Wesby v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed: February 8, 2016

No. 12-7127

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

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00501)

On Petition for Rehearing En Banc
_____

Before: GARLAND, Chief Judge; HENDERSON,** ROGERS,
TATEL, BROWN,** GRIFFITH,** KAVANAUGH,** SRINIVASAN,
MILLETT, PILLARD, ** AND WILKINS,* Circuit Judges
 2
ORDER

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.

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk

* Circuit Judge Wilkins did not participate in this matter.

** Circuit Judges Henderson, Brown, Griffith, and
Kavanaugh would grant the petition for rehearing en banc.

** A statement by Circuit Judge Pillard and Senior Circuit
Judge Edwards, concurring in the denial of rehearing en banc,
is attached. Pursuant to Fed. R. App. P. 35(a), Senior Judge
Edwards, a member of the merits panel, did not participate in
the vote whether to grant rehearing en banc.

** A statement by Circuit Judge Kavanaugh, with whom
Circuit Judges Henderson, Brown, and Griffith join,
dissenting from the denial of rehearing en banc, is attached.
 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 18. It contends that our opinion obliges
officers to accept suspects’ implausible protestations of
innocence and ignore other, circumstantial evidence of
culpability. Id. at 9-10. 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 12, 18. 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)).
 2
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 (1972)). The dissent agrees. See
Dissent 7 (“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 11-14.

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 2, 11. 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 (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,
 3
131 S. Ct. 2074, 2085 (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 9 & 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
 4
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 10-11, 15. 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 15 (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 (1925)], that
probable cause determinations involve an examination of all
facts and circumstances within an officer’s knowledge at the
 5
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 9.

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
knowingly entered ‘against the will of . . . the person lawfully
in charge’”). By the same token, it had long been clear that if
 6
a person has “a bona fide belief” that he is permitted to enter,
“he lacks the element of criminal intent required by” the law
“and is not guilty of unlawful entry.” Smith v. United States,
281 A.2d 438, 439 (D.C. 1971); see McGloin v. United States,
232 A.2d 90, 91 (D.C. 1967). Although the Ortberg case,
which came down after these arrests, stated more precisely the
culpable state of mind required to prove unlawful entry,
Ortberg simply articulated what “decades of case law” had
already made “clear”—that the government must “establish
that the defendant knew or should have known that his entry
was unwanted.” Ortberg v. United States, 81 A.3d 303, 307
(D.C. 2013). Indeed, the model jury instruction for unlawful
entry going back to at least 1993 describes the required state
of mind in those terms. See Criminal Jury Instructions for the
District of Columbia, No. 4.36 (4th ed. 1993) (“The
government must prove beyond a reasonable doubt not only
that the defendant entered against the will of the lawful
occupant of the premises, but also that s/he knew, or should
have known, that s/he was entering against the will of the
occupant.”).

III.

The only criticism we have of the dissent’s view of the
law is that it would relieve the officers of their burden to
justify an arrest by effectively presuming probable cause if
nothing in the record forecloses it. The dissent commits that
error in sketching three scenarios, two that it describes as
supported by probable cause, and one that it acknowledges is
not. Dissent 14-15. The first possibility the dissent identifies
is that, although Peaches invited them, the partygoers knew or
might have known that she was not renting the house and so
could not lawfully invite them there. A second possibility is
that the partygoers might have lied to the police when they
said that Peaches invited them, and that Peaches then made up
 7
a corresponding lie to give her friends cover. In the third
scenario, the partygoers told the truth that Peaches invited
them, and they had no reason to suspect that she was not
authorized to do so. The dissent contends that each scenario
is possible, and that “the officers did not have a way to rule
out either of the first two scenarios.” Id. at 15.

We have two responses. First, there is no evidence in the
record that suggests that the partygoers and Peaches cooked
up a plot to mislead the police, and the dissent points to none.
Instead, the dissent simply speculates, “[w]ho knows”
whether or how they might have coordinated? Id. at 14.
Certainly not the officers. They never—neither at the time of
the arrest nor during the subsequent litigation—pointed to a
circumstance tending to show that the partygoers and Peaches
were colluding.

Second, and more fundamentally, in suggesting that a
lack of information—a “who knows?” gap—could suffice to
support probable cause, the dissent advocates a position that
would impermissibly shift the burden of discerning probable
cause. Officers may not do what the dissent does—posit that
a person is up to no good and then ask whether there is clear
reason to rule out any theoretical wrongdoing. See Devenpeck
v. Alford, 543 U.S. 146, 152 (2004) (“Whether probable cause
exists depends upon the reasonable conclusion to be drawn
from the facts known to the arresting officer at the time of the
arrest.”); Adams, 407 U.S. at 148 (“Probable cause to arrest
depends ‘upon whether, at the moment the arrest was made
. . . the facts and circumstances within (the arresting officers’)
knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in
believing that the (suspect) had committed or was committing
an offense.’” (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
The probable cause requirement, even as flexible and
 8
contextual as it appropriately is, authorizes arrest only when
the facts and circumstances give officers reason to believe
that someone is violating or has violated the law.

The bare, unsupported possibility that an officer might
have disbelieved the partygoers when they said they had been
invited is not ground for arrest—nor for qualified immunity.
Contra Dissent 19. The dissent contends that an officer’s
doubts about a suspect’s credibility count as “information”
that can controvert evidence dissipating probable cause. Id. at
10, 20. We do not disagree with that proposition as a legal
matter. When officers actually doubt a suspect’s credibility,
and when those doubts fairly arise from their observations and
the information available to them, officers may take their
doubts into account when assessing whether the totality
circumstances support probable case. See, e.g., McComas v.
Brickley, 673 F.3d 722, 726-27 (7th Cir. 2012); Wright, 409
F.3d at 603. The officers in this case, however, did not
actually doubt that the partygoers were telling the truth when
they said Peaches invited them. In fact, the officers did not
think the partygoers’ credibility mattered at all. They did not
think it mattered because they believed—incorrectly and
unreasonably—that the partygoers’ state of mind was legally
irrelevant.

