Doe v. Metropolitan Police Department

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2005 Decided April 25, 2006

No. 04-7114

JOHN DOE ET AL.,
APPELLANTS

v.

METROPOLITAN POLICE DEPARTMENT
OF THE DISTRICT OF COLUMBIA ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 03cv02379)

Damon W.D. Wright argued the cause for the appellant.
Carol E. Bruce was on brief. Neal Goldfarb entered an
appearance.
Mary L. Wilson, Assistant Attorney General, District of
Columbia, argued the cause for the appellees. Robert J.
Spagnoletti, Attorney General, and Edward E. Schwab, Deputy
Attorney General, District of Columbia, were on brief.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
 2

Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
Metropolitan Police Department (MPD) of the District of
Columbia (District) arrested the appellants, John Doe and Jane
Doe I, II, III and IV, for underage possession and/or
consumption of alcoholic beverages. The Does appeal the
district court’s dismissal of their consequent constitutional
claims brought against the MPD and various D.C. officials.
They argue that, because their arrests and detentions were based
on their violation of a civil statute, probable cause to believe a
crime had been committed did not exist; accordingly, the MPD’s
actions violated their Fourth Amendment rights. Because the
version of the underage possession/consumption law in effect
when John Doe was arrested was not unambiguously a civil
offense, we affirm the district court’s dismissal albeit on a
different ground. The version of the law under which the four
Jane Does were arrested, however, described an unambiguously
civil offense and we therefore reverse the district court’s
dismissal of their claims and remand those claims for further
proceedings.
I.
A. Factual Background
Between September 2000 and October 2003, MPD officers
arrested each of the five Does, all under 21 years of age at the
time of arrest, for allegedly violating the District’s law
prohibiting underage possession and/or consumption of
alcoholic beverages.1 In September 2000 John Doe was walking
down H Street N.W. carrying a package of closed containers of

1
The statute changed from 2000 to 2003, as we discuss infra.
 3

beer.2 He was approached by a uniformed MPD officer who
placed him under arrest. The officer took him to the police
station where he was held for seven hours. Before being
released, he was issued a citation to appear in court to answer a
single charge of violating the underage possession law, D.C.
Code § 25-130.3 The MPD arrested the four Jane Does between
October 9 and October 11, 2003, pursuant to D.C. Code § 25-
1002(a), the 2001 version of the underage possession and/or
consumption law.4 Jane Doe I was arrested at a pub after
undercover MPD officers were told she was consuming an
alcoholic beverage belonging to another pub patron. The
officers removed her from the pub, arrested and handcuffed her,
and transported her to the police station. She was held for more
than three hours, issued a citation for underage consumption of
alcohol and released. MPD officers arrested the other three Jane
Does while they were walking together down Wisconsin Avenue
N.W. carrying paper bags of closed containers of alcoholic
beverages. The three were arrested, their belongings were
searched and they were taken to the police station. Each was
held for more than three hours and, before being released, each
was issued a citation for underage possession of alcohol.

2
We base the background facts on the allegations of the complaint.
See Wagener et al. v. SBC Pension Benefit Plan, 407 F.3d 395, 401
(D.C. Cir. 2005) (on review of dismissal, we “accept[] the factual
allegations made in the complaint as true and giv[e] plaintiffs the
benefit of all inferences that can reasonably be drawn from their
allegations”).
3
John Doe was arrested under the 1997 version of the law. See
note 9 infra for text.
4
See note 10 infra for text.
 4

