Carr v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2009 Decided November 20, 2009

No. 08-7083

SARAH CARR, ET AL.,
APPELLEES

v.

DISTRICT OF COLUMBIA,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-00098-ESH)

Stacy Anderson, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellant. With her on the briefs were Peter J. Nickles,
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General.

Daniel M. Schember argued the cause for appellees. With
him on the brief were Susan B. Dunham, Arthur B. Spitzer, and
Fritz Mulhauser.

Before: SENTELLE, Chief Judge, GRIFFITH, Circuit Judge,
and SILBERMAN, Senior Circuit Judge.
 2

Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

Opinion concurring in part and dissenting in part filed by
Chief Judge SENTELLE.

Opinion concurring in part and concurring in the judgment
filed by Circuit Judge GRIFFITH.

SILBERMAN, Senior Circuit Judge: The District of Columbia
appeals the district court’s grant of summary judgment in favor
of a class of plaintiffs. They participated in a protest march
through the streets of Washington D.C. and were arrested by
District police after the protest became violent. The plaintiffs
sued, alleging they were arrested in violation of their First and
Fourth Amendment rights. The district court granted them
summary judgment on Fourth Amendment grounds, but the only
relief provided was an injunction ordering that plaintiffs’ arrest
records be expunged. We reverse and remand for further
proceedings.

I

On the evening of President George W. Bush’s second
inauguration, January 20, 2005, a group of several hundred
people, including four of the five named plaintiffs in this case,
gathered at a church at 1459 Columbia Road N.W., in
Washington, D.C., for an “Anti-Inaugural Concert.” The
Metropolitan Police Department was aware of the event through
routine Internet monitoring and assigned an undercover officer
to attend. He was directed to report any potentially illegal
activity or public safety concerns through a chain of command
 3

that ended with Special Operations Division Commander, Cathy
Lanier.1

While at the concert, the undercover officer saw a flier
promoting a march to protest the inauguration of President Bush.
The march was to start immediately after the concert. It came
as a surprise to the police department: it was not publicized on
the Internet and the demonstrators had not obtained a permit for
the march, as required by District law. The flier advertised that
the march would begin at the church and proceed through the
Columbia Heights neighborhood to the Washington Hilton at
1919 Connecticut Avenue N.W., where one of the inaugural
balls was taking place. And the flier stated the march was to be
an “explosive protest.” The undercover officer heard someone
announce from the stage that the protestors planned to “crash”
the inaugural ball and also heard some protestors talk about
damaging property along the route. He also reported that at the
conclusion of the concert, organizers distributed bandanas and
vinegar. Detective Drew Smith, the officer to whom the
undercover officer reported, stated that vinegar is often applied
to bandanas in such contexts to create a makeshift “gas mask,”
which mitigates the effect of pepper spray or tear gas.

As the concert concluded just after 11:00 p.m.,
approximately 500 people left the church. Smith was waiting
outside in an unmarked car. He observed some concert goers
leave the area. A large group, however, including four of the
five named plaintiffs, congregated at the intersection of
Columbia Road and 16th Street N.W. Many in the group lit
torches – large poles supporting soup cans with flaming liquid.

1
Of course we take the facts and all reasonable inferences
therefrom in the light most favorable to appellant, the nonmoving
party. See e.g., Currier v. Radio Free Europe/Radio Liberty, Inc., 159
F.3d 1363, 1364 n. 1 (D.C. Cir. 1998).
 4

A number of others covered their faces with bandanas.
Eventually, about 250 to 300 people began marching westbound
on Columbia Road. As they marched, carrying the torches, they
pounded on plastic buckets and chanted loudly. Detective Smith
and other officers in marked police cars followed behind.

All of this information as well as the undercover officer’s
belief that protestors would engage in violence was conveyed up
the chain of command to Commander Lanier. She decided to
monitor the events in person. She arrived at the scene in a
department cruiser just as the group crossed the intersection of
Columbia Road and 16th Street N.W. Commander Lanier was
accompanied by Officer Patrick Keller who served as her
“scribe.” Their cruiser turned onto Columbia Road and
followed the marchers from behind.

As the march progressed, various officers on the scene
witnessed acts of vandalism. Smith observed protestors
dragging newspaper vending machines into the street to prevent
police from following behind them. Others used their bicycles
to block traffic at intersections. Commander Lanier saw a
number of marchers use their flaming torches to set fire to debris
in trash containers along the street and the undercover officer
witnessed marchers spray painting buildings and cars.