IV.

Our disagreement with the dissent comes down to our
case-specific assessment of the circumstantial evidence in the
record.

We found that an officer could not conclude—not even
reasonably, though mistakenly—that the partygoers had a
culpable state of mind. It is not surprising that the record,
consisting of what the officers took note of at the time, lacks
evidence of what the partygoers knew, or even what they
 9
ought to have known, about whether they had been
legitimately invited into the house. At the time of the arrest,
and even in this litigation, the defendants misunderstood the
clearly established elements of unlawful entry. They believed
(erroneously) that it did not matter what the partygoers knew
or did not know about their permission to be at the premises.
Once the owner told the officers he had not yet rented the
house to Peaches and he had not allowed the guests to attend a
party there, the officers believed they had all they needed.1

1
When opposing counsel asked Sergeant Suber at his
deposition if it mattered “whether or not [the partygoers] believed,
based upon what Peaches told them, that they had the right to be
there,” he answered, “Peaches nor the other individuals occupying
that location did not have the right to be there.” J.A. 48; see id. at
129 (“Q: And so what I’m trying to understand is why did you
reach that conclusion [that it was a lawful arrest] when you knew
that Peaches had given them permission to be there? [Suber]:
Because Peaches didn’t have permission to be there.”); see also id.
at 99 (deposition testimony of Defendant Officer Parker explaining
that Sergeant Suber decided to arrest everyone because the owner
had said that nobody had his permission to be in the house).

Even in their summary judgment papers, the defendants
continued to assert the irrelevance of the partygoers’ mindset. The
defendants acknowledged that “each of [the partygoers] admitted
that they were social guests,” but stressed that “this statement is not
material” because none of the plaintiffs owned the property and
liability turns on “whether MPD Officers reasonably believed that
the plaintiffs were not the owners and did not have a possessory
interest in the property.” J.A. 59 (Defs.’ Resp. to Pls.’ Statement of
Facts, ECF No. 30, Ex. 1 at 2). In their rehearing petition before
this court as well, the defendants suggest that it somehow was not
clearly established that the offense of unlawful entry includes a
state of mind requirement. See Pet. Reh’g En Banc 12 (contending
that the panel erred because it “found the law clearly established
 10
Of course, even though the defendant officers in this case
did not seek to determine whether the partygoers themselves
knew or should have known that they were not authorized to
be present at the house, if the information known to the
officers when they made the arrests nonetheless fairly
suggested that the partygoers were or should have been aware
that they were unwelcome, the arrests would have been
lawful. See Whren v. United States, 517 U.S. 806, 813
(1996); United States v. Bookhardt, 277 F.3d 558, 565 (D.C.
Cir. 2002); United States v. Joyner, 492 F.2d 655, 656 (D.C.
Cir. 1974) (per curiam) (“[A]n arrest will be upheld if
probable cause exists to support arrest for an offense that is
not denominated as the reason for the arrest by the arresting
officer.”). And if the facts in the record could at least
arguably give rise to probable cause, the defendants would be
entitled to qualified immunity. See Hunter, 502 U.S. at 227;
Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993).

The dissent thinks an officer in the defendants’ position
could reasonably believe there was probable cause. Dissent
14-15. For the reasons explained in our opinion, we disagree
that the record here supports probable cause, either actually or
arguably. That is the extent of our disagreement, no more, no
less. Our dispute—whether these particular defendants are
entitled to qualified immunity on the plaintiff’s Fourth
Amendment claim—is entirely “fact-bound,” City & Cty. of
San Francisco v. Sheehan, 135 S. Ct. 1765, 1779 (2015)
(Scalia, J., concurring in part and dissenting in part), and
therefore hardly deserves the dissent’s doomsaying. As our
nearly complete agreement with the dissent on the governing

‘that probable cause required some evidence that the Plaintiffs
knew or should have known that they were entering against the will
of the lawful owner’” (quoting Wesby, 765 F.3d at 27)). As
discussed in the court’s opinion and in the text, supra 5-6, that is a
misstatement of clearly established law.
 11
principles underscores, we did not invent or invert any law to
reach the result in this case. And the thinness of the record is
quite anomalous, as it stems from the officers’ legal error at
the scene. We accordingly concur in the denial of rehearing
en banc.
 KAVANAUGH, Circuit Judge, with whom Circuit Judges
HENDERSON, BROWN, and GRIFFITH join, dissenting from the
denial of rehearing en banc: In a series of recent qualified
immunity cases, the Supreme Court has repeatedly told the
courts of appeals that police officers may not be held liable
for damages unless the officers were “plainly incompetent” or
“knowingly violate[d]” clearly established law. Carroll v.
Carman, 135 S. Ct. 348, 350, slip op. at 4 (2014) (internal
quotation marks omitted). The Supreme Court “often corrects
lower courts when they wrongly subject individual officers to
liability.” City & County of San Francisco v. Sheehan, 135 S.
Ct. 1765, 1774 n.3, slip op. at 10 n.3 (2015). Indeed, in just
the past five years, the Supreme Court has issued 11 decisions
reversing federal courts of appeals in qualified immunity
cases, including five strongly worded summary reversals. See
Mullenix v. Luna, 136 S. Ct. 305 (2015) (summary reversal);
Taylor v. Barkes, 135 S. Ct. 2042 (2015) (summary reversal);
Sheehan, 135 S. Ct. 1765; Carroll, 135 S. Ct. 348 (summary
reversal); Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); Wood
v. Moss, 134 S. Ct. 2056 (2014); Stanton v. Sims, 134 S. Ct. 3
(2013) (summary reversal); Reichle v. Howards, 132 S. Ct.
2088 (2012); Ryburn v. Huff, 132 S. Ct. 987 (2012) (summary
reversal); Messerschmidt v. Millender, 132 S. Ct. 1235
(2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