In November 2003, the five Does filed a six-count
complaint, individually and on behalf of a class of similarly
situated persons,5 against the MPD, the D.C. Office of the
Attorney General, Mayor Anthony Williams and D.C.
Corporation Counsel Robert Spagnoletti in their official
capacities only, Chief of Police Charles H. Ramsey and
Lieutenant Patrick Burke in their individual and official
capacities, and an unspecified number of unidentified arresting
officers in their individual and official capacities (collectively
the District). They alleged the District’s actions were
unconstitutional under both the Fourth and Fifth Amendments
to the United States Constitution and they sought equitable relief
and money damages under 42 U.S.C. § 1983. The Does claimed
that an arrest made under D.C.’s underage
possession/consumption law was unlawful because the law set
forth a civil, not criminal, offense; they were therefore arrested
without probable cause in violation of the Fourth Amendment.6
The Does asserted federal question jurisdiction under 28 U.S.C.
§§ 1331 and 1343 and supplemental jurisdiction over various
common law tort claims under 28 U.S.C. § 1367.7 The Does
also sought a temporary restraining order (TRO) and preliminary
injunctive relief to prohibit the MPD from making any arrest in
the future under the underage possession/consumption law.

5
The district court dismissed the action before the plaintiffs moved
for class certification. See John Doe v. District of Columbia, No. 03-
02379, at 2 (D.D.C. Jan. 28, 2004).
6
The Does do not argue their Fifth Amendment claim before us.
7
The tort claims included false imprisonment, false arrest,
negligence, assault and battery, intentional infliction of emotional
distress and malicious prosecution. See Compl. ¶¶ 152–82.
 5

The District opposed the TRO petition, arguing that the
district court lacked jurisdiction based on our decision in
Barwood, Inc. v. District of Columbia, 202 F.3d 290 (D.C. Cir.
2000), where we held that an arrest in violation of state law does
not in and of itself implicate the Fourth Amendment. We
declared that “[m]ere inconsistency with state, or even federal,
law will not suffice to create a Fourth Amendment cause of
action.” Barwood, 202 F.3d at 294. The Barwood holding, the
District claimed, meant that the district court was without
subject-matter jurisdiction because an arrest in violation of state
law failed to allege a constitutional claim. Mem. in Opp’n to
Pl.’s Mot. for TRO at 2–4 (Record Document 5).
On January 28, 2004, the district court dismissed the
complaint under Federal Rule of Civil Procedure 12(b)(1),
concluding that “[f]or a Fourth Amendment violation to arise,
the arrest must violate the Fourth Amendment of its own accord,
for some reason other than the mere fact that the arrest was
unauthorized under state law.” John Doe v. District of
Columbia, No. 03-2379, at 6 (D.D.C. Jan. 28, 2004). Because
Barwood held that an arrest unauthorized under state law does
not constitute a Fourth Amendment violation, the Does’ “Fourth
Amendment claims do not form a basis on which the Court can
exercise jurisdiction over Plaintiffs’ suit.” Id. The Does timely
appealed.
B. Statutory Background
In 1984, in response to federal legislation reducing
transportation funding to any state that did not raise its legal
drinking age to 21, see 23 U.S.C. § 158, the Council of the
District of Columbia (D.C. Council) enacted a statute making it
unlawful for any person under 21 to consume alcohol or for
anyone to sell alcohol to any person under 21. Any underage
person who misrepresented his age in order to purchase alcohol
 6

was guilty of a misdemeanor, subject to a $25 fine or
imprisonment for up to 10 days in the event of non-payment.
D.C. Code § 25-130 (1991). In 1994 the Council amended
section 25-130 to prohibit anyone under 21 years of age from
possessing, purchasing or consuming alcoholic beverages. It
also added a revocation of driving privileges penalty for
violation of the law. D.C. Code § 25-130 (1995) (1994 law).
The 1994 law deleted the misdemeanor offense of false
representation of age; instead, it incorporated by cross-reference
section 25-132, the catch-all provision of the District’s Alcohol
Beverage Control Act (ABC Act), which provided for
imprisonment of up to one year for any violation thereof. See
D.C. Code § 25-831 (2005) (formerly D.C. Code § 25-132
(1981)).
The following year, in District of Columbia v. Morrissey,
668 A.2d 792 (D.C. 1995), the D.C. Court of Appeals construed
a violation of the 1994 law to constitute a misdemeanor because
of its reference to the residual misdemeanor penalty in section
25-132. In dictum,8 the writing judge noted that “[i]f the
Council did not intend to make the conduct with which
Morrissey has been charged a crime subject to trial by jury and
punishable by, inter alia, a year in prison, then clarifying
legislation should be enacted. Rewriting the statute to make it
more humane transcends the judicial function.” Morrissey, 668
A.2d at 801.