As the march reached the 1700 block of Columbia Road
N.W., it became even more destructive. The demonstrators
broke windows or glass doors at several different businesses on
that block. The undercover officer reported to Detective Smith
that he observed “persons within the march” propel missiles
with “wrist rocket slingshots” to break some of the windows.
Each time a window was broken, according to Keller, the group
cheered and its members raised their arms. It appeared to him
as though the entire group was celebrating the destruction of
property. Commander Lanier also viewed the celebrations as a
 5

group response, as opposed to the actions of just a few
individuals. When the marchers reached the Sun Trust Bank at
1800 Columbia Road N.W., members broke several of the
bank’s windows. Once again, Keller witnessed the group
cheering with members raising their arms in response to the
destruction. At about this time, the fifth named plaintiff –
Matthew Singer – ran out of the nightclub he was in to join the
march. Ominously, someone in the group threw a rock or brick
through the window of the police department’s Latino Liaison
Unit office followed by more loud cheering and waving by what
appeared to Officer Keller as everyone in the group.

Commander Lanier, in response to the destruction, ordered
two of the department’s Civil Disturbance Unit platoons to the
area. According to the officers’ affidavits, one such platoon
arrived from the south and set up a police line across 18th Street
north of Belmont Road N.W. in front of the oncoming
demonstrators. The other platoon arrived from the north and
traveled south on 18th Street, coming behind the demonstrators.
This latter platoon included a marked police car driven by
Lieutenant Jimmie Riley and several police department vans.
As Riley’s car arrived directly behind the marchers, one of the
protestors hurled a brick into the windshield of the police
cruiser, shattering it. After that, numerous other demonstrators
threw objects including rocks and bottles at the police car and
police vans.

Based on all of the above described events, Commander
Lanier ordered that the protestors be arrested. But as officers
from Lieutenant Riley’s platoon emerged from their vehicles,
many of the protestors ran away – south along 18th Street.
Stopped by the police line formed across 18th Street, this group
of protestors turned into an alley running from 18th Street to
Columbia Road. Once in the alley, the marchers’ escape was
prevented as another police line blocked the other exit from the
 6

alley to Columbia Road. Lieutenant Riley and members of his
platoon followed the group into the alley and arrested them
there. No order to disperse was given prior to the protestors’
arrests. In all, 65-75 people, including all five of the named
plaintiffs in this case, were arrested in the alley. Though
Commander Lanier believed she had probable cause to arrest the
protestors for rioting, she directed that the field arrest forms
indicate that the arrest was for parading without a permit.
Charging the protestors with the lesser charge of parading
without a permit allowed the arrestees to take advantage of
expedited release procedures that would not apply to rioting
charges.

The named plaintiffs do not dispute that they marched in the
protest. Four of the five – Sarah Carr, Allyson Kirk, Chelsea
Kirk, and Jonathan Scolnik – attended the concert and marched
with the group from the church to the area where property was
destroyed. The other named plaintiff, Matthew Singer, was in
a bar near 18th Street and Columbia Road N.W. when he saw
the protestors march by; he admits that he then ran out to join
the group. Nor do plaintiffs dispute that some persons near or
among the marchers engaged in acts of property destruction.
They do, however, challenge the police officers’
characterization of the group’s response. While the police
affidavits suggest the entire crowd appeared to be encouraging
the property destruction, several of the plaintiffs suggest that
they were not even aware of any vandalism, let alone that they
or the entire group cheered in support of it.

The named plaintiffs also dispute how they came to be
arrested in the alley. All of them assert that they marched past
the 18th Street entrance to the alley, turned right on Belmont
Road, and turned right again back onto Columbia Road. Carr,
Scolnik, and Singer claim that police then herded them into the
alley via the Columbia Road entrance where they were arrested.
 7

Chelsea and Allyson Kirk assert that they entered the alley from
Columbia Road voluntarily because it was the shortest way to
return to the Metro but that they were arrested by police once
they walked in the alley.

The plaintiffs brought a class action suit against the District
under 42 U.S.C. § 1983, alleging that all those who were
arrested and who “committed no other act providing probable
cause” were arrested in violation of their First and Fourth
Amendment rights. After discovery, the parties filed cross-
motions for partial summary judgment on the issue of liability.
The district court denied the District’s motion for summary
judgment and granted summary judgment in behalf of the
plaintiffs.

Plaintiffs’ arrests violated the Fourth Amendment,
according to the district court, because the police, as a matter of
law, simply could not have had probable cause to arrest those in
the alley. Even viewing the facts in the light most favorable to
the district, the police did not have justification to arrest on any
of the proffered bases. That was so because the statement of an
officer that the mob acted uniformly in celebrating the
destructive acts of individual protestors was only a “generalized
statement” insufficient as a matter of law to establish probable
cause vis-a-vis the class. The court’s key holding was that it
was fatal to the district’s position that the officer lacked
“particularized grounds” to believe that every one of the seventy
persons arrested committed the crime of rioting because the
officers could not possibly have observed each one’s behavior.
See Carr v. District of Columbia, 565 F.Supp. 2d 94, 99-101
(D.D.C. 2008).

