Dukore v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2015 Decided August 25, 2015

No. 13-7150

SAMUEL DUKORE AND KELLY CANAVAN,
APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00409)

Jeffrey Light argued the cause and filed the briefs for
appellants.

Stacy L. Anderson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees. With her on the brief were
Irvin B. Nathan, Attorney General at the time the brief was
filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan,
Deputy Solicitor General.

Before: TATEL and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.
 2

MILLETT, Circuit Judge: The “Occupy Movement”
claims as its purpose the exposure of “how the wealthiest 1%
of society are promulgating an unfair global economy[.]”
Second Amended Complaint ¶ 11. A “core component” of
the movement’s message is “peaceful protests, or
‘occupations’” accomplished through the “physical
occupation” of public spaces, which is “expressed through the
establishment of tents.” Id. ¶ 14.

In the District of Columbia, however, a municipal
regulation forbids any person from “set[ting] up,
maintain[ing], or establish[ing] any camp or any temporary
place of abode in any tent” on public property without the
Mayor’s authorization. D.C. Code. Mun. Regs. Title 24,
§ 121.1. Occupy members Samuel Dukore and Kelly
Canavan were arrested for violating that regulation when, late
one February evening, they assembled and sat inside an
Occupy tent on a sidewalk by Merrill Lynch’s office in
Washington, D.C. Dukore and Canavan then sued, alleging
that their arrests violated their rights under the federal
Constitution and District law. Because their arrests did not
violate clearly established law, we affirm the district court’s
dismissal of their complaint.

I

Statutory and Regulatory Background

A District of Columbia municipal regulation provides
that:

No person or persons shall set up, maintain, or establish
any camp or any temporary place of abode in any tent,
wagon, van, automobile, truck, or house trailer, of any
 3
description, or in any combination, on public or private
property, without the consent of the Mayor of the District
of Columbia.

D.C. Code. Mun. Regs. Title 24, § 121.1.

The District’s First Amendment Assemblies Act
provides, as relevant here, that “individuals conducting a First
Amendment assembly * * * may use a stand or structure so
long as it does not prevent others from using the sidewalk.”
D.C. Code § 5-331.05(g). The Assemblies Act cautions,
however, that assemblies and protests may be subject to
“reasonable time, place, and manner restrictions[.]” D.C.
Code § 5-331.04(b).

Factual Background

Because the district court dismissed the complaint for
failure to state a claim, we must accept as true the following
facts as alleged in the Second Amended Complaint
(“Complaint”). See Klayman v. Zuckerberg, 753 F.3d 1354,
1357 (D.C. Cir. 2014).

On the evening of February 13, 2012, Dukore and
Canavan joined with a group of fewer than fifty protesters and
set up tents on the sidewalk outside Merrill Lynch’s
Washington, D.C., office to “express Plaintiffs’ statement of
the 99% taking back society and government from the grip of
banking and financial institutions[.]” Complaint ¶ 20. The
tents, which “clearly identified the protest as part of Occupy
DC,” did not prevent others from using the sidewalk. Id.
Some time after the protesters had set up their tents, officers
from the Metropolitan Police Department instructed them to
remove their tents or face arrest. Id. ¶ 24. The officers
 4
repeated that directive about forty-five minutes later, at which
point the protesters took down all of the tents. Id. ¶ 25.

But Dukore and Canavan then reassembled one of the
tents and sat down inside of it. Complaint ¶ 26. There was
“no visible sleeping/living equipment inside or around the
tent[.]” Id. ¶ 28. After three warnings, the police arrested
Dukore and Canavan for violating the regulation against
setting up a temporary abode on public grounds. Id. ¶ 26.
The arrest occurred “at approximately 10:44 p.m.” Dukore
Br. 14 n.8; see also District Br. 24. Dukore and Canavan
were released “approximately 3-4 hours later,” and the
charges were subsequently “no-papered” (that is, dropped).
Complaint ¶ 26. The tent was seized, and Dukore and
Canavan were not told how they could retrieve it. Id. ¶ 27.
They believe that the tent was destroyed. Id.

Procedural History

Dukore and Canavan filed suit in the United States
District Court for the District of Columbia alleging (i) false
arrest and false imprisonment under District of Columbia law,
(ii) wrongful conversion of their tent, (iii) retaliatory arrest in
violation of the First Amendment, (iv) arrest without probable
cause in violation of the Fourth Amendment, and (v)
deprivation of their tent without due process, in violation of
the Fifth Amendment. Complaint ¶¶ 37–60. The Complaint
named as defendants the District of Columbia, several police
officers, and an Inspector at the District’s Department of
Consumer and Regulatory Affairs, who allegedly advised the
officers on the scene of the applicability of the temporary-
abode regulation (collectively, “the District”). Complaint
¶¶ 3–6.