In my view, the panel opinion in this case contravenes
those emphatic Supreme Court directives. Two D.C. police
officers have been held liable for a total of almost $1 million.
That equates to about 20 years of after-tax income for the
officers, not to mention the harm to their careers.1 For what?

1
As the Supreme Court has said: “Whatever contractual
obligations” the District of Columbia “may (or may not) have to
represent and indemnify the officers are not our concern. At a
minimum, these officers have a personal interest in the correctness
of the judgment below, which holds that they may have violated the
Constitution.” Sheehan, 135 S. Ct. at 1774 n.3, slip op. at 10 n.3.
 2
For arresting for trespassing a group of people who were
partying late at night with drugs and strippers in a vacant
house that the partiers did not own or rent. To be sure, the
partiers claimed that they had permission from a woman
named Peaches to use the vacant house. But the officers soon
learned that Peaches herself did not have permission to use
the house. And the officers reasonably could have thought
that the partiers probably knew as much. Therefore, the
officers reasonably could have concluded that there was
probable cause to arrest the partiers for trespassing. The
officers were not “plainly incompetent” and did not
“knowingly violate” clearly established law when they made
these arrests. The officers are entitled to qualified immunity.

The Supreme Court has reminded us that qualified
immunity is important “to society as a whole.” Sheehan, 135
S. Ct. at 1774 n.3, slip op. at 10 n.3 (internal quotation marks
omitted). That holds true in this case. The Attorney General
for the District of Columbia has filed a vigorous petition for
rehearing en banc. The Attorney General’s petition
convincingly explains how the panel opinion will negatively
affect the ability of D.C. police officers to make the on-the-
spot credibility judgments that are essential for officers to
perform their dangerous jobs and protect the public. I would
grant the Attorney General’s petition.

Responding to this dissent, the panel majority says that it
agrees with this dissent about the law and that our
disagreement with one another is simply about how the law
applies to the facts. But that is true in most qualified
immunity cases. At a high enough level of generality, the law
of qualified immunity is settled, as are the relevant Fourth
Amendment principles. But what has concerned the Supreme
Court in numerous cases is how lower courts apply the
general qualified immunity and Fourth Amendment principles
 3
to the facts of particular cases.2 That is my concern here as
well.

I

At about 1:00 a.m. on March 16, 2008, the District of
Columbia’s Metropolitan Police Department received a
complaint about loud music and possible illegal activity at a
house east of the Anacostia River between Benning Road and
East Capitol Street, a short distance northeast of RFK
Stadium. According to the caller, the house where the party
was taking place had been “vacant for several months.”
Metropolitan Police Department Arrest/Prosecution Report,
reprinted in Joint Appendix (“J.A.”) 73.

Police officers quickly responded to the scene. The
officers heard music coming from inside the house. After
knocking on the door and entering, the officers observed that
the house was sparsely furnished and “in disarray,” consistent
“with it being a vacant property.” Id. In the living room, they
saw a large group of people engaged in behavior consistent
“with activity being conducted in strip clubs for profit.” Id.
Several women were “dressed only in their bra and thong with

2
In similar en banc circumstances, another court of appeals
recently reconsidered a panel opinion about qualified immunity in a
false arrest case. In Garcia v. Jane & John Does 1-40, 779 F.3d 84
(2d Cir. 2015), Judge Calabresi and Judge Lynch, over the dissent
of Judge Livingston, originally denied the officers’ qualified
immunity motion. After the officers filed a strongly worded
petition for rehearing en banc, the three-judge panel unanimously
issued an amended opinion holding that the police officers were
entitled to qualified immunity. See id. at 87. Many of the issues in
that Second Circuit case resemble the issues in this case. I
respectfully suggest that similar re-examination of the original
panel opinion would have been warranted here.
 4
money hanging out” of “their garter belts.” Officer Khan
Interrogatory, J.A. 163. The officers smelled marijuana.
When the officers entered, the partiers initially scattered into
other rooms.

The officers talked to everyone present in the house. The
21 people who were there told the officers conflicting stories
about what they were doing on the property. Some said they
were celebrating a birthday party. Most said it was a bachelor
party. But the guest of honor was not identified to the
officers.

The people in the house also gave conflicting stories
about who had supposedly given them permission to use the
house. No one could identify the owner of the house. Several
people said that they had been invited by other people. Some
said that a woman known as “Peaches” or “Tasty” had given
the partiers permission to use the house. But Peaches was not
present at the house.

Notwithstanding the conflicting stories and suspicious
circumstances, the officers did not immediately arrest the
partiers for trespassing. Rather, the officers took time to
further investigate the situation. The officers contacted both
Peaches and the owner of the house. They reached Peaches
by phone. The officers thought that Peaches was evasive.
Peaches said that she had given the partiers permission to use
the house. But when the officers asked who in turn had given
Peaches authority to use the house, Peaches responded that
she was “possibly renting the house from the owner,” who
was “fixing the house up for her.” Wesby v. District of
Columbia, 841 F. Supp. 2d 20, 25-26 (D.D.C. 2012)
(Deposition of Sergeant Suber). When pressed by the
officers, Peaches finally admitted that she did not have
authority to use the house. She refused to come to the house
 5
because she said that she would be arrested. She hung up the
phone on the officers.