Turning to the charge of parading without a permit, the
district court apparently concluded that since the offense of
parading without a permit requires a showing of intent, no
 8

reasonable officer could conclude – without a dispersal order –
that the marchers were aware that the march lacked a permit. Id.
at 102-04. The court observed, moreover, that “the district has
offered no indication of how the arresting officers could
distinguish between the protestors and any other person who
might have been in the alley at the time the arrest was ordered”
(which presumably was a reason buttressing the court’s
conclusion regarding the rioting grounds for arrest as well). Id.
at 104 n.14.

The district court based its analysis of both proffered
grounds for plaintiffs’ arrests on our circuit precedent,
specifically two opinions – one, Washington Mobilization
Comm. v. Cullinane, 566 F.2d 107 (D.C. Cir. 1973), from the
Vietnam War era, and our quite recent Barham v. Ramsey, 434
F.3d 565 (D.C. Cir. 2006).

II

Under the District of Columbia’s criminal law, a riot is
defined as “a public disturbance involving an assemblage of 5 or
more persons which by tumultuous and violent conduct or the
threat thereof creates grave danger of damage or injury to
property or persons” (emphasis added). D.C. Code § 22-
1322(a). And it is also unlawful for anyone to engage in, incite,
or urge others to engage in a riot. Id. at § 22-1322(b), (c).

In light of that definition, if members of the crowd were
cheering acts of violence committed by other marchers, they
would be engaging in criminal conduct. Appellees’ counsel did
not dispute that proposition; moreover, he shrewdly conceded
that the district court was in error in concluding that the police
were obliged to identify the individuals who engaged in violence
(and presumably only arrest them). And he also conceded that
the district court erred in concluding that Officer Keller’s
 9

statement that “the mob acted uniformly in celebrating the
destructive acts of individual protestors, thereby encouraging
more such acts” was only a “legally insufficient generalized
statement.” Rather, he recognized that under this court’s
precedent, officers may be able to establish that they had
probable cause to arrest an entire group of individuals if the
group is observed violating the law even if specific unlawful
acts cannot be ascribed to specific individuals. Even so, counsel
contended that the evidence in this case was inadequate, as a
matter of law, to establish that the officers could observe the
whole group.

Appellees also contend that the government did not prove
– which they assert is the government’s burden – that all of the
persons arrested in the alley were marchers. According to
appellees, the government must show that the alley was cleared
before the protestors were herded into the alley and that the
police ensured that no non-marchers entered the alley from the
back side (Columbia Road). Several of the plaintiffs claimed
that they, in fact, entered the alley by that circuitous route, but
they also admitted they were marchers – which is paradoxical
since even if some marchers entered the alley from the back side
and all marchers were legitimately considered rioters, it would
not matter how they entered the alley.2 Only if the police should
have known (or did know) that non-marchers entered the alley
from Columbia Road could those non-marchers claim a possible
illegal arrest.

In any event, appellees’ case boils down to the proposition
that there was an insufficient showing to establish probable

2
If it were determined that there was probable cause to arrest the
named plaintiffs, it is not clear what effect that has on the class action,
see East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395,
406 n.12 (1977), but in any event, that issue has not been presented.
 10

cause that the 65-75 persons arrested – each and every one –
were engaged in the crime of rioting, even as broadly defined.
Appellees seem to contend that no arrests could take place
unless the officers could observe every single member of the
marchers and, perhaps – it is not clear – testify that each one was
either participating in vandalism or cheering it on, and
furthermore, that at the time of the arrest of the 65-75 in the
alley, no non-marchers (non-protestors) were scooped up. The
issues before us are thus considerably narrower than that which
the district court articulated – and they are really factual, not
appropriate for summary judgment.

We do not think Cullinane and Barham support the district
court’s reasoning. Neither case involved an arrest for rioting or
encouraging a riot. In Cullinane, protestors were arrested only
for violating a “failure to move on” statute but, as appellees’
counsel recognized, we observed in that case that, “[i]f all
members of a group are arrested, the prosecutor may well be
able to prove by the testimony of policemen who were at the
scene, that there was probable cause to believe that the group as
a whole was violating the law by violence or obstruction . . . .”
566 F.2d at 121.

