases addressing mass arrest situations have countenanced broad
sweeps under certain limited conditions. But those cases lend
no support to Newsham’s claim for qualified immunity.
Our case law addressing large-scale demonstration
scenarios does not suspend – or even qualify – the normal
operation of the Fourth Amendment’s probable cause
requirements. Rather, this case law merely amplifies one
essential premise that has a bearing on the case at hand: when
compelling circumstances are present, the police may be
justified in detaining an undifferentiated crowd of protestors, but
only after providing a lawful order to disperse followed by a
reasonable opportunity to comply with that order. Two cases
spell this out.
First, in Washington Mobilization Committee v. Cullinane,
566 F.2d 107 (D.C. Cir. 1977), we addressed the First
Amendment implications of the District of Columbia’s “police
line” regulation and “failure to move-on” ordinance, which had
been invoked by police confronting violently disruptive anti-war
protests. The court began by noting the absence of evidence
suggesting any police bias against the content of the protestors’
message. Id. at 119-20. Then, in response to a contention that
the challenged police practices encroached on the First
Amendment because they resulted in the arrest of some innocent
people, the court explained that: “It is the tenor of the
demonstration as a whole that determines whether the police
16
may intervene; and if it is substantially infected with violence or
obstruction the police may act to control it as a unit.” Id. at 120.
The First Amendment does not conflict with the need for
flexibility when dealing with large, unruly assemblies:
“Confronted with a mob the police cannot be expected to single
out individuals; they may deal with the crowd as a unit.” Id.
However, the Cullinane decision includes an important caveat:
We do not suggest of course that one who has violated no
law may be arrested for the offenses of those who have
been violent or obstructive. As we have seen however the
police may validly order violent or obstructive
demonstrators to disperse or clear the streets. If any
demonstrator or bystander refuses to obey such an order
after fair notice and opportunity to comply, his arrest does
not violate the Constitution even though he has not
previously been violent or obstructive.
Id. In this case, police officials faced a fluid situation in
Pershing Park. There was a significant time lag between the
demonstrators’ disruption of traffic and their assembly in the
park. People were in the park before the demonstrators arrived
and countless individuals flowed freely in and out of the park
after the demonstrators arrived. Newsham does not deny that
many individuals in the park were law-abiding. Indeed, it is
undisputed that, at the time of the mass arrest, Newsham had no
basis for suspecting that all of the occupants of Pershing Park
were then breaking the law or that they had broken the law
before entering the park. In such circumstances, Cullinane
instructs that police officers may quell an unruly demonstration
by “deal[ing] with the crowd as a unit” only after invoking a
valid legal mechanism for clearing the area and then providing
an opportunity for affected persons to follow an order to
disperse. Id. The Fourth Amendment demands nothing less in
a circumstance such as this. See Ybarra, 444 U.S. at 91.
17
Shortly after the decision in Cullinane was issued, the court
had another occasion to explain the constitutional limits on mass
arrests of demonstrators in Dellums. Upholding a jury’s verdict
that the U.S. Capitol Police Chief was liable for violating the
rights of demonstrators arrested on Capitol Hill, Dellums held
that a group of demonstrators lawfully gathered on the Capitol
steps could not be arrested unless the Chief had reason to
believe (1) that the demonstrators could be validly evicted under
the Capitol Grounds ordinance, (2) that the police gave
demonstrators an order to disperse that “apprised the crowd as
a whole that it was under an obligation to leave,” and (3) that
there had been a “reasonable opportunity” to comply. Dellums,
566 F.2d at 183. Dellums emphasized that “the ‘fair notice’
required by the Cullinane court is notice reasonably likely to
have reached all of the crowd despite any noise the
demonstrators may have been making.” Id. at 181-82 n.31.
Close analysis of Dellums and Cullinane reveals just how
indefensible Newsham’s actions were. As a prerequisite to
instituting a mass arrest intended to defuse a volatile
demonstration, police must have a valid legal basis for clearing
the area. Newsham has never invoked any such legal predicate.
