United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2008 Decided February 20, 2009
No. 07-5305
JEFFREY BARHAM, ET AL.,
APPELLEES
v.
KENNETH LEE SALAZAR, SECRETARY,
DEPARTMENT OF INTERIOR, ET AL.,
APPELLANTS
Consolidated with 07-5306
Appeals from the United States District Court
for the District of Columbia
(No. 02cv02283)
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for federal appellants. With her on the briefs were
Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney. Rudolph Contreras, Assistant U.S.
Attorney, entered an appearance.
Jonathan Turley argued the cause for appellees. With him
on the brief were Carl Messineo, Mara Verheyden-Hilliard, and
Daniel C. Schwartz.
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Before: SENTELLE, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
Concurring opinion filed by Circuit Judge HENDERSON.
SENTELLE, Chief Judge: Appellant Richard Murphy, a
United States Park Police official at the time of the events in
question, was sued in his personal capacity for his participation
in a mass arrest that occurred during demonstrations in
September 2002 in protest against policies of the World Bank
and International Monetary Fund. Murphy argued to the district
court that he was entitled to qualified immunity, under which he
would be shielded from liability. The district court denied
Murphy’s motion to dismiss and for summary judgment on the
basis of qualified immunity, and Murphy filed the instant
interlocutory appeal. Controlling precedent establishes that our
jurisdiction to hear interlocutory appeals in qualified immunity
cases does not extend to appeals in which the underlying
decision relies upon resolution of disputed facts. Because
Murphy’s claim to qualified immunity depends on resolving
facts in dispute, we conclude that we lack jurisdiction to review
the district court’s determination.
Background
The factual history of this case has been set forth in detail
before. See Barham v. Ramsey, 434 F.3d 565, 569-71 (D.C. Cir.
2006); Barham v. Ramsey, 338 F.Supp.2d 48, 52-54 (D.D.C.
2004). We will therefore focus only on the facts necessary to
resolve the issue before us.
3
On Friday, September 27, 2002, mass demonstrations were
held in Washington, D.C., protesting the meetings of the World
Bank and International Monetary Fund. Around 8:15 a.m. a
large group of individuals began to gather in General John
Pershing Park (“Pershing Park” or “Park”), located on
Pennsylvania Ave., N.W., between 14th Street and 15th Street,
across from the White House grounds. At about this same time,
officers of the Metropolitan Police Department (“MPD”), led by
Assistant Chief Peter Newsham, began stationing around the
perimeter of the Park. About an hour later, United States Park
Police officers, after being informed of the gathering, arrived at
Pershing Park led by appellant Major Richard Murphy, who, at
that time, was Commander of the Special Forces Branch of the
U.S. Park Police. Around 9:20 a.m., an MPD officer asked
Murphy to assist the MPD in surrounding the Park, at which
point Park Police officers were sent to the north and south sides
of the Park. Murphy had two separate exchanges with MPD
Assistant Chief Newsham. According to Murphy, during the
first exchange, Newsham asked Murphy if those in the Park
could be arrested for demonstrating without a permit. Murphy
responded that they could be arrested, but that it was Park Police
policy not to arrest unless the demonstrators had first been
warned and given an opportunity to disperse. Soon thereafter,
Newsham informed Murphy that the individuals in Pershing
Park were going to be arrested for failure to obey a police order
to disperse that was given to them before they entered the Park.
Around this same time MPD Chief Charles Ramsey arrived
on the scene. He too was informed by Newsham that the
individuals in the Park were going to be arrested. All persons in
the Park were subsequently arrested for failure to obey an
officer. Many of those arrested later brought suit against various
police agencies and officials, alleging constitutional, statutory,
and common law violations stemming from the arrests. MPD
Chief Ramsey, Assistant Chief Newsham, and Park Police
4
Major Murphy were also sued in their individual capacities. The
essence of the suit is that the defendants violated the plaintiffs’
constitutional rights when the police cordoned off Pershing Park
and then initiated a mass arrest. In the district court, Murphy
filed a motion to dismiss the case against him on grounds of
qualified immunity. Pursuant to Int’l Action Ctr. v. United
States, “[q]ualified 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.’” 365 F.3d 20,
24 (D.C. Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). The district court denied the motion. Murphy
appeals.
Discussion
We have had prior occasion to address two other claims of
qualified immunity by police officials involved in a mass arrest.