The district court granted the District’s motion to dismiss.
It concluded that Dukore and Canavan had failed to state a
 5
claim for false arrest or imprisonment, or for the alleged Fifth
Amendment violation, and that the individual defendants were
entitled to qualified immunity on the First and Fourth
Amendment claims. The court dismissed all of those counts
with prejudice. See Dukore v. District of Columbia, 970 F.
Supp. 2d 23, 34 (D.D.C. 2013). The court also ruled that
Dukore and Canavan had stated a claim for conversion, but at
their request, dismissed that count of the complaint “without
prejudice to re-file in [D.C.] Superior Court.” Id. at 34 n.9
(internal quotation marks omitted). The court designated its
order dismissing the action as “a final, appealable order.”
J.A. 41.

Dukore and Canavan timely appealed. The conversion
claim is not at issue on appeal because the district court
dismissed it at Dukore’s and Canavan’s request. Dukore and
Canavan have also chosen not to press their Fifth Amendment
due process claim on appeal, so the district court’s dismissal
of that claim is conclusive.

II

Analysis

Jurisdiction

The first order of business is always to decide whether
we can decide the appeal. The district court had federal
question jurisdiction over the constitutional claims, 28 U.S.C.
§ 1331 and 42 U.S.C. § 1988, and supplemental jurisdiction
over the related District law claims, 28 U.S.C. § 1367. This
court has appellate jurisdiction under 28 U.S.C. § 1291 over
“final decisions” of the district court.

Confirming our jurisdiction is usually an easy task in
cases where plaintiffs with obvious standing raise federal
 6
questions on appeal from a federal district court’s final
judgment. There is a wrinkle in this case though: the district
court’s final judgment included the dismissal of one claim—
the conversion claim—without prejudice, at Dukore’s and
Canavan’s request. The federal courts of appeals have issued
conflicting decisions on whether and when a voluntary
dismissal without prejudice constitutes a final judgment for
purposes of appeal. See, e.g., Robinson-Reeder v. American
Council on Education, 571 F.3d 1333, 1338–1339 (D.C. Cir.
2009); see also Blue v. District of Columbia Public Schools,
764 F.3d 11, 17 (D.C. Cir. 2014) (collecting cases).

A decision “is not final, ordinarily, unless it ends the
litigation on the merits and leaves nothing for the [district]
court to do but execute the judgment.” Cunningham v.
Hamilton County, 527 U.S. 198, 204 (1999) (internal
quotation marks omitted). Accordingly, when a district court
resolves some, but not all, of the claims in a complaint, the
judgment is generally non-final and non-appealable. See, e.g.,
Cambridge Holdings Group, Inc. v. Federal Ins. Co., 489
F.3d 1356, 1359–1360 (D.C. Cir. 2007). The only way to
take an appeal from such a partial disposition is if the district
court both chooses to “direct entry of a final judgment as to
one or more, but fewer than all, claims or parties,” and
“expressly determines that there is no just reason for delay.”
Fed. R. Civ. P. 54(b). 1

1
A small class of orders may qualify for interlocutory appeal. See,
e.g., Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 106
(2009) (describing collateral order doctrine); see also In re District
of Columbia, --- F.3d ---, 2015 WL 3916061, at *2 (D.C. Cir. June
26, 2015) (interlocutory appeal of class certification under Fed. R.
Civ. P. 23(f)); 28 U.S.C. § 1292 (jurisdiction to review certain
interlocutory orders). This case does not involve any such order.
 7
Parties cannot stipulate their way out of the final
judgment rule or Rule 54(b)’s strict limitations. The
“voluntary but non-prejudicial dismissal[] of remaining
claims” is “insufficient to render final and appealable a prior
order disposing of only part of the case.” Blue, 764 F.3d at
17; see also Robinson-Reeder, 571 F.3d at 1338–1340.

The question in this case is whether the district court’s
dismissal of the conversion claim without prejudice as part of
a single order dismissing the entire action ran afoul of that
jurisdictional rule. We hold that it did not, because the
district court, not the parties, controlled the terms of dismissal
in this case, and the final judgment dismissing the action in
full in a single, dispositive order protects against manipulation
of the courts’ jurisdiction.