8
The writing judge included the dictum in a separate section at the
end of the opinion entitled “Judge Schwelb’s Views.” Morrissey, 668
A.2d at 800.
 7

In 1997, the D.C. Council again amended section 25-130.
See D.C. Code § 25-130(a) (1997 law).9 The 1997 law no
longer cross-referenced section 25-132 and instead added
specific penalties for statutory violations, including a “civil”
fine, “as an alternative sanction for any infraction.” D.C. Code
§ 25-130(b-2) (emphasis added). The Council included a

9
The relevant text of the 1997 law is as follows:
§ 25-130. Purchase, possession, or consumption by
persons under 21; misrepresentation of age; penalties.
(a) No person who is under 21 years of age shall
purchase, attempt to purchase, possess, or drink any
alcoholic beverage in the District . . . .
(b) No person shall falsely represent his or her age, or
possess or present as proof of age an identification
document which is any way fraudulent, for the
purpose of procuring an alcoholic beverage in the
District.
(b-1) Any person under 21 years of age who falsely
represents his or her age for the purpose of procuring
any alcoholic beverage shall be deemed guilty of a
misdemeanor and be fined for each offense not more
than $300, and in default in the payment shall be
imprisoned not exceeding 30 days.
(b-2) A civil fine may be imposed as an alternative
sanction for any infraction of this section . . . .
(c) In addition to the penalties provided in
subsections (b-1) and (b-2) of this section, any person
who violates any provision of this section shall be
subject to the following additional penalties:
[(1)–(3): setting out revocation of driving privilege
penalties].
 8

criminal penalty for misrepresenting one’s age in order to
purchase alcohol; anyone under 21 who did so was guilty of a
misdemeanor and subject to a $300 fine or imprisonment not to
exceed 30 days for non-payment. See D.C. Code § 25-130(b-1).
Despite the deletion of the reference to section 25-132 and
notwithstanding the alternative civil fine sanction, the District
continued to follow Morrissey, prosecuting underage possession
violators criminally as it had under the 1994 law. As noted, the
1997 law was in effect when John Doe was arrested in
September 2000.
In October 2000, Brett Cass, who had been convicted of
underage possession of alcohol under the 1997 law and
sentenced to probation, challenged his conviction, claiming the
statute prescribed only a civil penalty for underage possession.
In a decision issued three years later, the D.C. Court of Appeals
found the 1997 law’s criminal sanction inapplicable to underage
possession and therefore concluded that a violation of subsection
(a) of section 25-130 constituted a civil offense. Cass v. District
of Columbia, 829 A.2d 480 (D.C. 2003). The court based its
decision on two points of statutory interpretation and one point
drawn from legislative history. First, it construed the
misdemeanor provision set forth in section 25-130(b-1) to apply,
in its own words, only to falsely representing one’s age for the
purpose of purchasing alcoholic beverages. Second, it
considered the misdemeanor provision of section 25-132, the
catch-all penalty statute no longer cross-referenced in section
25-130 but nonetheless applicable by its own terms to any
violation of the ABC Act “for which no specific penalty is
provided,” inapplicable to underage possession because the 1997
law did provide specific penalties, to wit: the civil fine included
in section 25-130(b-2) and the revocation of driving privileges
included in section 25-130(c). Underage possession of alcohol,
the court concluded, was punishable by civil fine only, with the
 9

