                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

                           )
ANTHONY MICHAEL PATTERSON, )
                           )
          Plaintiff,       )
                           )
          v.               )                     Civil Action No. 13-cv-0085 (KBJ)
                           )
UNITED STATES OF AMERICA,  )
et al.,                    )
                           )
          Defendants.      )
                           )

                                 MEMORANDUM OPINION

       Plaintiff Anthony Michael Patterson (“Patterson” or “Plaintiff”) filed the instant

complaint alleging that his constitutional rights were violated when he was arrested for

using profanity in a public park. He has brought suit against United States Park Police

Sergeant Todd Reid and Officers Jennifer Lemke and Matthew Cooney (collectively,

“individual defendants,” “Defendants,” or “the officers”), claiming that they violated

his First and Fourth Amendment rights and requesting damages under Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

(Compl., ECF No. 1, ¶¶ 21-26.) Patterson has also brought a false arrest claim against

the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C.

§ 1346(b). (Id. ¶¶ 27-29.)

       Presently before the Court is the individual defendants’ motion to dismiss the

claims against them. (Defs.’ Mot. to Dismiss the Compl. (“Defs.’ Mot.”), ECF No. 8.)

In that motion, the individual defendants argue that the first two counts of the

complaint—the Bivens claims against the officers—must be dismissed for failure to
state a claim upon which relief can be granted because the officers are entitled to

qualified immunity.

      Upon consideration of the arguments made in the parties’ briefs and at the

October 31, 2013, motion hearing, the Court DENIES the individual defendants’

motion to dismiss. A separate order consistent with this opinion will follow.


I.    BACKGROUND

     A. Facts Alleged in the Complaint

      Patterson’s complaint alleges the following facts. Patterson is an Occupy D.C.

protestor who was in McPherson Square park on January 8, 2012, when he saw three

teenagers enter the park with signs supporting the Tea Party movement. (Compl. ¶ 8.)

The complaint states that Patterson looked up at the sky when he saw the Tea Party

supporters and said, “Ah, this fucking bullshit.” (Id. ¶ 9.) According to Patterson, this

statement was “not directed at anyone in particular,” and was made at a “normal

conversational volume” in a non-aggressive manner that “merely indicated annoyance.”

(Id.) Patterson alleges that the Tea Party supporters were approximately seven feet

away from him when he made the comment and did not acknowledge Patterson or his

comment in any way. (Id.) The complaint states that the only people present in the

park when Patterson made the statement, other than he and the three Tea Party

supporters, were two other Occupy D.C. protesters and eight police officers. (Id. ¶ 8.)

      Seconds after Patterson made the statement, several United States Park Police

officers, including Sergeant Reid and Officers Lemke and Cooney, approached him.

(Id. ¶ 10.) According to the complaint, Sergeant Reid told Patterson not to use

profanity, and it was only after Sergeant Reid issued that rebuke that the Tea Party


                                            2
supporters appeared to notice Patterson. (Id.) In response to Sergeant Reid, Patterson

turned towards the officers and said, “I can’t say fuck?” (Id. ¶ 11.) Sergeant Reid told

Patterson that this was his “second warning.” (Id. ¶ 12.) Patterson replied, “That’s

fucking bullshit.” (Id. ¶ 13.) Sergeant Reid then ordered Officers Lemke and Cooney

to arrest Patterson for disorderly conduct, which they did. (Id. ¶¶ 14-15.) The

complaint does not allege that the Tea Party supporters had any particular reaction to

the conversation between Patterson and the officers. (See id. ¶¶ 11-15.)

        The officers brought Patterson to their station, processed him, and released him

with an upcoming D.C. Superior Court date. (Id. ¶ 16.) Patterson alleges that as he left

the station, Sergeant Reid said to him, “Mr. Patterson, you are right. Profanity is

protected under freedom of speech. But when you use profanity it causes a hostile

environment for the police.” (Id. ¶ 17.)