The officers then called the owner of the house, Mr.
Hughes. Mr. Hughes told the police officers that no one –
including Peaches – had authority to use the house.

After they had assessed the scene, talked to the partiers,
and gathered information from Peaches and Mr. Hughes, the
police officers arrested the people in the house for trespassing,
an offense known as “unlawful entry” under D.C. law.
Trespassing is a minor offense under D.C. law.3 Prosecutors
later decided not to pursue charges against the partiers.

After all of the charges arising out of the incident had
been dropped, many of the 21 people who had been arrested
turned around and sued the police officers and the District of
Columbia under Section 1983 and D.C. law. The plaintiffs
claimed that the officers had made the arrests without
probable cause. The officers countered that they had probable
cause to arrest the plaintiffs for trespassing. The officers also
asserted that, in any event, they were entitled to qualified
immunity for two distinct reasons. First, it was at least
reasonable for the officers to believe that they had probable
cause to arrest under these factual circumstances. And
second, the officers did not contravene any clearly established
law by making these arrests for trespassing.

On cross motions for summary judgment, the District
Court concluded that the officers did not have probable cause
to arrest and, moreover, were not entitled to qualified
immunity. The District Court granted summary judgment to

3
Under D.C. law, trespassing is punishable by a maximum jail
sentence of 180 days and a maximum fine of $1,000. D.C. Code
§ 22-3302.
 6
the plaintiffs. After a trial on damages, a jury awarded the
plaintiffs $680,000. Attorney’s fees brought the total award
to almost $1 million. The police officers and the District of
Columbia are jointly and severally liable for that total.4

The District of Columbia and the police officers appealed
to this Court. A panel of this Court affirmed the judgment of
the District Court. The panel opinion concluded that the
police officers did not have probable cause to arrest the
plaintiffs and were not entitled to qualified immunity. Judge
Brown dissented. The District of Columbia and the police

4
For purposes of Section 1983 liability, the District of
Columbia is considered a municipality. See People for the Ethical
Treatment of Animals v. Gittens, 396 F.3d 416, 425 (D.C. Cir.
2005). As a municipality, the District of Columbia “cannot be held
liable solely because it employs a tortfeasor – or, in other words, a
municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Singletary v. District of Columbia, 766 F.3d 66,
72 (D.C. Cir. 2014) (quoting Monell v. Department of Social
Services of the City of New York, 436 U.S. 658, 691 (1978))
(internal quotation marks omitted). The District of Columbia may
be held liable under Section 1983 only when the execution of a
government “policy or custom” inflicts an injury for which the
District of Columbia “as an entity is responsible under § 1983.” Id.
(quoting Monell, 436 U.S. at 694) (internal quotation marks
omitted).
In this case, the plaintiffs did not allege that a government
policy or custom led to the arrests. Because respondeat superior is
not a theory of liability in Section 1983 cases against
municipalities, the District of Columbia was therefore not liable for
the Section 1983 claims. The District of Columbia instead was
liable for the D.C. law claims. The damages award was not
apportioned between the Section 1983 and D.C. law claims. The
District of Columbia and the two officers are jointly and severally
liable for the full amount.
 7
officers sought rehearing en banc. I would grant en banc
review.

II

The police officers persuasively argue that they had
probable cause to arrest the partiers for trespassing. But
regardless of whether the officers had probable cause, they are
entitled to qualified immunity because they at least
reasonably could have believed that they had probable cause.
Could the officers have walked away from the vacant house
filled with partiers? Sure. Could they have broken up the
party and then left? No doubt. Indeed, in retrospect, that
might well have been a better decision. But did the officers
act in a “plainly incompetent” manner or “knowingly violate”
clearly established law by making these arrests for
trespassing? No.

To begin with, the probable cause standard itself gives
police officers substantial leeway when determining whether
to make an arrest. As the Supreme Court has explained,
probable cause is a “fluid concept” that turns on “factual and
practical considerations of everyday life on which reasonable
and prudent” persons, “not legal technicians, act.” Illinois v.
Gates, 462 U.S. 213, 231-32 (1983) (internal quotation marks
omitted). Probable cause is “not readily, or even usefully,
reduced to a neat set of legal rules.” Id. at 232. 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. As the
Supreme Court has emphasized: “Finely tuned standards such
as proof beyond a reasonable doubt or by a preponderance of
the evidence” have “no place in the [probable-cause]
decision.” Florida v. Harris, 133 S. Ct. 1050, 1055, slip op.
 8
at 5 (2013) (alteration in original) (internal quotation marks
omitted).

In damages suits against officers, the doctrine of qualified
immunity adds an extra dose of judicial deference to our
review of the officer’s probable cause determination. As a
general matter, qualified immunity “gives government
officials breathing room to make reasonable but mistaken
judgments” and “protects all but the plainly incompetent or
those who knowingly violate the law.” Carroll v. Carman,
135 S. Ct. 348, 350, slip op. at 4 (2014) (internal quotation
marks omitted). The “crucial question” is “whether the
official acted reasonably in the particular circumstances that
he or she faced.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023,
slip op. at 13 (2014).