“additional” revocation of driving privileges sanction. Id. at
485. The court also found from the legislative history the fact
that the Council “stripped the basis for the Morrissey holding
from the statute and replaced it with lesser penalties lends strong
support to our statutory analysis.” Id. at 488. Accordingly, it
reversed Cass’s conviction.
Before the Cass decision, but after Cass brought his lawsuit,
the District amended section 25-130 yet again. See D.C. Code
§ 25-1002 (2001) (2001 law).10 The 2001 law had been enacted
10
The relevant text of the 2001 law is as follows:
§ 25-1002. Purchase, possession, or consumption by
person under 21; misrepresentation of age; penalties.
(a) No person who is under 21 years of age shall
purchase, attempt to purchase, possess, or drink an
alcoholic beverage in the District . . . .
(b)(1) No person shall falsely represent his or her age,
or possess or present as proof of age an identification
document which is in any way fraudulent, for the
purpose of purchasing, possessing, or drinking an
alcoholic beverage in the District.
(2) No person shall falsely represent his or her age, or
possess or present as proof of age an identification
document which is in any way fraudulent, for the
purpose of purchasing, possessing, or drinking an
alcoholic beverage in the District.
(3) For the purpose of determining valid
representation of age, each person shall be required to
present to the establishment owner or representative
at least one form of valid identification, which shall
have been issued by an agency of government (local,
state, federal, or foreign) and shall contain the name,
date of birth, signature, and photograph of the
 10

individual.
(c) Any person under 21 years of age who falsely
represents his or her age for the purpose of
purchasing, possessing or drinking an alcoholic
beverage shall be deemed guilty of a misdemeanor
and, upon conviction, shall be fined for each offense
not more than $300; provided, that in default of the
payment of the fine, the person shall be imprisoned
for a period not exceeding 30 days.
(d) In addition to the penalties provided in subsection
(c) of this section, any person who violates any
provision of this section shall be subject to the
following penalties:
[(1)–(3): setting out revocation of driving privileges
penalties].

(e)(1) As an alternative sanction to the misdemeanor
penalties provided in subsection (c) of this section,
a person who violates subsection (a) or (b) of this
section shall be subject to the following civil
penalties:

(A) upon the first violation, a penalty of $300;

(B) upon the second violation, a penalty of $600; and

(C) upon the third and subsequent violations, a
penalty of $1,000 and the suspension of his or her
driving privileges in the District for one year.

(e)(2) ABRA inspectors or officers of the
Metropolitan Police Department may enforce the
provisions of this subsection by issuing a notice of
civil infraction for a violation of subsections (a) or
 11

by the time the Cass opinion issued but the court in Cass made
clear that its opinion did not decide any issue under the statute
as amended, that is, under the 2001 law. See Cass, 829 A.2d at
481 n.1. The 2001 law retained the “in addition to” language of
subsection (d), referring to revocation of driving privileges. The
2001 law also did not refer to section 25-132, the ABC Act
misdemeanor penalty provision. It added language stating that
anyone who violated subsection (a), the subsection prohibiting
underage possession and/or consumption, was subject to “civil
penalties” as an “alternative sanction to the misdemeanor
penalties” provided in subsection (c) for misrepresenting one’s
age. Compare § 25-130(b-2) (1997) with § 25-1002(e-1) (2001).
As noted, the 2001 law was in effect when Jane Does I through
IV were arrested in October 2003.11
II.
A. Jurisdiction
We review de novo the dismissal of a complaint for lack of
subject matter jurisdiction. Empagran S.A. v. F. Hoffman-
LaRoche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003). The district
court’s 12(b)(1) dismissal relied on our holding in Barwood,
supra. There, several suburban taxicab companies and their
drivers sought injunctive relief from a “reciprocity regulation”
promulgated by the D.C. Taxicab Commission that restricted the
circumstances under which suburban taxicabs could transport
District passengers and, most relevant here, subjected any