In Barham, protestors were arrested for failure to obey a
dispersal order of an officer, but since no order was given, the
court considered whether the police had grounds to arrest for
unlawful assembly or for previous acts of vandalism. An
assistant police chief monitoring groups protesting the annual
meeting of the World Bank had witnessed some unidentified
demonstrators engage in scattered acts of vandalism throughout
the day. Later that day, a large group of demonstrators
converged on Pershing Park. After watching the scene for 45
minutes and despite observing “a diverse flow of human traffic
enter[ing] and exit[ing] the park,” the officer, without giving a
dispersal order, directed that everyone in the park – a group
 11

numbering 386 people – be arrested. 434 F.3d at 569-70. We
held that police did not have probable cause to arrest everyone
in the park on the basis of those earlier acts witnessed by the
assistant police chief, because “[t]raffic offenses and scattered
acts of vandalism by unidentified individuals in the streets . . .
could not have incriminated all of the individuals who happened
to occupy the park” at the time of the arrest. Id. at 574. Neither
was there probable cause to arrest for an unlawful assembly as
there was no way for police to differentiate between assembled
demonstrators and others that just happened to be in the park at
the time. There was no suggestion of a riot in Barham; the
police only argued that the arrests were justified on the isolated
acts of vandalism and unlawful assembly grounds.

Of crucial significance, we made clear that the individuals
in Barham “never operated as a cohesive unit.” Id. at 569.
Moreover, we carefully noted that “the crowd exhibited no
behavior that could allow a reasonable officer to believe
everyone present had committed a crime.” Id. at 573 (emphasis
supplied); see also id. at 574 (“[T]his case is not about a group
of lawbreakers entering an uninhabited park and then remaining
united inside.”) (emphasis supplied). To be sure, as the district
court emphasized, we did say that probable cause must be
particularized, see id. at 573, but it is clear from our opinion –
and from our previous opinion in Cullinane – that that showing
is satisfied if the officers have grounds to believe all arrested
persons were a part of the unit observed violating the law.

Turning to the evidence in our case, the key testimony as to
the behavior of the marchers as a group, as we noted, was that
of Officer Keller, whose affidavit states that as he trailed the
marchers, he saw people within the group throwing objects at
windows of several storefronts. “Each time a window was
broken,” he said, “the group cheered and its members raised
their arms.” The celebration came from “what appeared to be
 12

everyone in the group.” Nevertheless, plaintiffs contend that
from his vantage point, trailing the marchers, Officer Keller
could not have seen the entire crowd and so could not
competently testify under Fed. R. Civ. P. 56(e)(1) as to whether
the entire crowd was encouraging a riot.3 But that is hardly an
issue of “competence” under the Federal Rules; courts exclude
affidavit testimony on competence grounds when the affiant is
somehow not qualified to testify on the subject. See e.g., Shakur
v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (prison’s Pastoral
Administrator not competent under Rule 56(e) to testify about
the cost of procuring prison meals). Keller, on the other hand,
was undeniably present and it is not claimed that his vision was
impaired. He is certainly qualified to describe what he saw. See
Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (affiant
competent under Rule 56(e) to testify to personal observations
and experiences). He may or may not have had the appropriate
vantage point but that, of course, is an issue of fact for the jury,
not a question of competence.

Insofar as appellees (or the district court) are suggesting that
no one could be “competent” to see everyone individually in a
large crowd, they are postulating an impossible burden not
drawn from our precedent. Police witnesses must only be able
to form a reasonable belief that the entire crowd is acting as a
unit and therefore all members of the crowd violated the law. A
requirement that the officers verify that each and every member
of a crowd engaged in a specific riotous act would be practically
impossible in any situation involving a large riot, particularly

3
Plaintiffs suggest that a video depicting portions of the march
proves that someone from the back of the march could not see the
entire crowd. The video, however, does not even show the undisputed
acts of property destruction let alone that someone in Officer Keller’s
position could not have seen the entire crowd’s reaction to those acts.
 13

when it is on the move – at night. To satisfy appellees’
suggested standard of proof would require virtually as many
officers as rioters – and even then it is doubtful that it could be
met. Paradoxically, appellees read the statute so as to make it
unenforceable in situations where it is most needed. To be sure,
under the standard of our cases – that the police are obliged to
show that the crowd acted unlawfully as a unit – it is possible
that an entirely innocent person would be mistaken for a rioter.
But it should be borne in mind that the legal issue is probable
cause, not ultimate conviction. Probable cause only requires a
reasonable belief of guilt, not a certitude. See Brinegar v.
United States, 338 U.S. 160, 175 (1949) (“In dealing with
probable cause, however, we deal with probabilities. These are
not technical, they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.”).