In Blue, the district court dismissed the plaintiff’s claims
against one defendant but not another. 764 F.3d at 14. As a
result, the case against the remaining defendant remained
active and unresolved, and the district court declined to certify
its partial judgment for appeal under Rule 54(b). The plaintiff
then tried to bypass the district court’s declination by entering
a joint stipulation of dismissal without prejudice with the
remaining defendant, “subject to a confidential settlement
agreement with a tolling provision” that would have permitted
a refiling of the claim after the appeal. Id. at 16; see also id.
at 14–15.

We held that such a party-initiated voluntary dismissal,
especially in the wake of the district court’s decision denying
certification under Rule 54(b), was insufficient to render the
court’s judgment final for purposes of appellate jurisdiction.
Blue, 764 F.3d at 19. Otherwise parties would be free to
entirely supplant the district court’s screening function—the
court’s role as “dispatcher”—under Rule 54(b), and could
 8
make final a case with which neither the district court nor the
parties are genuinely done. Id. at 18. The entry of a minute
order by the district court did not suffice because it was a
mere “ministerial acknowledgement of the parties’ joint
stipulation,” which the district court was obliged to grant
unless it found prejudice to the defendant. Id. at 19.

Similarly, in Robinson-Reeder, the district court
dismissed some claims in the complaint, but left one claim
unresolved. 571 F.3d at 1335–1336. Before the district court
ruled on the defendant’s motion to dismiss the remaining
claim, the parties filed a joint stipulation dismissing the final
claim without prejudice. Id. at 1336. We held that such a
voluntary stipulation by the parties does not satisfy Rule
54(b)’s requirement of an express determination by the
district court that a partial dismissal should be treated as final.
That is because dismissal was “accomplished by stipulation of
the parties alone pursuant to Federal Rule of Civil Procedure
41(a)(1).” Robinson-Reeder, 571 F.3d at 1339. We
accordingly dismissed the appeal for lack of jurisdiction. Id.
at 1339–1340.
This case bears no relevant similarity to Blue or
Robinson-Reeder. Here, the district court entered a single,
final judgment, designated as such by the court itself, in
which “all pending claims against all parties were resolved.”
Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d
156, 162 (D.C. Cir. 2005) (Roberts, J.). Absent appellate
reversal, the federal action is concluded with nothing left to
be done.

While the voluntary dismissal without prejudice may
allow Dukore and Canavan to refile their local law claim in
District of Columbia Superior Court, the action’s dismissal
from federal court is conclusive because there is no basis for
federal jurisdiction to refile that claim by itself. See Murray
 9
v. Gilmore, 406 F.3d 708, 712 (D.C. Cir. 2005) (appealable
dismissal of an action signified by district court designating
its order as “final and appealable”); Ciralsky v. CIA, 355 F.3d
661, 667 (D.C. Cir. 2004) (“Although it is true that [the
plaintiff] may be able to re-file because the dismissal was
without prejudice, that does not change the fact that, in the
absence of such an affirmative act on [plaintiff’s] part, the
case is at an end.”). The district court accordingly fulfilled its
function as “gatekeeper for the court of appeals,” Blue, 764
F.3d at 18, and the court alone determined when the case was
over and its order became final. The district court’s control of
the disposition and issuance of a single final judgment
eliminated the “risk [of] empowering parties to take over” the
district court’s “dispatcher function” that can arise from
partial dispositions. Id. 2

With our jurisdiction assured, we press on to the merits.

Probable Cause to Arrest

Disposition of Dukore’s and Canavan’s Fourth
Amendment and false arrest claims hinges largely on the

2
To be sure, the district court’s labeling its order as “final and
appealable,” standing alone, ordinarily would not render that order
appealable under Rule 54(b). See Blackman v. District of
Columbia, 456 F.3d 167, 176 (D.C. Cir. 2006) (“[E]ven if the
record indicates no just reason for delay, an order is not final under
Rule 54(b) unless it contains the ‘express determination’ thereof.”).
But this is not a Rule 54(b) case; the court itself entered final
judgment, and the absence of party manipulation, along with
Dukore’s and Canavan’s inability to reinitiate federal court
litigation of the voluntarily dismissed conversion claim, dispose of
the finality concerns that underlay Blue and Robinson-Reeder.
 10
existence or not of probable cause to justify Dukore’s and
Canavan’s arrests. Because probable cause was present, we
affirm the dismissal of both claims.

Probable cause exists “when known facts and
circumstances are sufficient to warrant [an officer] of
reasonable prudence in the belief that an offense has been or
is being committed.” United States v. Davis, 458 F.2d 819,
821 (D.C. Cir. 1972). The probable cause standard does “not
demand any showing that such a belief be correct or more
likely true than false.” Texas v. Brown, 460 U.S. 730, 742
(1983). The existence of probable cause thus turns on
objective considerations, rather than the actual mental state of
the arresting officer. See, e.g., United States v. Jackson, 415
F.3d 88, 91 (D.C. Cir. 2005).