See Barham v. Ramsey, 434 F.3d 565, 569-71 (D.C. Cir. 2006)
(“Ramsey”). We began our analysis there, as we do here, by
noting that 28 U.S.C. § 1291 gives appellate courts jurisdiction
over “final decisions” of the district courts. Id. at 571.
Ordinarily, district court final decisions are appealable only at
the conclusion of district court proceedings. There are,
however, certain types of district court decisions that are too
important and too independent of the merits of the action to
await the end of district court proceedings before appellate
review is allowed. See Cohen v. Beneficial Indus. Loan, 337
U.S. 541, 546 (1949). Included in this category of interlocutory
appeals is a denial by the district court of qualified immunity.
As we noted in Ramsey, qualified immunity shields certain
deserving officials from undergoing the burdens of litigation,
and if denial of a claim of qualified immunity were not
immediately appealable then the doctrine would be eviscerated.
434 F.3d at 571. However, “this extension of appellate
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jurisdiction is not endlessly elastic.” Id. at 577. In Johnson v.
Jones, the Supreme Court held that immediate appellate review
is not allowed if a district court’s decision “resolved a fact-
related dispute about the pre-trial record.” 515 U.S. 304, 307
(1995); see also Ramsey, 434 F.3d at 571.
In Ramsey, MPD Police Chief Ramsey and Assistant Police
Chief Newsham moved to dismiss the suits against them under
the doctrine of qualified immunity. The district court denied the
motions, and on interlocutory appeal we affirmed the district
court’s denial of Newsham’s motion. Nevertheless, we
concluded that we lacked jurisdiction to review the court’s
denial of Ramsey’s motion.
In discussing Newsham’s qualified immunity claims, we
first made reference to the two-part inquiry set forth in Saucier
v. Katz, 533 U.S. 194, 201 (2001), for determining whether a
government official is protected by qualified immunity.* See
Ramsey, 434 F.3d at 572. Under that inquiry, a court determines
the threshold question of whether, taking the facts in the light
most favorable to the alleged injured party, “the facts alleged
show the officer’s conduct violated a constitutional right.” Id.
(quoting Saucier, 533 U.S. at 201). If that question is answered
in the affirmative, the court then asks whether the constitutional
right was clearly established. Ramsey, 434 F.3d at 572 (citing
Saucier, 533 U.S. at 201). In Newsham’s case, we answered the
threshold question in the affirmative, as the plaintiffs’ complaint
was that they were arrested without probable cause while
engaged in acts protected by the First Amendment. Ramsey, 434
F.3d at 572. We also answered the second question in the
*
We note that the Supreme Court recently held “that the
Saucier protocol should not be regarded as mandatory in all cases.”
Pearson v. Callahan, – S. Ct. –, 2009 WL 128768 (U.S.), at *11
(Jan. 21, 2009).
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affirmative, finding that Newsham did not have probable cause
to make the mass arrests because he “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.”
Id. at 574. And we further noted the “fluidity of movement in
and around the Park,” as well as Newsham’s not denying that
many individuals in the Park were law-abiding, as additional
grounds for concluding that there was no probable cause for the
mass arrest. Id. We consequently affirmed the district court’s
denial of Newsham’s request for qualified immunity. Id. at 579.
We next considered Chief Ramsey’s qualified immunity
claim. Id. at 577-78. We noted that, according to the record
assembled for summary judgment, at some point after Newsham
ordered the Park to be cordoned off, Ramsey arrived on the
scene. Id. at 577. At this point, Newsham stated to Ramsey
that there was probable cause to arrest those in the Park for
offenses committed before they entered the Park. Id. Ramsey
stated that he was unaware that the Park contained individuals
who were not previously observed engaging in unlawful
activity. Id. at 578. Ramsey’s situation was different from
Newsham’s, we observed, in that Ramsey denied knowing that
the Park had not been cleared of law-abiding individuals. Id.
We noted that if this claim by Ramsey was valid then Ramsey
might be entitled to qualified immunity. Id. But we also noted
that, because of contradictions in the record concerning
Ramsey’s claim, this factual question could not be answered
definitively. Id. Accordingly, under the Supreme Court’s
holding in Johnson v. Jones, we concluded that the denial of
qualified immunity to Ramsey was not reviewable on
interlocutory appeal. Id. at 577-578.