Even if he had one – for example, if his officers were authorized
to form a police line and incrementally close off the park – he
could not “deal with the crowd as a unit” unless he first issued
an order to disperse and then provided a reasonable period of
time to comply with that order. Nothing in our earlier cases
ratified Newsham’s actions. More important, Dellums and
Cullinane put Newsham, a reasonable police officer, on notice
that the Constitution does not tolerate the unwarranted,
indiscriminate arrest of hundreds of individuals as a response to
the demonstration that he faced.
Institutionally, moreover, MPD clearly grasped the
constitutional rights elaborated in the applicable case law.
MPD’s Manual for Mass Demonstrations and Responding to
18
Civil Disturbances instructs officers on the protocol for dealing
with situations like the one Newsham faced. Under the
guidelines established by the department (which are only
partially reproduced in the record), officers seeking to disperse
a crowd must “attempt to verbally persuade the crowd to
disperse of its own accord” by issuing an “initial warning”
followed by a “final warning.” Then, “if, after a reasonable
amount of time following the final warning, the crowd continues
in its refusal to disperse, the unit commander shall direct that the
violators be arrested.” MPD Manual for Mass Demonstrations
and Responding to Civil Disturbances at 21, J.A. 564.
Significantly, the MPD Manual acknowledges that its
procedures embody judicially enunciated constitutional
principles. It prefaces the discussion of mass arrest procedures
by noting: “Following the civil disturbances of April 1968,
procedures were developed by the Metropolitan Police
Department, in cooperation with the courts, to provide for the
speedy, but fair administration of justice during mass arrest
situations.” Id. at 22, J.A. 565. The procedures now in place
apparently resulted from “court ordered prescriptions against
certain mass arrest techniques followed during the April 1971[]
disorders.” Id. Standing alone, an internal procedure might not
create a predicate for piercing an officer’s qualified immunity.
Groh v. Ramirez, 540 U.S. 551, 564 n.7 (2004). But framed as
a response to “court ordered prescriptions,” it is further proof
that the rights violated by Newsham were clearly established
when he acted.
C. Chief Ramsey’s Claim to Immunity
Having found that the mass arrest Newsham ordered
violated clearly established constitutional rights, we now
examine whether Chief Ramsey’s involvement with the arrest
deprives him of qualified immunity. Ramsey’s participation in
the arrests is distinct from Newsham’s in a critical respect: he
denies knowing that the park had not been cleared of law-
19
abiding bystanders. If this claim is validated, Ramsey might be
entitled to maintain his qualified immunity. The record
assembled for summary judgment, however, does not permit a
definitive resolution of this factual question. Thus, under the
Supreme Court’s holding in Johnson, 515 U.S. at 307, the
District Court’s decision denying Ramsey’s motion for summary
judgment is not appealable.
As noted above, denials of summary judgment on qualified
immunity grounds fall within the “small class” of non-final
orders suitable for review. But this extension of appellate
jurisdiction is not endlessly elastic. The Supreme Court has
instructed that when the District Court’s decision correctly
“resolved a fact-related dispute about the pretrial record,”
namely, that the evidence in the pretrial record revealed a
genuine issue of fact for trial, immediate appellate review is not
available. Id. The Court explained that the justification for
reviewing certain denials of summary judgment followed from
the importance of appellate court intervention to protect officials
from standing trial if a district court erroneously articulated a
clearly established principle of constitutional law. Id. at 312.
That justification evaporates, however, when an immediate
appeal would require a reviewing court to delve into the
underlying merits of a case. The Court expressed particular
wariness about forcing appellate courts to prematurely untangle
“factual controversies about, for example, intent – controversies
that, before trial, may seem nebulous.” Id. at 316. Because we
find that Ramsey’s claim to immunity turns on just such a
factual controversy, which we are not situated to resolve one
way or another, we conclude that we lack jurisdiction to make
the findings necessary to definitively rule on his claim for
qualified immunity.
The critical question in adjudicating Ramsey’s claim to
qualified immunity is whether he knew all of the salient facts
that rendered the mass arrest unconstitutional – in particular,
20
whether he knew that there was no basis for believing Pershing
Park contained only individuals for whom there was probable
cause to make an arrest. On the record assembled for summary
judgment, the dispositive facts are ambiguous. Newsham stated
that he informed Ramsey of his plans to arrest everyone in the
park, and that he “believed there was probable cause to arrest the
demonstrators” based on offenses witnessed by police.