        On January 10, 2012, Officer Lemke appeared before an Assistant Attorney

General for the District of Columbia and signed a Gerstein affidavit regarding

Patterson’s arrest (id. ¶ 19), which is discussed further below. 1 In the complaint,

Patterson references this affidavit solely to allege that, “[t]he Gerstein affidavit signed

by Officer Lemke contained statements that Officer Lemke knew to be false.” (Id.

¶ 19.) One month later, the government dropped the disorderly conduct charges against

Mr. Patterson. (Id. ¶ 20.)




1
  A Gerstein affidavit is an arresting officer’s sworn statement that probable cause exists to believe that
a crime was committed and that the person identified in the statement is the one who committed it. See
Gerstein v. Pugh, 420 U.S. 103, 120 (1975).

                                                     3
      B. Procedural History

        Almost one year after his arrest, Patterson filed the instant complaint, which

includes three counts: two against the arresting officers in their individual capacities,

and one against the United States. The third count alleges that the United States is

liable under the Federal Tort Claims Act for Patterson’s false arrest (Compl. ¶¶ 27-29);

this count is not at issue in the instant motion. 2 Instead, the instant motion to dismiss

addresses the first two counts of the complaint—the claims against the individual

defendants. Count I alleges that Sergeant Reid violated Patterson’s First Amendment

rights when he ordered Officers Lemke and Cooney to arrest Patterson solely based on

the content of protected speech in the absence of probable cause to arrest him for

disorderly conduct and that Officers Lemke and Cooney violated Patterson’s First

Amendment rights when they complied with that order and actually arrested him. (Id.

¶¶ 22-23.) In Count II, Patterson similarly alleges that the officers also violated his

Fourth Amendment rights insofar as there was no probable cause for the arrest. (Id.

¶¶ 25-26.)

        The individual defendants seek dismissal of these two counts for failure to state a

claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure

12(b)(6). (Defs.’ Mot. at 1.) With respect to Count I, the First Amendment retaliatory

arrest claim, the individual defendants contend that there is no Bivens remedy available

for a First Amendment violation, and even if there is such a remedy, the officers are



2
  The United States filed an answer to this count, in which it asserted several affirmative defenses,
including: (1) failure to state a claim upon which relief may be granted; (2) no acts or omissions by the
government were the proximate cause of any injury; (3) the constitutional claims are barred by
qualified immunity; (4) Patterson failed to mitigate his damages; and (5) the United States, through its
employees and agents, acted with due care and diligence at all relevant times. (U.S. Answer, ECF No.
7, at 1-2).

                                                    4
entitled to qualified immunity because they had probable cause for Patterson’s arrest.

(See Defs.’ Mot. at 1, 4-5.) Defendants seek dismissal of Count II, the Fourth

Amendment false arrest claim, solely on the grounds that the officers are entitled to

qualified immunity. (See Defs.’ Mot. at 1, 5-6.)

       The individual defendants have attached to their motion a copy of the Gerstein

affidavit that Officer Lemke executed in connection with Patterson’s arrest. In the

Gerstein affidavit, Officer Lemke contends that Patterson yelled “fuck white people”

when he saw the Tea Party protesters enter the park, and she describes how Patterson

continued to yell “fuck” multiple times after Sergeant Reid approached him and warned

him to stop cursing. (Gerstein Aff., Ex. 1 to Defs.’ Mot., ECF No. 8-1.) According to

Officer Lemke, Patterson responded to Sergeant Reid by stating that his “language was

protected under [the] 1st amendment.” (Id.) The affidavit also represents that

Patterson’s language caused “a crowd of onlookers” to gather in the square. Officer

Lemke avers that Patterson repeatedly shouted profanity until he was taken away, and

that Sergeant Reid specifically warned him against “this type of language, intending to

cause a disturbance.” (Id.) The individual defendants contend that the Gerstein

Affidavit further supports that the officers had probable cause for Patterson’s arrest.

(Reply In Support of Defs.’ Mot. to Dismiss (“Defs.’ Reply”), ECF No. 14, at 2 n.1.)