In applying the qualified immunity doctrine to the issue
of probable cause to make arrests, the Supreme Court has said
that officers “who reasonably but mistakenly conclude that
probable cause is present are entitled to immunity.” Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (internal quotation marks
omitted); see also Wardlaw v. Pickett, 1 F.3d 1297, 1304
(D.C. Cir. 1993). In accord with that Supreme Court
precedent, most courts of appeals – including our Court –
have ruled that officers may not be held liable for damages for
allegedly wrongful arrests so long as they had “arguable
probable cause” to make the arrest. See, e.g., Moore v.
Hartman, 644 F.3d 415, 422 (D.C. Cir. 2011), vacated on
other grounds, 132 S. Ct. 2740 (2012); Cox v. Hainey, 391
F.3d 25, 33 (1st Cir. 2004); Garcia v. Jane & John Does 1-40,
779 F.3d 84, 92 (2d Cir. 2015); Club Retro, L.L.C. v. Hilton,
568 F.3d 181, 207 (5th Cir. 2009); Greene v. Barber, 310
F.3d 889, 898 n.2 (6th Cir. 2002); McComas v. Brickley, 673
F.3d 722, 725 (7th Cir. 2012); Ulrich v. Pope County, 715
F.3d 1054, 1059 (8th Cir. 2013); Blankenhorn v. City of
 9
Orange, 485 F.3d 463, 475 (9th Cir. 2007); Stonecipher v.
Valles, 759 F.3d 1134, 1141 (10th Cir. 2014); Morris v. Town
of Lexington Alabama, 748 F.3d 1316, 1324 (11th Cir. 2014).

Therefore, in suits alleging a lack of probable cause to
arrest, officers are not liable if they arguably had probable
cause – that is, if the officer reasonably could have believed
that there was probable cause to arrest.

As a result, the qualified immunity question in this case is
not whether the officers had probable cause to arrest the
partiers at the house. Rather, the question is whether the
officers reasonably could have believed that they had
probable cause to arrest for trespassing a group of people who
were having a party late at night with strippers and drugs in a
vacant house that none of the partiers owned or rented,
notwithstanding the partiers’ claims that they had permission
from a woman named Peaches to use the house.

The qualified immunity question in this case is readily
answered by a few basic principles of criminal law and
procedure. Under D.C. law, it is unlawful to enter private
property without permission from the owner or renter, or
without other lawful authority. See Ortberg v. United States,
81 A.3d 303, 306-07 (D.C. 2013). 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. See id. at 308-09.
 10
The only question in this case, then, is whether the
officers could reasonably disbelieve the partiers when the
partiers said that they thought they had permission to use the
house.

In a case like this where the actus reas is complete and
the sole issue is the defendant’s mens rea, police officers
often must make credibility assessments on the spot,
sometimes in difficult circumstances. In those situations, are
police officers always required to believe the statements of
the suspects – in this case, the partiers in the house? Of
course not. Yet the panel opinion seems to say yes, at least
for this kind of case. According to the panel opinion, “in the
absence of any conflicting information,” a police officer does
not have probable cause to arrest people for trespassing if
those people claim that they were invited by “someone with
apparent (if illusory) authority.” Wesby v. District of
Columbia, 765 F.3d 13, 21 (D.C. Cir. 2014). And under the
panel’s approach, even if a reasonable police officer could
have doubted the credibility of the people claiming to have
been invited to the house, those credibility doubts do not
count as “conflicting information.” See id.

The panel opinion’s approach is not and has never been
the law. When police officers confront a situation in which
people appear to be engaged in unlawful activity, the officers
often hear a variety of mens rea-related excuses. “The drugs
in my locker aren’t mine.” “I don’t know how the loaded gun
got under my seat.” “I didn’t realize the under-aged high
school kids in my basement had a keg.” “I wasn’t looking at
child pornography on my computer, I was hacked.” “I don’t
know how the stolen money got in my trunk.” “I didn’t see
the red light.” “I punched my girlfriend in self-defense.”
 11
But in the heat of the moment, police officers are entitled
to make reasonable credibility judgments and to disbelieve
protests of innocence from, for example, those holding a
smoking gun, or driving a car with a stash of drugs under the
seat, or partying late at night with strippers and drugs in a
vacant house without the owner or renter present. As Judge
Brown said, the law does not require officers “to credit the
statement of the intruders regarding their own purportedly
innocent mental state where the surrounding facts and
circumstances cast doubt on the veracity of such claims.”
Wesby, 765 F.3d at 36 (Brown, J., dissenting). And as the
Second Circuit recently stated: A police officer is required to
accept a suspect’s mens rea-related defense only if, among
other things, “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.” Garcia, 779
F.3d at 93.

Almost every court of appeals has recognized that
officers cannot be expected to definitively resolve difficult
mens rea questions in the few moments in which officers have
to decide whether to make an arrest. Consider the following
sample:

 “Once a police officer has a reasonable basis for
believing there is probable cause, he is not required to
explore and eliminate every theoretically plausible
claim of innocence before making an arrest.” Amobi
v. D.C. Department of Corrections, 755 F.3d 980, 990
(D.C. Cir. 2014) (internal quotation marks omitted).

 The “practical restraints on police in the field are
greater with respect to ascertaining intent and,
therefore, the latitude accorded to officers considering
 12
the probable cause issue in the context of mens rea
crimes must be correspondingly great.” Cox v.
Hainey, 391 F.3d 25, 34 (1st Cir. 2004).

 “It is up to the factfinder to determine whether a
defendant’s story holds water, not the arresting
officer. . . . Once officers possess facts sufficient to
establish probable cause, they are neither required nor
allowed to sit as prosecutor, judge or jury. Their
function is to apprehend those suspected of
wrongdoing, and not to finally determine guilt through
a weighing of the evidence.” Krause v. Bennett, 887
F.2d 362, 372 (2d Cir. 1989).