Alternatively, appellees argue that even assuming arguendo
that it reasonably appeared to police that everyone in the street
was rioting, the police still did not have probable cause to make
the arrests in the alley. They again rely heavily on Barham. As
we noted above, in Barham the assistant police chief ordered the
arrest of everyone in the park and argued his decision was
justified because he had observed unidentified demonstrators
engaging in unlawful acts on the streets earlier in the day. 434
F.3d at 574. We easily rejected that argument in part because
evidence in the record showed that pedestrian traffic flowed
freely into the park before the mass arrest. Therefore, the police
could not have had “reasonable, particularized grounds to
believe every one of the 386 people arrested” were the same
people observed committing crimes. Id. Appellees claim the
alley is analogous to the Barham park.

But in Barham the record showed that many people who
could not be tied to illegal activity streamed in and out of the
 14

park before the mass arrest. The parties agree that there is no
affirmative evidence here of individuals not associated with the
protest being present in the alley. Appellees acknowledge this
point, but maintain that it makes no difference because the
District bears the burden of proving probable cause. Granted the
district does have the burden of proving officers had probable
cause, see Dellums v. Powell, 566 F.2d 167, 175-76 (D.C. Cir.
1977), but that burden does not oblige the District to exclude
definitively the bare possibility that there were people that
played no role in the protest in the alley before the protestors
entered. The District must show only that the officers had
reasonable grounds to believe, see Barham 433 F.3d at 574, that
everyone arrested was part of the rioting group.

In that regard, there are material issues of fact that must be
resolved. Plaintiffs and police tell two very different stories as
to how the plaintiffs came to be arrested in the alley. And, we
think the police’s recounting of events, which we must credit at
this stage, certainly permitted the police to believe reasonably
that everyone in the alley had been a marcher.

The police affidavits stress that officers established a line on
18th Street in front of the protestors and south of the alley as
Lieutenant Riley’s Civil Disturbance Unit moved in from
behind. According to Officer Keller, as Riley’s unit approached
the crowd from behind, “the mob ran southward along 18th
Street, N.W., with members running westward into an alley
between Belmont Road, N.W., and Riley’s Cruiser. MPD
officers caught the members of the mob who ran into the alley
. . . .” Keller stated that all this took place as uninvolved
onlookers stood by undisturbed. Other police affidavits
corroborate that account. Importantly, the police accounts
uniformly state that police arrested those members of the crowd
who ran into the alley, as opposed to indiscriminately arresting
everyone they happened to find in the alley as in Barham. There
 15

is also evidence that could allow a fact finder to conclude that
the police took steps to ensure that individuals not connected to
the demonstration would not be caught up in a mass arrest in the
alley. For example, the police stated that they blocked off the
Columbia Road opening to the alley, which would block the
marchers’ escape out of the alley but also, presumably,
prevented others from entering. The District also points to video
evidence which shows police officers clearing the alley of non-
demonstrators prior to the protestors’ arrival.4

Of course, the plaintiffs dispute the officers’ account. All
of the named plaintiffs claim that they walked past the 18th
Street entrance to the alley, turned right on Belmont Road,
turned right again onto Columbia Road and then entered the
alley from the Columbia Road side. Although these plaintiffs
were, in fact, marchers – and, as we pointed out, as marchers it
would not matter how they entered the alley – if their testimony
were believed, it could cast doubt on the effectiveness of the
officers’ claimed blockage of the Columbia Road alley
entrance. But again, that is an issue for the jury.

* * *

Finally, we disagree with plaintiffs (and the district court)
that the police could not lawfully complete the mass arrest
without first ordering the crowd to disperse and then giving
plaintiffs an opportunity to comply. We recognized in
Cullinane, 566 F.2d at 120 that when police face an unruly
crowd they may give a dispersal order and then arrest those who,

4
Plaintiffs argue that the District’s brief fails to explain why out
of 250-300 marchers, only 65-75 were arrested. We are puzzled as to
why this matters. The fact that officers did not arrest everyone in the
crowd that appeared to be rioting says nothing about whether the
officers had probable cause to arrest those they did.
 16

after reasonable opportunity to comply, fail to do so. We
continue to acknowledge that this tactic will be invaluable to
police in certain circumstances. A dispersal order might well be
necessary in a situation in which a crowd is “substantially
infected with violence,” id., or otherwise threatening public
safety, yet officers cannot reasonably believe that the crowd is
acting unlawfully as a unit. In that event, a dispersal order
might be the only means of distinguishing the wholly innocent
from the others. Indeed, that was the situation presented in
Barham and that is why we thought that officers could only deal
with the crowd as a unit by first giving an order to disperse. See
Barham, 434 F.3d at 575-76.