       Conversely, Patterson maintains that both of the challenged counts of his

complaint survive the individual defendants’ motion to dismiss because he was arrested

for engaging in protected speech and without probable cause to believe he was

committing any crime. (Mem. of P & A in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s

Mem.”), ECF No. 11, at 5.) As for Count I, Patterson maintains that the First



                                             5
Amendment is violated when a person is arrested for protected speech, including

profanity that does not threaten violence (id. at 7-8), and counsel for the plaintiff

argued at the motion hearing that the Court must follow D.C. Circuit case law

recognizing the availability of a Bivens remedy for such a violation. Moreover, with

respect to both counts of the complaint, Patterson urges that no reasonable officer

would have found probable cause for his arrest; and, therefore, the officers are not

entitled to qualified immunity. (Id. at 4-5.)


II.    STANDARD OF REVIEW

      A. Motion To Dismiss

       The individual defendants seek dismissal of Patterson’s claims against them

pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.’ Mot. at 1.) In evaluating

a motion to dismiss, the court must accept as true all factual allegations in the

complaint, and the plaintiff should receive the benefit of all inferences that can be

derived from the facts alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). “While the

complaint is to be construed liberally in plaintiff’s favor, the Court need not accept

inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in

the complaint; nor must the Court accept plaintiff’s legal conclusions.” Kramer v.

United States, 460 F. Supp. 2d 108, 110 (D.D.C. 2006) (citing Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). Although “detailed factual allegations”

are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007), a plaintiff must plead enough facts to make the claim seem

plausible on its face. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a


                                                6
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citation omitted). Although a plaintiff may still survive a

Rule 12(b)(6) motion even where “recovery is very remote and unlikely[,]” the facts

alleged in the complaint “must be enough to raise a right to relief above the speculative

level[.]” Twombly, 550 U.S. at 555-56 (internal quotation marks and citation omitted).

       When evaluating a motion to dismiss under Rule 12(b)(6), a court generally does

not consider matters beyond the pleadings. Ward v. D.C. Dep’t of Youth Rehab. Servs.,

768 F. Supp. 2d 117, 119-20 (D.D.C. 2011). However, the court may consider “the

facts alleged in the complaint, documents attached as exhibits or incorporated by

reference in the complaint, or documents upon which the plaintiff’s complaint

necessarily relies even if the document is produced not by the plaintiff in the complaint

but by the defendant in a motion to dismiss[.]” Id. at 119 (internal quotation marks and

citations omitted); Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999) (same).

For example, a plaintiff’s complaint “necessarily relies” on a document when the

complaint “quote[s] from and discuss[es a document] extensively.” W. Wood

Preservers Inst. v. McHugh, 292 F.R.D. 145, 149 (D.D.C. 2013) (citation omitted).

Even if a court considers a document attached to a motion to dismiss, the court must

still construe all well-pleaded factual allegations in the plaintiff’s favor, especially if

the parties disagree about the nature of the evidence. See, e.g., Lipton v. MCI

Worldcom, Inc., 135 F. Supp. 2d 182, 186-87 (D.D.C. 2001) (considering tariff rates

submitted with defendant’s motion to dismiss, but accepting plaintiff’s allegation that

those rates were not the ones plaintiff had agreed to).




                                              7
      B. Possible Conversion To A Motion For Summary Judgment

        If the Court considers materials outside the pleadings on which the complaint

does not necessarily rely, it must convert the motion to dismiss into one for summary

judgment. Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011) (citing Fed. R.

Civ. P. 12(d)); see also Wiley v. Glassman, 511 F.3d 151, 160 (D.C. Cir. 2007) (same). 3

“The decision to convert a motion to dismiss into a motion for summary judgment . . . is

committed to the sound discretion of the trial court.” Flynn v. Tiede-Zoeller, Inc., 412

F. Supp. 2d 46, 50 (D.D.C. 2006) (citation omitted); see also Dial A Car, Inc. v.

Transp., Inc., 82 F.3d 484, 493 (D.C. Cir. 1996) (Silberman, J., concurring in part and

dissenting in part) (“[T]he judge’s discretion on a Fed. R. Civ. P. 12(b)(6) motion to

dismiss extends only to whether to accept evidentiary or factual submissions that would

convert the motion into one for summary judgment under Rule 56.”). In exercising this

discretion, the “reviewing court must assure itself that summary judgment treatment

would be fair to both parties[.]” Tele-Commc’ns of Key West, Inc. v. United States, 757

F.2d 1330, 1334 (D.C. Cir. 1985). For example, “[i]n converting the motion, district

courts must provide the parties with notice and an opportunity to present evidence in

support of their respective positions.” Kim, 632 F.3d at 719 (citation omitted).