We hold that the arresting officers had probable cause to
conclude that Dukore and Canavan had violated the
temporary-abode regulation. There is no dispute that Dukore
and Canavan “set up” a “tent” on public property, within the
meaning of the District regulation, D.C. Code. Mun. Regs.
Title 24, § 121.1. See Complaint ¶ 26. So the probable-cause
question boils down to whether it was reasonably prudent for
the arresting officers to conclude that, in doing so, Dukore
and Canavan set up a “temporary place of abode.” We have
no doubt that the officers’ judgment was reasonable under the
circumstances. The plain meaning of “temporary” is short-
term in duration. To be sure, the time must still be long
enough for the stay to count as an “abode” rather than a place
of passing respite. If the officers reasonably perceived that
Dukore and Canavan intended to stay through the night hours,
that would suffice. Cf. United States v. Lyons, 706 F.2d 321,
327 (D.C. Cir. 1983) (reasonable expectation of privacy for
Fourth Amendment purposes in hotel room occupied for a
single night).
 11
A reasonable officer could have concluded, on these
facts, that Dukore and Canavan intended to occupy the tent
through the night hours. To begin with, Dukore and Canavan
set up a tent in which they then took shelter. A central
purpose for such a tent is to serve as a temporary place of
shelter and abode. See WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2356 (1993) (defining a “tent”
as a “collapsible shelter * * * used for camping outdoors (as
by soldiers or vacationers)”). And this was not just any tent.
As the complaint avers, the tents at the protest were “clearly
identified” with the Occupy D.C. movement, the purpose of
which was use of the tent for the “physical occupation” of
protest sites. Complaint ¶¶ 14–20. An occupation, by its very
nature, requires some length of time—longer than just passing
through. Or so a reasonable officer could conclude.

In addition, Dukore and Canavan did not merely
assemble a tent on public property late at night. They
reassembled their tent and stayed in it after officers had twice
ordered them to take the tents down and had thrice warned
that they could not lawfully remain inside the reassembled
tent. Complaint ¶ 26. A reasonable officer could interpret
that defiance as exhibiting an intent to stay put inside their
tent for some time. Doubly so given the late night hour when
this all transpired. The only likely options for Dukore and
Canavan at nearly 11:00 p.m. would have been to go home or
stay for a good part of the night. Reassembling and then
occupying the tent in the face of contrary orders by police
strongly suggested the latter possibility.

Dukore and Canavan assail this conclusion on three
grounds, but none works. First, they focus on the
requirement that the tent be a place of “abode” and emphasize
that the tent contained no bedding, heat, or other living
equipment to get them through a cold February night. Those
 12
are fair points. But not enough to change the outcome. The
essence of probable cause is making close judgment calls
based on oftentimes conflicting information. See, e.g.,
Galarnyk v. Fraser, 687 F.3d 1070, 1075 (8th Cir. 2012)
(“[A]n officer faced with conflicting information * * * may
still have probable cause and need not conduct a mini-trial
before effectuating an arrest.”) (internal citations and
quotation marks omitted). Given that the Occupy
Movement’s animating purpose is to oppose economic
injustice and poverty, and that the plaintiffs displayed that
message openly on signs attached to their tent, see Complaint
¶ 28, a reasonable officer could conclude that enduring a
deliberately spartan abode at the feet of Merrill Lynch was
itself part of the protestors’ message. Surely a Winnebago
would have sent the wrong signal.

Second, Dukore and Canavan emphasize that they had
occupied the tent only for “a matter of minutes or hours, not
days.” Dukore Br. 16. “Days” are not needed for a tent to be
a “temporary” abode; “hours” can be enough. Beyond that,
the argument forgets that what cut Dukore’s and Canavan’s
protest short was the intervention of the police. The police
did not need to wait all night for the offense to be completed
to reasonably conclude that Dukore and Canavan had “set up”
a temporary place of abode, D.C. Code. Mun. Regs. Title 24,
§ 121.1.

Third, Dukore and Canavan argue that, notwithstanding
the temporary-abode regulation, the District’s Assemblies Act
protects their right to use a “structure,” specifically a tent, as
part of a protest. D.C. Code § 5-331.05(g). That argument
overlooks that the Assemblies Act expressly allows for
“reasonable time, place, and manner restrictions” on
expressive activity. D.C. Code § 5-331.04(b). The
prohibition on that structure turning into a temporary abode is
 13
precisely such a reasonable time and manner restriction on
protest activities. Cf. Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 294 (1984) (“[S]ymbolic tents * * *
may be expressive and part of the message delivered by [a]
demonstration [but that] does not make the ban [on sleeping
on the National Mall] any less a limitation on the manner of
demonstrating, for reasonable time, place, or manner
regulations normally have the purpose and direct effect of
limiting expression but are nevertheless valid.”).