(b) of this section in accordance with Chapter 18 of
Title 2. A violation of this subsection shall be
adjudicated under Chapter 18 of Title 2.
(Emphases added.)
11
The statute was amended yet again in 2004. See D.C. Code §
25-1002 (2004).
 12

violator to criminal sanction.12 The Barwood plaintiffs asserted
federal question jurisdiction by arguing, first, that any alteration
in the reciprocity agreements that existed between suburban
taxicab companies and their District counterparts as to when
suburban taxicabs could operate in the District and vice-versa
was exclusively within the mayor’s power and therefore beyond
the Commission’s authority; accordingly, any arrest made
pursuant to the ultra vires regulation violated the Fourth
Amendment. No probable cause could exist, the plaintiffs
argued, if the law making the conduct criminal was itself
invalid. We agreed that their argument had “an initial
plausibility: if an arrest without probable cause violates the
Fourth Amendment, then surely one for which no cause could
possibly exist must do so.” Barwood, 202 F.3d at 294 (emphasis
in original). We concluded, however, that the argument proved
too much and, if accepted, would transform “[e]very arrest
claimed to violate state law” into a cause of action under federal
law even if the plaintiff’s challenge rested “on state law theories
having no connection whatever with the policies underlying the
Fourth Amendment. . . . Mere inconsistency with state, or even
federal, law will not suffice to create a Fourth Amendment cause
of action (unless, of course, the inconsistency is with the Fourth
Amendment itself).” Id. Because there were “no allegations of
federal constitutional violations independent of the purported
violations of District of Columbia law,” we vacated the

12
The District claimed that the authority to arrest a violator of the
reciprocity regulation came from the District’s General License Law,
providing that “any person violating . . . any regulation made by the
Council under the authority of this chapter shall upon conviction be
fined not more than $300 or imprisoned for not more than 90 days.”
D.C. Code. § 47-2846; Barwood, Inc. v. District of Columbia, No. 98-
1901, at 6 (D.D.C. Feb. 16, 1999).
 13

preliminary injunction and remanded with instructions to
dismiss the complaint. Id. at 292.
The proper disposition of a complaint like the Barwood
complaint—and the one we ultimately followed in that case,
notwithstanding initially using 12(b)(1) language13—is not a
dismissal based on lack of jurisdiction inasmuch as section 1983
itself provides the basis for federal question jurisdiction under
42 U.S.C. § 1331 and the court must assume jurisdiction before
deciding whether a cause of action exists. See Bell v. Hood, 327
U.S. 678, 682 (1946) (“[T]he court must assume jurisdiction to
decide whether the allegations state a cause of action on which
the court can grant relief . . . . [T]he failure to state a proper
cause of action calls for a judgment on the merits and not for a
dismissal for want of jurisdiction. Whether the complaint states
a cause of action on which relief could be granted is a question
of law and just as issues of fact it must be decided after and not
before the court has assumed jurisdiction over the
controversy.”). Instead the complaint should be dismissed for
failure to state a claim. See Barwood, 202 F.3d at 294 (“[M]ere
inconsistency with state, or even federal, law will not suffice to
create a Fourth Amendment cause of action.”) (emphasis
added).14 If a claim brought under 42 U.S.C. § 1983 does not
13
See Barwood, 202 F.3d at 292 (“Because there are no allegations
of federal constitutional violations independent of the purported
violations of District of Columbia law (or at any rate no such
allegations for which plaintiffs have standing), there is no subject
matter jurisdiction.”) (emphasis added).

14
Although the court in Barwood assumed that it had jurisdiction
to decide whether a constitutional claim had been alleged, its wording
was less than clear. See supra note 13. Because of the ambiguity, the
district court mistakenly assumed that the Barwood court had held that
it lacked jurisdiction. See Doe v. District of Columbia, No. 03-2379,
 14