 “Absent a confession, the officer considering the
probable cause issue in the context of crime requiring
a mens rea on the part of the suspect will always be
required to rely on circumstantial evidence regarding
the state of his or her mind.” Paff v. Kaltenbach, 204
F.3d 425, 437 (3d Cir. 2000).

 “The probable cause inquiry looks to the totality of the
circumstances; the standard does not require that
officers correctly resolve conflicting evidence or that
their determinations of credibility, were, in retrospect,
accurate.” Wright v. City of Philadelphia, 409 F.3d
595, 603 (3d Cir. 2005).

 In “considering the totality of the circumstances,” a
defendant’s “innocent explanations for his odd
behavior cannot eliminate the suspicious facts from
the probable cause calculus.” Sennett v. United States,
667 F.3d 531, 536 (4th Cir. 2012) (internal quotation
marks omitted).
 13
 An investigator’s “failure to make a further
investigation into the suspect’s state of mind does not
constitute lack of probable cause if all objective
elements of a crime reasonably appear to have been
completed.” Brown v. Nationsbank Corp., 188 F.3d
579, 586 (5th Cir. 1999) (internal quotation marks
omitted).

 Police are “under no obligation to give any credence
to a suspect’s story . . . if the facts as initially
discovered provide probable cause.” Ahlers v.
Schebil, 188 F.3d 365, 371 (6th Cir. 1999) (internal
quotation marks omitted).

 “Many putative defendants protest their innocence,
and it is not the responsibility of law enforcement
officials to test such claims once probable cause has
been established.” Spiegel v. Cortese, 196 F.3d 717,
724 (7th Cir. 1999).

 “When an officer is faced with conflicting information
that cannot be immediately resolved,” the officer
“need not rely on an explanation given by the suspect”
and “may have arguable probable cause to arrest a
suspect.” Royster v. Nichols, 698 F.3d 681, 688 (8th
Cir. 2012) (internal quotation marks omitted).

 “Rarely will a suspect fail to proffer an innocent
explanation for his suspicious behavior. The test is
not whether the conduct under question is consistent
with innocent behavior; law enforcement officers do
not have to rule out the possibility of innocent
behavior.” Ramirez v. City of Buena Park, 560 F.3d
1012, 1024 (9th Cir. 2009) (internal quotation marks
omitted).
 14

 The police officers “were not required” to forgo
arresting the defendant “based on initially discovered
facts showing probable cause simply because” the
defendant “offered a different explanation.” Marx v.
Gumbinner, 905 F.2d 1503, 1507 n.6 (11th Cir. 1990).

Here, in the brief time in which the officers had to decide
whether to make arrests, they could not definitively resolve
the difficult question of the partiers’ mens rea. Mr. Hughes,
the owner of the house, told the police officers that no one
had authority to use the house. At the same time, Peaches
told the officers that she had given the partiers permission to
use the house. But there were holes in Peaches’s story.

Under these circumstances, a reasonable officer could
interpret the situation in at least three different ways. First,
even if Peaches “invited” the partiers to use the house, maybe
the partiers still knew that Peaches did not really have lawful
authority to use the vacant house. In other words, maybe the
partiers were not unwittingly duped by Peaches but instead
knew or suspected that Peaches was not renting the house and
did not have authority to invite the partiers there. Second,
maybe the partiers were lying when they said that Peaches
had given them permission to use the house, and maybe
Peaches then played along and supplied cover for her friends
when the officers reached her on the phone. (Did someone
from the party text Peaches first to give her a heads-up? Who
knows.) Third, maybe the partiers were telling the whole
truth and were unwittingly misled by Peaches into thinking
that she had authority over the house.

In the first two scenarios, a reasonable officer would have
probable cause to arrest the partiers for trespassing. In the
 15
third scenario, a reasonable officer would not have probable
cause to arrest.

But at the time of the arrests, the officers did not have a
way to rule out either of the first two scenarios. After all, a
police officer is required to accept a suspect’s mens rea-
related defense only if, among other things, “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.” Garcia, 779 F.3d at 93. In this case,
the officers had several reasons to doubt that the partiers were
telling the truth when they claimed that Peaches had given
them permission to use the house. The partiers were in a
vacant house late at night without the owner or renter present.
The partiers gave conflicting explanations for what they were
doing at the house, and about who had supposedly given them
permission to be there. The police officers also had several
reasons to doubt that Peaches was telling the truth. When the
officers contacted Peaches, she refused to come to the house
because she said she would be arrested, and she gave
conflicting accounts of her authority over the house.

Of course, maybe further investigation would ultimately
establish that the third scenario was in fact what had
happened. Maybe the partiers had been unwittingly misled by
Peaches into thinking that she had authority over the house.
But that was not the only reasonable interpretation of the
situation at the time of the arrests. And once “a police officer
has a reasonable basis for believing there is probable cause,
he is not required to explore and eliminate every theoretically
plausible claim of innocence before making an arrest.”
Amobi, 755 F.3d at 990 (internal quotation marks omitted).
 16
In short, the officers were required to make an on-the-
spot credibility determination in a situation far removed from
the serenity and unhurried decisionmaking of an appellate
judge’s chambers. Under the circumstances, it was entirely
reasonable for the officers to have doubts about the partiers’
story and to conclude that there was probable cause to arrest
the partiers for trespassing. The police officers are entitled to
qualified immunity.5

III

The police officers are also entitled to qualified immunity
for a second, independent reason. At the time the officers
made the arrests here, the arrests violated no clearly
established statutory or constitutional right. Any such right
was created by the panel opinion in this case – years after the
officers made the arrests.