In sum, because the arresting officers had probable cause
to believe that Dukore’s and Canavan’s late-night reassembly
and persisting occupation of their tent constituted the setting
up of a temporary place of abode, in violation of D.C. law, the
arrest did not violate the Fourth Amendment or constitute a
false arrest. See Scales, 973 A.2d at 729.

Retaliatory Arrest

Dukore and Canavan also argue that the officers arrested
them in retaliation for their protest, in violation of their First
Amendment rights. Qualified immunity bars that claim,
however, because at the time of their arrest it was not clearly
established that an arrest supported by probable cause could
violate the First Amendment’s protection against retaliation. 3

The doctrine of qualified immunity entitles officers to
immunity from suit unless their conduct violated “clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

3
Dukore and Canavan do not argue that the temporary-abode
regulation is so facially unconstitutional that a reasonable officer
would know that an arrest for violating the regulation, even if
supported by probable cause, would violate the First Amendment.
 14
U.S. 800, 818 (1982)). Qualified immunity considers the
state of the law not with 20-20 hindsight, but at the time of the
challenged conduct. See, e.g., Kalka v. Hawk, 215 F.3d 90,
94 (D.C. Cir. 2000). And a right will be held to have been
clearly established at the time of an alleged violation if it
would have been “clear to a reasonable officer that his
conduct was unlawful in the situation that he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001). If the right in
question was not clearly established, we need not broach the
question of whether a constitutional violation occurred
because the officers are entitled to qualified immunity
regardless. See Pearson, 555 U.S. at 236.

In reviewing a grant of qualified immunity, we must
consider the right asserted “not as a broad general proposition,
but in a particularized sense so that the contours of the right
are clear[.]” Reichle v. Howards, 132 S. Ct. 2088, 2094
(2012) (internal citations and quotation marks omitted). So
the right we must consider in this case is “not the general right
to be free from retaliation for one’s speech,” but rather “the
more specific right to be free from a retaliatory arrest that is
otherwise supported by probable cause.” Id.

The Supreme Court has “never held that there is such a
right.” Reichle, 132 S. Ct. at 2094. Nor was there in
February 2012 (nor is there now) any settled consensus view
in this court or other federal courts of appeals such that “the
statutory or constitutional question” has been placed “beyond
debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011);
see also Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011)
(to determine clearly established law, “we look to cases from
the Supreme Court and this court, as well as to cases from
other courts exhibiting a consensus view—if there is one”)
(internal citations and quotation marks omitted). Quite the
opposite, in July 2011, this court recognized that the federal
 15
courts of appeals were split on whether a plaintiff claiming
retaliatory arrest had to show that the arrest lacked probable
cause, and expressly declined to take sides. See Moore, 644
F.3d at 423 n.8. That means that, at the time of the arrests in
this case, precedent in this and other circuits was either
inconclusive or actively in conflict on whether the existence
of probable cause precluded an arrest from being deemed
“retaliatory.” That is a far cry from placing the question
beyond debate.

Dukore and Canavan argue that the right to be free from
retaliation under the First Amendment is clearly established.
And they argue that the only confusion in the law concerned
retaliatory prosecutions, as discussed in Hartman v. Moore,
547 U.S. 250 (2006). Dukore and Canavan further contend
that any ripples of uncertainty generated by Hartman in other
jurisdictions did not unsettle this circuit’s law, because we
have recognized that “retaliatory arrest and retaliatory
prosecution are distinct constitutional violations[.]” Moore v.
Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013). The absence
of confusion in this jurisdiction, they conclude, left as
governing law for the officers the clearly established
background right to be free from retaliation under the First
Amendment.

That argument turns the qualified immunity burden
upside down. It is Dukore’s and Canavan’s burden to show
that the particular right in question—narrowly described to fit
the factual pattern confronting the officers, see Reichle, 132 S.
Ct. at 2094—was clearly established. It was not the District’s
burden to show that the right had been called into question.
The generality of Dukore’s and Canavan’s constitutional
principle and the widespread instability in the law on the
precise question of probable-cause arrests prevent them from
discharging that duty.
 16
III

Conclusion

The district court’s decision to dismiss one count of the
complaint without prejudice, as part of its final order
dismissing the action in its entirety, did not deprive this court
of appellate jurisdiction. On the merits, we affirm the
judgment of dismissal.

So ordered.