state a constitutional claim, it is subject to dismissal under Rule
12(b)(6), not Rule 12(b)(1). See Fraternal Order of Police
Dep’t of Corr. Labor Comm. v. Anthony A. Williams, 375 F.3d
1141, 1143–44 (D.C. Cir. 2004) (district court erred in granting
motion to dismiss § 1983 claim for lack of subject matter
jurisdiction under Rule 12(b)(1) because appellant “sought
recovery directly under the Constitution or laws of the United
States” and such claim could be dismissed under Rule 12(b)(1)
only if it met “wholly insubstantial or frivolous” standard
described in Best v. Kelley, 39 F.3d 328, 330 (D.C. Cir. 1994));
see also Albright v. Oliver, 510 U.S. 266, 271 (1994) (affirming
dismissal of § 1983 claim under Rule 12(b)(6) because
malicious prosecution claim not cognizable under due process
clause).
In Barwood, whether or not a suburban taxicab driver could
be arrested for violating the criminal reciprocity regulation
depended on the regulation’s validity and its validity depended
on whether or not the regulation had been properly adopted—an
issue of state law that no law enforcement officer could be
expected to resolve. Accordingly, the invalid enactment claim
was insufficient to state a cause of action under the Constitution.
By the same token, if an arrest under a federal criminal statute
were similarly challenged on the ground that it had been
invalidly enacted, a constitutional claim would not lie. If the
underlying statute—federal or state—were plainly civil,
however, Barwood would be inapplicable and a challenge to an
arrest thereunder would state a Fourth Amendment cause of
action.
Barwood’s relevance here, therefore, turns on whether the
relevant underage possession and/or consumption law—both the
1997 and the 2001 versions—unambiguously made underage

at 6 (D.D.C. Jan 28, 2004).
 15

possession or consumption a civil offense. If it did, the Does are
correct in maintaining that Barwood is inapplicable. If,
however, the law’s civil nature was unclear, the District
correctly asserts that Barwood would preclude the Does’ cause
of action because it would hinge on a state law issue, that is,
whether the law created a civil or criminal offense. With these
principles in mind, we turn first to John Doe’s arrest which, as
noted earlier, was based on the 1997 law.
B. John Doe
Given that John Doe’s arrest took place almost three years
before the Cass decision, which interpreted the 1997 law to
create a civil offense, the Does cannot argue that the 1997 law
was “by definition” civil at the time of John Doe’s arrest.15 As
the court in Cass noted, the 1997 law’s cross-references to the
punishments located in different sections and subsections “lead
the reader in a circle,” Cass, 829 A.2d at 481.16 Subsection (b-
2), for example, provided for the imposition of a civil fine as an

15
They nevertheless state—without supporting argument—that the
1997 law was “by definition” a civil offense when John Doe was
arrested. See Appellant’s Br. 7.
16
At oral argument the Does’ counsel conceded the 1997 law’s
ambiguity, stating that whether it made underage possession a civil or
criminal offense was not “crystal clear.” Oral Arg. at 44:02. The
uncertainty could have been avoided if the D.C. Council had simply
added a subsection providing “Any person who is under 21 and
possesses, purchases or consumes alcohol shall be subject only to civil
penalties,” rather than lifting penalties from other subsections via
cross-reference. It has done so in other statutes. See D.C. Code § 50-
1401.01(d-1) (anyone who operates a motor vehicle in the District
with a license expired for less than ninety days “shall be subject to a
civil fine . . . and shall not be subject to the criminal penalties
contained in subsection (d) of this section”).
 16

“alternative sanction” for any infraction of section 25-130,
indicating that a penalty other than a civil fine could also be
imposed for underage possession. The alternative to the civil
fine, however, could not have referred to the driving privileges
penalties listed in subsection (c) because (c) stated that the
driving privileges penalties were “in addition” to the penalties
included in both subsection (b-1)—the misdemeanor
penalty—and subsection (b-2)—the civil fine—for a violation
“of any provision of this section.” § 25-130(c). Because
subsection (b-1) provided that anyone who falsely represented
his age for the purpose of purchasing alcohol was “deemed
guilty of a misdemeanor” and subsection (c) provided driving
privileges revocation as an “additional” punishment, whether the
1997 law intended the (b-1) criminal penalty as an “alternative”
to the civil fine for underage possession is unclear.17 John Doe
challenged the validity of his arrest under a local law that may
or may not have constituted a crime at the time and, in so doing,
he raised a state law issue only.18
17
The legislative history is, not surprisingly, inconclusive; the
preamble to the 1997 law states that the intent was “[t]o amend the
[ABC Act] to provide for criminal and civil penalties for
misrepresentation of age or purchase, possession, or consumption of
alcoholic beverages by persons under 21 years of age.” 43 D.C. Reg.
4515 (1996) (emphasis added).
18
The District also argues that because the issue of whether the
1997 and 2001 laws authorized arrest for underage possession is an
issue of unsettled state law, the Pullman abstention doctrine applies
and supports affirming the dismissal. Pullman abstention “holds that
‘when a federal constitutional claim is premised on an unsettled
question of state law, the federal court should stay its hand in order to
provide the state courts an opportunity to settle the underlying state-
law question and thus avoid the possibility of unnecessarily deciding
a constitutional question.’ ” See JMM Corp. v. District of Columbia,
378 F.3d 1117, 1124 (D.C. Cir. 2004) (quoting Harris County
 17