As useful as the dispersal order tactic may be in certain
situations, neither Cullinane, Dellums5, nor Barham establish it
as a constitutional prerequisite before every group arrest. If
police have probable cause to believe that the group they are
arresting is committing or has committed a crime, no more is
necessary. Requiring a dispersal order in addition to the
ordinary probable cause threshold would be particularly
anomalous in a case like this in which officers have reason to
believe that an entire crowd is engaged in or encouraging a riot.
In such a dangerous situation, officers may wish to quell a
disruptive situation and arrest those responsible for it, but a
dispersal order – even if effective, which is doubtful – would

5
As we explained in Barham, this court held that a dispersal
order was required in Dellums before police could arrest “a group of
demonstrators lawfully gathered on the Capitol steps,” Barham, 473
F.3d at 576. Because the Dellums demonstrators had permission to
assemble, we said that it would be a form of entrapment to arrest them
without first giving an opportunity to disperse. Dellums, 566 F.2d at
182-83. We did not hold that a dispersal order is required for any
group arrest.
 17

allow the putative rioters to escape. A refusal to disperse is,
therefore, not one of the elements of a rioting charge.6

III

In addition to ruling that the officers could not have had
probable cause to arrest the protestors for rioting, the district
court held that they could not have had probable cause to make
arrests for parading without a permit. The District contends on
appeal that this too was erroneous.7 On this point we disagree
with the District.

We have held that to be criminally liable for parading
without a permit, one must do so knowingly. See Sheehan, 512
F.3d at 631. Accordingly, officers who make such an arrest

6
Plaintiffs contend that First Amendment principles prohibited
their arrest without first being given a chance to disperse. In sum,
plaintiffs contend that they were marching peacefully and if peaceful
marchers can be arrested without warning because some other
protestors resorted to violence, it will chill First Amendment rights.
Aple. Br. at 36-40. The premise of this argument is fundamentally
flawed, however, because viewing the facts in the light most favorable
to the District, as we must here, it appeared to officers as if the entire
crowd was rioting or encouraging riotous acts. And “where
demonstrations turn violent, they lose their protected quality as
expression under the First Amendment.” Grayned v. City of Rockford,
408 U.S. 104, 116 (1972).
7
Appellees point to the District’s policy, which is not to make
arrests for parading without a permit. However, a police officer can
act consistently with the Fourth Amendment by making an arrest that
is supported by probable cause, even if prohibited by state law, see
Virginia v. Moore, 128 S. Ct. 1598, 1607 (2008) (so holding), so the
District’s policy is also immaterial in our Fourth Amendment analysis.
 18

must have reasonable grounds to believe that the suspect 1) took
part in a parade, 2) without a permit, 3) and did so, knowing no
permit was granted. In this case, there is no dispute that the
demonstrators engaged in a parade and did so without a permit.
But appellees do dispute vigorously that the police officers
could reasonably believe that the protestors knew that no permit
had been given, since no dispersal order mentioning the lack of
permit was given. Just as we explained with regard to the
grounds for arrest for rioting, a dispersal order is not a sine qua
non for arresting for marching without a permit. If the District
could have shown that the protestors had the requisite intent
through other evidence, that would have sufficed.

Still, even if the lack of a dispersal order did not, in itself,
render these arrests unlawful, the District was presented with a
formidable challenge in showing that officers could reasonably
believe that all of the protestors knew no permit was granted.
The police certainly did nothing to otherwise inform the
marchers that their demonstration was not permitted by the
District. So the police had no direct evidence upon which to
conclude that everyone arrested had the requisite intent.
Nonetheless, the District argues that under the circumstances it
was reasonable for police to infer that all of the marchers knew
that this parade did not have a permit. It is claimed that the
protest march was apparently spontaneous; that the march began
at 11:30 at night and proceeded through a residential
neighborhood; that the parade’s participants were carrying
torches, setting fires, and placing obstacles in the street; and
finally, that the protest culminated in a riot.

We are not persuaded that the time or character of the
march is at all probative as to the marchers’ presumed
knowledge that a permit was lacking. Why would a marcher
believe a permit would not be granted to march on 18th Street,
even though it is a partly residential area, or that the District
 19

would not authorize a night march? And that a demonstration
turns violent is hardly evidence that shows it more likely than
not that a permit was not granted. Obviously, an authorized
march or demonstration could turn violent as well as one that
was not authorized.

That leaves the District with its spontaneity argument – and
that might have been sufficient but for the distribution of the
flier, which necessarily suggested to the group earlier planning
for the march. We, therefore, affirm the district court’s rejection
of the alternative non-permit ground for arrest and remand on
the issue of probable cause to arrest for rioting only.