The Supreme Court has stated many times that officers
are entitled to qualified immunity unless a plaintiff can show
that “the official violated a statutory or constitutional right
that was clearly established at the time of the challenged
5
Qualified immunity examines whether police officers’
actions are “objectively reasonable,” not whether police officers
subjectively believe that their actions are reasonable. Moore, 644
F.3d at 423 n.7 (emphasis added) (quoting Wardlaw, 1 F.3d at
1305) (internal quotation marks omitted). The District Court’s
opinion noted that a few of the police officers at the scene
“erroneously believed that the question of whether Plaintiffs had
been invited onto the property was irrelevant.” Wesby v. District of
Columbia, 841 F. Supp. 2d 20, 38 n.15 (D.D.C. 2012). The panel
majority’s concurrence in the denial of rehearing en banc similarly
highlights the officers’ subjective beliefs. Concurrence 3, 8-9 &
n.1. But because qualified immunity is an objective inquiry, an
officer’s subjective belief about the law is not relevant to the
qualified immunity issue.
 17
conduct.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023, slip
op. at 12 (2014) (internal quotation marks omitted); see also
Taylor v. Barkes, 135 S. Ct. 2042, 2044, slip op. at 3 (2015)
(summary reversal); City & County of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1774, slip op. at 10 (2015); Carroll
v. Carman, 135 S. Ct. 348, 350, slip op. at 3 (2014) (summary
reversal); Wood v. Moss, 134 S. Ct. 2056, 2061, slip op. at 2
(2014); Stanton v. Sims, 134 S. Ct. 3, 4, slip op. at 3 (2013)
(summary reversal); Reichle v. Howards, 132 S. Ct. 2088,
2093, slip op. at 5 (2012); Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080, slip op. at 3 (2011).

“To be clearly established, a right must be sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.” Taylor, 135 S. Ct. at
2044, slip op. at 4 (internal quotation marks omitted). The
Supreme Court has emphasized that courts must “define the
clearly established right at issue on the basis of the specific
context of the case.” Tolan v. Cotton, 134 S. Ct. 1861, 1866,
slip op. at 7 (2014) (quoting Saucier v. Katz, 533 U.S. 194,
201 (2001)) (internal quotation marks omitted). The Court
has “repeatedly told courts . . . not to define clearly
established law at a high level of generality.” al-Kidd, 131 S.
Ct. at 2084, slip op. at 10. “Qualified immunity is no
immunity at all if clearly established law can simply be
defined” at a high level of generality. Sheehan, 135 S. Ct. at
1776, slip op. at 13 (internal quotation marks omitted).

That longstanding rule is one manifestation of the law’s
general concern about retroactive punishment or liability. See
generally Landgraf v. USI Film Products, 511 U.S. 244, 265-
67 (1994). It would be unfair for a court to impose monetary
liability on a police officer by creating a new legal rule and
then applying that new rule retroactively to punish the
officer’s conduct. Without “fair notice, an officer is entitled
 18
to qualified immunity.” Sheehan, 135 S. Ct. at 1777, slip op.
at 15 (internal quotation marks omitted). Because “the focus
is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct. If the law at that time did
not clearly establish that the officer’s conduct would violate
the Constitution, the officer should not be subject to liability
or, indeed, even the burdens of litigation.” Brosseau v.
Haugen, 543 U.S. 194, 198 (2004); see also Taylor, 135 S. Ct.
at 2045, slip op. at 5 (clearly established precedent must put
officials “on notice of any possible constitutional violation”);
Plumhoff, 134 S. Ct. at 2023, slip op. at 13 (“We did not
consider later decided cases” when determining whether an
officer violated clearly established law because those cases
“‘could not have given fair notice’” to the officer.).

At the time of the arrests here, no case had said that
officers are required to believe the statements of suspected
trespassers who claim that they have permission to be on the
property. On the contrary, as explained above, it was and is
settled law that officers do not automatically have to believe a
suspect’s excuses when the officers catch the suspect in the
midst of an activity that otherwise appears to be illegal. And
in the trespassing context in particular, the most relevant D.C.
trespassing cases supported arrest in this kind of case. See
Artisst v. United States, 554 A.2d 327, 330 n.1 (D.C. 1989);
McGloin v. United States, 232 A.2d 90, 91 (D.C. 1967).

In Artisst v. United States, for example, the defendant
argued that the evidence was not sufficient for a jury to
convict him for trespassing in a Georgetown University dorm.
554 A.2d at 329. Artisst claimed that he had entered the
building to buy soccer equipment from a dorm resident and
that he therefore lacked the necessary intent to commit
unlawful entry. Id. The D.C. Court of Appeals upheld the
 19
conviction, finding that a jury could disbelieve Artisst’s
explanation. See id. at 330 n.1. But under the panel opinion
here, the police presumably could not even have arrested
Artisst, much less a jury have convicted him.

Similarly, in McGloin v. United States, the defendant
challenged his conviction for trespassing in an apartment
building. 232 A.2d at 90. McGloin told the arresting officer
that he had entered the building to look for his cat. Id.
McGloin later told the same officer that he had entered the
building to look for a friend. Id. The D.C. Court of Appeals
upheld McGloin’s conviction, noting that although “one who
enters for a good purpose and with a bona fide belief of his
right to enter is not guilty” of trespassing, this “is not such a
case.” Id. at 91. But again, under the panel opinion here, the
police presumably could not even have arrested McGloin,
much less a jury have convicted him.

The panel opinion sweeps that D.C. Court of Appeals
case law under the rug. The panel opinion does not analyze
Artisst, and it distinguishes McGloin as “merely” recognizing
that under certain circumstances, it is “reasonable to infer an
interloper’s intent to enter against the will of the owner.”
Wesby v. District of Columbia, 765 F.3d 13, 22 (D.C. Cir.
2014).