Because the 1997 law was ambiguous as to whether
underage possession constituted a crime, however, probable
cause existed for the MPD officer to arrest John Doe. Whether
probable cause exists is determined by looking at all of the facts
and circumstances at the time of the arrest, including the
knowledge and experience of the arresting officer. See United
States v. Kayode, 254 F.3d 204, 209 (D.C. Cir. 2001), cert.
denied, 534 U.S. 1147 (2002). If those facts and circumstances
are “sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense,” then
the police officer will be found to have had probable cause and
the resulting arrest valid. Beck v. Ohio, 379 U.S. 89, 91 (1964).
The facts and circumstances surrounding John Doe’s arrest were
the following: An MPD officer, encountering an underage
person in possession of alcoholic beverages, sought to enforce
the local law prohibiting such possession; the District had
routinely criminally prosecuted underage possession of alcohol
in the past, see Compl. ¶ 34; whether or not such possession
constituted a criminal or civil offense was unclear at the time of
arrest; and the ambiguity was not removed until three years later
when the Cass decision issued. A prudent person could have
reasonably believed that underage possession of alcoholic
beverages was a crime and that John Doe could be arrested for
it. We therefore affirm the district court’s dismissal of John
Doe’s claim, although we do so with prejudice and pursuant to
Rule 12(b)(6)—not 12(b)(1)—because his claim failed to state
a cause of action. See Fraternal Order of Police Dep’t of Corr.
Labor Comm., 375 F.3d at 1143–44 (affirming—under Rule
12(b)(6)—dismissal originally granted under 12(b)(1)).

Comm’rs Court v. Moore, 420 U.S. 77, 83 (1975)). Because of our
disposition, we express no opinion on the applicability of Pullman
abstention—the District’s “alternative theory.” See Appellee’s Br. 23.
 18

C. Jane Does (I, II, III and IV)
The arrest of the four Jane Does under the 2001 law is
another matter. That law, unlike the one governing John Doe’s
arrest in 2000, plainly establishes the underage possession
and/or consumption of alcohol as a civil offense. In the 2001
version, the Council amended the civil fines provision to provide
that any person who violates subsection (a) “shall” be subject to
“the following civil penalties” as an “alternative” to the
misdemeanor penalty imposed for false representation of one’s
age. § 25-1002 (e)(1) (emphases added). The change removed
any ambiguity regarding whether a violation of subsection
(a)—the underage possession and/or consumption
provision—constituted an offense to which the misdemeanor
penalty included in subsection (c) for misrepresenting one’s age
could apply. The plain language of the 2001 law manifested that
it could not; application of the “alternative” misdemeanor
sanction to a violation of subsection (a) was not permitted as it
could have been under the 1997 law.
The four Jane Does, as alleged violators of subsection
(a)—but not (c)—of the 2001 law, were subject to the civil
penalties of subsection (e) and the additional revocation of
driving privileges penalty of subsection (d). The newly-added
subsection (e)(2) also supports the facially civil nature of the
underage possession and consumption prohibition by providing
that “officers of the Metropolitan Police Department may
enforce the provisions of this subsection by issuing a notice of
civil infraction for a violation of subsections (a) or (b) of this
section.” § 25-1002(e)(2) (emphasis added). Subsequent
interpretations by the D.C. Superior Court, while too late to give
notice to the MPD of the civil nature of a violation of subsection
(a) at the time the four Jane Does were arrested in 2003, also
support our conclusion. See, e.g., District of Columbia v.
 19