In its consideration of Murphy’s request for qualified
immunity in the present case, the district court relied on our
disposition of Newsham’s qualified immunity claim in Ramsey.
7
Chang v. United States, Civ. Action Nos. 02-2010, 02-2283,
2007 WL 2007335, at *10 (D.D.C. July 10, 2007). The district
court first noted that, in denying Newsham’s claim for qualified
immunity, this court rejected Newsham’s argument that there
was probable cause for the arrests based on the failure to obey
a police order. Id. The district court also noted that we held that
Newsham had presented “no facts capable of supporting the
proposition that Newsham had reasonable, particularized
grounds to believe that every one of the 386 people arrested was
observed committing a crime.” Id. (quoting Ramsey, 434 F.3d
at 574). Further, the court noted that this court had pointed to
the fluidity of movement in and around the Park preceding the
arrests as a further basis for discrediting any attempt by
Newsham to argue probable cause. Chang, 2007 WL 2007335,
at *10 (citing Ramsey, 434 F.3d at 574). The district court
found no relevant distinction between Murphy’s conduct and
Newsham’s. Chang, 2007 WL 2007335, at *10. In its opinion
the court concluded that “Murphy cannot point to undisputed
facts that suggest that the Park Police had a basis for believing
that Pershing Park contained only individuals for whom there
was probable cause to make an arrest.” Chang, 2007 WL
2007335, at *9. The court determined that, when Murphy
arrived at the Park, he observed people entering and leaving the
Park, he made no independent assessment of whether there was
probable cause to arrest all individuals in the Park, and he did
not see any violent activity by individuals there. Chang, 2007
WL 2007335, at *10. The district court further determined that,
although Newsham told Murphy that those in the Park were
being arrested for disobeying a police order, Murphy did not
know which order, who disobeyed it, or when the disobedience
occurred. Id. Based on these determinations, the district court
concluded that it was not reasonable for Murphy, in participating
in the mass arrests, to rely only on Newsham’s statement that all
of the individuals in the Park were being arrested for failing to
obey a police order. Id. The district court consequently denied
8
Murphy’s motions to dismiss and for summary judgment on the
ground of qualified immunity. Id.
On review, however, we conclude that Murphy’s situation
is more analogous to Ramsey’s than to Newsham’s, and
consequently we lack jurisdiction over this interlocutory appeal.
According to Murphy, early on the morning of the
demonstrations, he was in Park Police mobile headquarters near
the White House; his main objective at the time of the
demonstrations was the security of the White House. While at
mobile headquarters, Murphy received reports that protestors in
different parts of the city were marching in the streets, as well as
reports that intersections were being disrupted. After receiving
a radio transmission that protestors were in Pershing Park,
across from the White House grounds, Murphy left mobile
headquarters and proceeded towards the Park. Upon arrival, he
observed individuals in the Park, and he was then stopped by an
MPD official who asked Murphy for Park Police help in holding
those individuals in the Park. Murphy stated that at this time he
was “scampering around,” and that he felt this was an “urgent
situation” as he wanted to prevent movement of those in the
Park towards the White House. Soon thereafter, Murphy was
approached by Assistant Chief Newsham, at which time
Newsham asked Murphy if the group in Pershing Park had a
permit to demonstrate there. After Murphy advised that the
group did not, Newsham asked Murphy if those in the Park
could be arrested for demonstrating without a permit. Murphy
replied that they could be arrested, but that it was Park Police
policy to order such groups to disperse first. Murphy then
overheard a high ranking MPD official state that those in the
Park had been involved in acts of vandalism and other crimes
before they had arrived at the Park. A second conversation with
Newsham then ensued, during which Newsham indicated to
Murphy that the individuals in the Park were going to be
9
arrested for failing to obey a police order to get out of the street
made prior to their congregating in the Park. Murphy ordered
his men to assist MPD in forming lines around the Park to
prevent those inside from leaving. At the same time, however,
it appears that Murphy saw, at least from a distance, individuals
freely coming and going from the Park.
In Ramsey, we noted that a critical question in deciding
Ramsey’s claim to qualified immunity turned on “[t]he
plausibility of his claim that he thought all law-abiding
bystanders had been evacuated, while hundreds of lawbreakers
were corralled into an enclosed area.” Ramsey, 434 F.3d at 578.