Newsham Decl. ¶ 18, J.A. 116. Ramsey submitted two
statements about his exchange with Newsham, which bring to
the fore the problem in assessing Ramsey’s entitlement to
qualified immunity. First, after recounting the briefing he
received from Newsham, Ramsey claimed that he “believed . . .
that probable cause existed to support the arrest of persons in
Pershing Park” and that Newsham executed the arrests
“correctly believing that . . . Chief Ramsey tacitly approved
[Assistant Chief] Newsham’s decision.” Mayor Anthony A.
Williams’ & Chief Charles H. Ramsey’s Corrected Statement of
Material Facts ¶ 38, J.A. 134. He further claimed that he “did
not realize, at that point, that the park had not, in fact, been
cleared of people before it came to be a holding area for
individuals that officers had observed engaged in illegal conduct
before those individuals entered the park or that orders to
disperse had not been given to the crowd.” Id. ¶ 39, J.A. 135.
In a subsequent statement, Ramsey repeated his assertion that he
“did not realize” the park had not been cleared before being
populated by lawbreakers, Ramsey Decl. ¶ 23, Supplemental
J.A. 22, but he also stated that “Newsham advised that he
believed that persons who had not been involved in unlawful
activity had been provided an opportunity to leave the park,” id.
¶ 21, Supplemental J.A. 21.
In order to prevail on his motion for summary judgment,
Ramsey needed to show that there was “no genuine issue as to
any material fact and that [he was] entitled to a judgment as a
matter of law” on the question of whether he facilitated,
approved, or condoned Newsham’s actions. FED. R. CIV. P.
21
56(c). That determination hinged on how knowledgeable
Ramsey was about the conditions surrounding Newsham’s
actions. Merely being Newsham’s supervisor was not enough
to attach liability to Ramsey. Int’l Action Ctr., 365 F.3d at 27.
But if he knowingly allowed a subordinate to transgress
constitutional limits, then Ramsey courted liability. “A
supervisor who merely fails to detect and prevent a subordinate's
misconduct . . . cannot be liable for that misconduct. ‘The
supervisor[] must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what they
might see.’” Id. at 28 (quoting Jones v. City of Chicago, 856
F.2d 985, 992 (7th Cir. 1988)) ( second alteration in original).
The record precludes the conclusion that no genuine issue
existed as to Ramsey’s degree of knowledge about the situation
he confronted. First, and most significantly, Ramsey’s
statement that he “did not realize” the park had not been cleared
is not enough to establish an undisputed fact, because both he
and others submitted statements that do not square with
Ramsey’s denial. There appears to be a contradiction between
Ramsey’s initial claim that he “tacitly approved” Newsham’s
actions without having discussed whether the park was cleared,
and his subsequent statement that Newsham assured him the
park had in fact been cleared of innocent persons. And, after
reviewing the record before it, the District Court opined that
“[a]t worst, Chief Ramsey knew the dispersal order had not been
given and thus deliberately flaunted [sic] existing law and MPD
policies; at best, he turned a ‘blind eye’ to the situation and
refused to ask the questions necessary to ascertain whether
arrests were constitutionally permitted.” Barham, 338 F. Supp.
2d at 62. Ramsey arrived on the scene to find a large public
space, teeming with people and bounded by a perimeter that
allowed easy access and egress until it was sealed by police.
The plausibility of his claim that he thought all law-abiding
bystanders had been evacuated, while hundreds of lawbreakers
were corralled into an enclosed area, is not ascertainable from
22
the record. These factual puzzles are not susceptible to
resolution on the record before us. Nor are they for us to decide.
They are issues for the fact finder, and the District Court was
therefore correct in allowing the claims against Ramsey to
proceed.
III. CONCLUSION
For the foregoing reasons, we affirm the District Court’s
denial of Newsham’s motion for summary judgment, and we
conclude that we lack jurisdiction to review its denial of
Ramsey’s motion.