So ordered.
 SENTELLE, Chief Judge, concurring in part and dissenting
in part: I fully join the opinion of the court in all respects
concerning the crime of rioting, and therefore concur in the
disposition reversing the summary judgment as to the arrest on
the rioting charges. However, as to the summary judgment on
the arrest for parading without a permit in violation of 24
DCMR § 707.7, I disagree with the court’s analysis as expressed
in the penultimate paragraph of the opinion and therefore dissent
from the affirmance of the grant of summary judgment. It is
uncontested that the protestors’ conduct met the first two
elements for such a violation: the protestors were participating
in a march and the District of Columbia had not issued a permit
for the march. The only element at issue is the mens rea
requirement of “knowing.” The majority asks, “Why would a
marcher believe a permit would not be granted to march on 18th
Street, even though it is a partly residential area, or that the
District would not authorize a night march?” I would state the
question differently: “Why would anyone believe that the
District would grant a permit for a night march through a partly
residential area?” It seems to me that the police could have
inferred that the protestors knew that no permit had been issued
from the time and location of the march.

It may be that the court’s reasoning would support a verdict
on this count in favor of appellants after trial, but we review the
case on summary judgment. The question on summary
judgment is whether there is “no genuine issue as to any
material fact.” It is true that under Rule 56, “the trial judge must
direct a verdict if, under the governing law, there can be but one
reasonable conclusion as to the verdict.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). It is equally true that
“[i]f reasonable minds could differ as to the import of the
evidence, however, a verdict should not be directed.” Id. at 250-
51. In making the necessary determination “at the summary
judgment stage the judge’s function is not [her]self to weigh the
 2

evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Id. at 249.

As the evidence to me discloses a reasonable inference
opposite than that drawn by the majority and the district court,
and as I deem us all reasonable, it appears to me that reasonable
minds can differ. Weighing the evidence and the inferences is
not for us, but for a trier of fact. I would therefore reverse and
remand the summary judgment as to this issue, as well as the
first.
 GRIFFITH, Circuit Judge, concurring in part and
concurring in the judgment: I would also reverse the district
court and join fully Parts I and III of the court’s opinion. I
write separately because I disagree with the probable cause
standard the majority uses in Part II. As Supreme Court
precedent affirms, the Fourth Amendment requires an
individualized showing of probable cause before arrest. The
majority unnecessarily calls into question the heretofore
straightforward application of that standard in this circuit.

I.

The Fourth Amendment provides, in relevant part, “The
right of the people to be secure in their persons . . . against
unreasonable . . . seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing . . . the
persons or things to be seized.” U.S. CONST. amend. IV.
Explaining the Fourth Amendment’s requirement of a
particularized showing of probable cause, the Supreme Court
in Ybarra v. Illinois stated that “a search or seizure of a
person must be supported by probable cause particularized
with respect to that person.” 444 U.S. 85, 91 (1979).
Similarly, the Court in Maryland v. Pringle emphasized that
“the belief of guilt must be particularized with respect to the
person to be searched or seized.” 540 U.S. 366, 371 (2003). In
other words, the police must have a reasonable and
particularized belief that each individual arrested committed a
crime. As the Ybarra Court made clear, “This requirement
cannot be undercut or avoided by simply pointing to the fact
that coincidentally there exists probable cause to search or
seize another.” 444 U.S. at 91. Before today, our case law did
not suggest “that one who has violated no law may be arrested
for the offenses of those who have been violent or
obstructive.” Wash. Mobilization Comm. v. Cullinane, 566
F.2d 107, 120 (D.C. Cir. 1977). Today’s decision suggests
just that.
 2

Describing what must precede an arrest when a crowd of
political demonstrators has gotten out of hand, the majority
creates a standard of probable cause less demanding than
Ybarra and Pringle for circumstances in which the police
cannot say anything more than the arrested person was part of
a group some of whose members were rioting. “Police
witnesses,” the majority concludes, “must only be able to
form a reasonable belief that the entire crowd is acting as a
unit and therefore all members of the crowd violated the law.”
Slip Op. at 12. By this standard, the police are permitted to
conclude that all members of the crowd were breaking the
law, not because of a particularized showing that each of its
members was rioting, but because of an officer’s “reasonable
belief that the entire crowd is acting as a unit.” Id.