Kaplan, Crim. No. D-1042-03, at 6–7 (D.C. Super. Ct. Dec. 24,
2003); District of Columbia v. Rothkoff, No. D-1896-01, at 5–7
(D.C. Super. Ct. Nov. 7, 2003).
Because the four Jane Does were arrested for a civil offense,
their claims state a cause of action under the Fourth
Amendment. The district court’s dismissal of their complaint is
therefore reversed and their case is remanded for further
proceedings.19

19
We note that while we have the authority to affirm the dismissal
of the Jane Does’ Fourth Amendment claim on the merits
notwithstanding the district court dismissed for lack of jurisdiction,
see Flynt v. Rumsfeld, 355 F.3d 697, 698 (D.C. Cir.), cert. denied, 543
U.S. 925 (2004), we decline to do so. Both parties have argued the
merits of the Does’ constitutional claim on appeal but several issues
related to that claim have yet to be litigated, including whether the
arresting officers are entitled to qualified immunity. See Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (“Qualified immunity shields an
officer from suit when she makes a decision that, even if
constitutionally deficient, reasonably misapprehends the law
governing the circumstances she confronted.”) (citing Saucier v. Katz,
533 U.S. 194, 206 (2001)). We leave the resolution of this issue, and
others, to the district court on remand. We do, however, comment
briefly on one of our holdings.
In United States v. Bookhardt, 277 F.3d 558 (D.C. Cir. 2002), we
held that an arrest “where the crime charged was not actually a crime”
is invalid. Id. at 565 n.9. In Bookhardt, the government conceded that
the offense for which a police officer had initially arrested Bookhardt
(driving with a license expired for fewer than 90 days) was civil in
nature under D.C. law and therefore did not authorize an arrest. It
argued, however, that the arresting officer had probable cause to
believe that Bookhardt had been driving recklessly, a criminal offense
for which he could be arrested. We applied the rule established in
Whren v. United States, 517 U.S. 806, 813 (1996), and expanded in
Arkansas v. Sullivan, 532 U.S. 769, 772 (2001) (applying Whren
 20

III.
For the foregoing reasons, we affirm the district court’s
dismissal of John Doe’s claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) and with prejudice. We reverse the
dismissal of the four Jane Does’ claims and remand for further
proceedings consistent with this opinion.
So ordered.

objective probable cause rule for civil traffic stop to criminal arrest),
which requires the court to determine the existence of probable cause
objectively without regard to “[s]ubjective intentions [which] play no
role in ordinary, probable-cause Fourth Amendment analysis.”
Although the civil offense for which Bookhardt was arrested did not
authorize arrest, the offense for which there was probable cause to
believe he had committed did so and his arrest was therefore lawful.
Bookhardt, 277 F.3d at 565 & n.11 (citing Whren and Sullivan).
Although the District labels the Bookhardt discussion dictum because
of the government’s concession there, we are not so sure. Whether the
offense for which one is arrested is not in fact a crime or the offense
is in fact a crime but the arresting officer lacks probable cause to
believe the crime has been committed, “an arrest in either
circumstance is equally invalid and the only question under our
precedents is whether another, valid ground for arrest exists.”
Bookhardt, 277 F.3d at 565 n.9; see also Allen v. City of Portland, 73
F.3d 232, 237 (9th Cir. 1995) (“probable cause can only exist in
relation to criminal conduct”); Peterson v. City of Plymouth, 60 F.3d
469, 477 (8th Cir. 1995) (arrest lacked probable cause because arrestee
lacked criminal intent); Moore v. Marketplace Rest., 754 F.2d 1336,
1334–35 (7th Cir. 1985) (same). Because we remand, however, we
need not decide the issue.