Ramsey claimed that he did not know that Pershing Park had not
been cleared of law-abiding bystanders before the mass arrests
were conducted. Id. We found, however, that that claim was not
undisputed, and consequently that Johnson v. Jones barred us
from exercising jurisdiction over an interlocutory appeal on
factual issues. Id. at 577-78. Here, if Murphy shows that he had
an objectively reasonable “basis for believing that Pershing Park
contained only individuals for whom there was probable cause
to make an arrest,” id. at 577, then he may be entitled to qualified
immunity. But the record assembled so far does not lead to a
determination as to whether Murphy in fact has this basis.
Murphy states that he trusted Newsham that probable cause
existed to arrest those in the Park. But this statement is not
enough to establish an undisputed fact. Following our
disposition of Chief Ramsey’s claims in Ramsey, we conclude
that Murphy’s claim that he had a basis for believing that there
was probable cause to arrest all individuals in Pershing Park
cannot be determined on the record before us. See id. Moreover,
this issue is not for this court to decide; rather, it is an issue to be
determined by a fact finder, and “the District Court was therefore
correct in allowing the claims against [Murphy] to proceed.” Id.
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Conclusion
For the foregoing reasons we conclude that we lack
jurisdiction to review the district court’s denial of Murphy’s
motions regarding qualified immunity.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
Although I agree with my colleagues that we lack jurisdiction to
review the district court’s denial of Murphy’s claim to qualified
immunity because of a factual dispute, I write separately to
emphasize a point of law. In United States v. Hensley, 469 U.S.
221 (1985), the United States Supreme Court concluded that a
police officer may make a Terry stop in “objective reliance” on
a “flyer or bulletin . . . issued on the basis of articulable facts
supporting a reasonable suspicion.” 469 U.S. at 232. The Court
noted that even if the flyer were issued absent reasonable
suspicion, “the officers making the stop may have a good-faith
defense to any civil suit.” Id. Similarly, an officer may rely on
another officer’s determination of probable cause to make an
arrest, which will often be the case in a rapidly evolving—and
potentially deteriorating—situation like the one confronting
Murphy. See id. at 231 (“‘[E]ffective law enforcement cannot
be conducted unless police officers can act on directions and
information transmitted by one officer to another and . . .
officers, who must often act swiftly, cannot be expected to
cross-examine their fellow officers about the foundation for the
transmitted information.’” (quoting United States v. Robinson,
536 F.2d 1298, 1299 (9th Cir. 1976)); United States v.
Loundmannz, 472 F.2d 1376, 1379 (D.C. Cir. 1972) (probable
cause exists if officer ordering arrest has “adequate first-hand
knowledge to support a finding of probable cause” even though
arresting officer does not have first-hand knowledge); Daniels
v. United States, 393 F.2d 359, 361 (D.C. Cir. 1968) (“There is
no requirement that the arresting officer have sufficient firsthand
knowledge to constitute probable cause. It is enough that the
police officer initiating the chain of communication either had
firsthand knowledge or received his information from some
person . . . who it seems reasonable to believe is telling the
truth.”). As noted by the majority, Murphy states that he relied
on Newsham’s determination that probable cause existed to
arrest the hundreds of individuals in Pershing Park for failure to
obey a police order before entering the Park. Murphy’s reliance,
however, must be objectively reasonable for him to be clothed
2
with qualified immunity. Murphy states that he “had nothing in
the way of an opinion or reason . . . to contradict or not to
believe what [Newsham] was telling [him] was true.” Tr. of
Deposition of Richard Murphy at 252:10-13, Barham v. Ramsey,
Civ. No. 02-2283 (D.D.C. Feb. 2, 2005) (Dep. Tr.). But
Murphy’s statement that he “s[aw] citizens coming and going
from a distance further on the south side of Pershing Park in the
vicinity of 14th Street,” Dep. Tr. 229:13-15, creates a genuine
issue of material fact regarding whether his reliance on
Newsham’s determination that probable cause existed to arrest
every individual in the Park was objectively reasonable.
Murphy differs in this respect from Newsham, whom we earlier
found not entitled to qualified immunity as a matter of law.
Barham v. Ramsey, 434 F.3d 565, 568 (D.C. Cir. 2006). I read
the majority opinion, Maj. Op. at 9, to leave open the possibility
that Murphy, like MPD Chief Charles Ramsey, may yet have
qualified immunity if the facts are resolved in his favor. See
Barham, 434 F.3d at 568 (“[Ramsey’s] 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 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.”).