It is far from clear what the majority means when it
speaks of a “crowd . . . acting as a unit.” I would have no
quarrel with the majority’s approach if it meant there must be
probable cause that every individual in the crowd acted in
concerted lawlessness with the rest of the group. But the
majority refuses to ask this of the police. Not only does the
majority avoid the language of Ybarra and Pringle calling for
particularized probable cause that the arrested person
committed a crime, but it flatly rejects that standard in this
case. The majority protests that “[a] requirement that the
officers verify that each and every member of a crowd
engaged in a specific riotous act would be practically
impossible in any situation involving a large riot . . . .” Id. The
issue, however, is not what is practical but what the Fourth
Amendment requires, and in this case the majority departs
from the Supreme Court’s consistent instruction that
individualized probable cause must precede arrest.
 3
The majority takes the term “unit” from our decisions in
Cullinane and Barham v. Ramsey, 434 F.3d 565 (D.C. Cir.
2006), but neither of those cases suggests that the Fourth
Amendment permits an arrest of a person based on anything
less than particularized probable cause. Calling the group or
crowd a “unit” does not alter the probable cause calculus.
Police don’t arrest units. They arrest persons, and the Fourth
Amendment requires they do so only upon an individualized
determination that the person arrested acted unlawfully. The
majority’s approach ultimately fails because whatever else it
may mean to have a reasonable belief that a crowd acted “as a
unit,” it cannot be the basis for the arrest of a member of that
crowd, unless there is also a particularized showing that the
person broke the law.

That the Fourth Amendment bars police from arresting a
person solely because he or she is part of a group that includes
others who have committed crimes should be undisputed. But
the majority permits just that outcome. No case relied upon by
the majority stands for the proposition for which this case will
be cited: that police may lawfully execute mass arrests based
upon assessments of group behavior and not upon
particularized determinations about individual conduct.
Because the Fourth Amendment demands more from the
police than the majority requires, I cannot join Part II of the
court’s opinion.

II.

The issue before the district court on plaintiffs’ motion
for summary judgment was whether the police had probable
cause to arrest every demonstrator on the basis of Officer
Keller’s observations. By granting summary judgment, the
district court erred in two ways.
 4
First, the court disregarded a genuinely disputed issue of
material fact. “A genuine issue of fact derives from the
‘evidence [being] such that a reasonable jury could return a
verdict for the nonmoving party’ . . . resolving all ambiguities
and drawing all factual inferences in favor of the nonmoving
party.” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)). Keller said he saw every member of the crowd
commit the crime of rioting. His statements on this point were
unequivocal:

- “Each time a window was broken, the group cheered
and its members raised their arms.”
- “It appeared that the entire group was engaging in the
celebrations as they moved . . . .”
- “The mob then cheered and its members raised their
arms in celebration.”
- “Someone in the group hurled a rock or brick through
the window of [the Metropolitan Police Department’s
Latino Liaison Unit] Office . . . which was once again
followed by loud cheering and arm waving from what
appeared to be everyone in the group. I could see and
hear this clearly from inside Cruiser 18 . . . .”

Decl. of Patrick Keller ¶ 6 (Feb. 26, 2008). Not surprisingly,
plaintiffs denied they engaged in rioting, thus disputing that
Keller observed every member of the crowd. See, e.g.,
Plaintiffs’ Motion for Partial Summary Judgment on Liability
at 5–6, Carr v. District of Columbia, 565 F. Supp. 2d 94
(D.D.C. 2008) (No. 06-00098) (“[T]he police had no evidence
identifying particular individuals who had engaged in the
criminal acts.”). The legal issue—whether there was
particularized probable cause to arrest plaintiffs—turns on
whether Keller did see every individual in the crowd commit
a crime.
 5

The assertion that one officer could see each of the 300
individual marchers is audacious. Regardless, in considering
plaintiffs’ motion for summary judgment, it was error for the
district court not to view Keller’s statements in the light most
favorable to the District. “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . . . . The evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.”
Liberty Lobby, 477 U.S. at 255. Keller says he saw each
person in the march celebrate acts of violence. Because it is
possible that a reasonable jury could credit his testimony, the
district court erred by failing to take Officer Keller at his
word.

Second, the district court incorrectly held that Keller’s
testimony was insufficient as a matter of law because it failed
to establish the particularity called for in Ybarra. The court
concluded, “These kinds of generalized statements are legally
insufficient to establish probable cause. . . . Nowhere does the
District make any effort to ascribe misdeeds to the specific
individuals arrested.” Carr v. District of Columbia, 565 F.
Supp. 2d 94, 100 (D.D.C. 2008) (internal quotation marks and
citation omitted). To the contrary, Keller’s statements
accomplish precisely what the district court concluded they
did not. Keller ascribed misdeeds to the specific individuals
arrested. He said he saw every member of the crowd commit a
crime. In light of Keller’s clear testimony about the criminal
misconduct of each person in the crowd, the district court
should not have granted summary judgment.

Ruling on this narrow ground corrects the district court’s
error without suggesting police may conduct mass arrests
without individualized probable cause.