But the D.C. Court of Appeals case law is on point. In
my opinion, that case law clearly permits police officers to
arrest a person for trespassing even when that person claims
to have the right to be on the property, if a reasonable officer
could disbelieve the suspected trespasser. If juries in
trespassing cases can refuse to credit defendants’ explanations
for their unlawful presence in buildings, police officers surely
can do the same. After all, the standard of proof for
convictions is beyond a reasonable doubt, but the standard for
 20
an arrest is the far lesser showing of probable cause. See
Florida v. Harris, 133 S. Ct. 1050, 1055, slip op. at 5 (2013).

But even apart from those D.C. Court of Appeals
decisions, one thing is crystal clear: No decision prior to the
panel opinion here had prohibited arrest under D.C. law in
these circumstances. This should have been a fairly easy case
for qualified immunity. Instead, the panel opinion did what
the Supreme Court has repeatedly told us not to do: The
panel opinion created a new rule and then applied that new
rule retroactively against the police officers. The panel
opinion held that “in the absence of any conflicting
information,” officers do not have probable cause to arrest
people for trespassing if those people claim that they were
invited by “someone with apparent (if illusory) authority.”
Wesby, 765 F.3d at 21. On top of that, the panel opinion
added a dubious gloss to its novel rule: Even if a reasonable
police officer could have doubted the credibility of the
trespassers who claimed to be invitees, those credibility
doubts do not count as “conflicting information.” What case
had ever articulated such a counterintuitive rule? Crickets.

Whatever the merits of the panel opinion’s new rule –
and I think it is divorced from the real world that police
officers face on a regular basis – it is still a new rule. And as
the Supreme Court has shouted from its First Street rooftop
for several years now, qualified immunity protects officers
from personal liability for violating rules that did not exist at
the time of the officers’ actions. See, e.g., Sheehan, 135 S. Ct.
at 1777, slip op. at 15; Plumhoff, 134 S. Ct. at 2023, slip op. at
13-14; Stanton, 134 S. Ct. at 7, slip op. at 8.6 The police

6
To be sure, “in an obvious case,” general constitutional
principles “can clearly establish the answer, even without a body of
relevant case law.” Brosseau, 543 U.S. at 199 (internal quotation
marks omitted). For example, the Supreme Court concluded that
 21
officers in this case did not violate clearly established law
when they arrested the partiers. The officers are entitled to
qualified immunity.7

handcuffing a prison inmate to a hitching post for seven hours in
the sun and without water was an “obvious” violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment. Hope
v. Pelzer, 536 U.S. 730, 738, 741 (2002). But the case before us
now is hardly an “obvious” case of unconstitutionality. Arresting
partiers late at night in a vacant house for trespassing when police
officers could reasonably doubt that the partiers had authority to use
the house is far from an “obvious” violation of constitutional rights
by police officers.
7
The plaintiffs brought suit against the police officers not only
under Section 1983 but also under D.C. law. Under D.C. law, a
police officer is not liable for the tort of false arrest if the police
officer had probable cause to make the arrest, or “if the officer can
demonstrate that (1) he or she believed, in good faith, that his [or
her] conduct was lawful, and (2) this belief was reasonable.”
Bradshaw v. District of Columbia, 43 A.3d 318, 323 (D.C. 2012)
(alteration in original) (internal quotation marks omitted). Under
D.C. law, then, a police officer is entitled to immunity from a false
arrest suit if the officer both (i) reasonably could have believed that
there was probable cause to arrest and (ii) subjectively believed in
good faith that there was probable cause to arrest. As the D.C.
Court of Appeals has held, that “standard resembles the section
1983 probable cause and qualified immunity standards,” with “the
added clear articulation of the requirement of good faith.” District
of Columbia v. Minor, 740 A.2d 523, 531 (D.C. 1999).
This opinion has analyzed the objective aspect of the standard.
As to the subjective aspect, the two defendant police officers in this
case, Officers Parker and Campanale, believed in good faith that
they had probable cause to make the arrests because the officers
were unable to definitively determine if the partiers were telling the
truth when they claimed to have permission to use the house.
Officer Parker indicated that the officers made the arrests because
“one person said” that the partiers “didn’t have the right” to use the
 22
***

The qualified immunity doctrine affords police officers
room to make reasonable judgments about whether they have
probable cause to make arrests. The Supreme Court has
emphasized that the doctrine protects all but the plainly
incompetent or those who knowingly violate clearly
established law. The officers in this case were not plainly
incompetent, nor did they knowingly violate clearly
established law. Anything but. Even if the officers ultimately
were wrong in concluding that they had probable cause (and I
do not think they were wrong), it was at least reasonable for
the officers to believe that they had probable cause under the
circumstances and applicable law. They should not be subject
to $1 million in damages and fees for their on-the-spot
decision to make these trespassing arrests. To be sure, I do
not dismiss the irritation and anguish, as well as the
reputational and economic harm, that can come from being
arrested. Police officers should never lightly take that step,
and the courts should not hesitate to impose liability when
officers act unreasonably in light of clearly established law.
But that is not what happened here, not by a long shot. I
respectfully dissent from this Court’s decision not to rehear
this case en banc.

house, and “one person said” that the partiers “did have the right”
to use the house. Deposition of Officer Parker, J.A. 99. Officer
Campanale similarly stated that the officers arrested the partiers
because “[n]obody could determine who was supposed to be inside
the residence,” and because the partiers were “present inside of a
location that” the partiers did “not have permission to be in.”
Deposition of Officer Campanale, J.A. 124.