Alternatively, “if the parties have not been provided with notice or an opportunity for

discovery[,]” the Court must ensure that the parties “have had a reasonable opportunity




3
 Specifically, Rule 12(d), entitled “Result of Presenting Matters Outside the Pleadings,” states that
“[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed. R. Civ. P. 12(d).


                                                    8
to contest the matters outside of the pleadings such that they are not taken by surprise.”

Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77, 86 (D.D.C. 2012) (citation omitted).

       In this case, Defendants attached Officer Lemke’s sworn Gerstein affidavit to

their motion to dismiss. (See Gerstein Aff.) Initially, Defendants attached the

“criminal incident reports” associated with Patterson’s arrest, but the Court granted

leave to substitute the Gerstein affidavit. (Minute Order of July 16, 2013.) In that

order, the Court preliminarily concluded that the affidavit was both referenced in and

central to Patterson’s complaint, but the Court now recognizes that, while the complaint

references the Gerstein affidavit, it does so only to deny its validity. (See Compl. ¶ 19

(“The Gerstein affidavit signed by Officer Lemke contained statements that Officer

Lemke knew to be false, including that Mr. Patterson yelled, ‘Fuck white people.’ At

no point did Mr. Patterson yell or otherwise say, ‘Fuck white people’ or words to that

effect.”).) Accordingly, although the Gerstein affidavit is referenced in the complaint

and contains factual material at the heart of the dispute, the Court finds that the

complaint does not necessarily rely on the Gerstein affidavit: Patterson does not

discuss it extensively and minimally quotes from it only to impugn Officer Lemke’s

description of events. Moreover, at the hearing, counsel for the defendants indicated

that Defendants did not want their motion converted into one for summary judgment

based on the Court’s consideration of the Gerstein affidavit, and suggested that the

Court consider only the facts alleged in the complaint. Accordingly, the Court declines

to consider the Gerstein affidavit and will decide the instant motion solely on the facts

alleged in the complaint. See Ward, 768 F. Supp. 2d at 119-20; Vanover, 77 F. Supp.




                                             9
2d at 98; see also Lipton, 135 F. Supp. 2d at 186-87 (considering the outside materials

only to the extent that they did not contradict with the facts alleged in the complaint).


III.   ANALYSIS

       In their motion, the individual defendants raise two distinct challenges to

Patterson’s claims. First, they contend that Patterson cannot bring an action under

Bivens for a First Amendment violation, as alleged in Count I. (Defs.’ Mot. at 4-5.)

Second, Defendants maintain that even if the Court were to recognize such a claim,

both the First and Fourth Amendment claims (Counts I and II) must be dismissed for

failure to state a claim because they cannot withstand the defense of qualified

immunity. (Id. at 5-8.) In regard to the qualified immunity defense, the officers

specifically contend that they did not violate Patterson’s constitutional rights because

the arrest itself was lawful, as any reasonable police officer would have found probable

cause to arrest Patterson for disorderly conduct under the circumstances alleged in the

complaint. (Defs.’ Mot. at 8.) For his part, Patterson contends that a First Amendment

Bivens claim is actionable in the D.C. Circuit, and that the officers are not entitled to

qualified immunity because no reasonable police officer faced with the alleged facts

would have found probable cause for his arrest. (See Pl.’s Mem. at 1.) For the reasons

that follow, this Court concludes that both counts survive the officers’ motion to

dismiss.


       A. A Bivens Remedy Is Available For Plaintiff’s First Amendment Claims

       As noted, Patterson’s complaint alleges violations of the First and Fourth

Amendment. Defendants concede that Patterson’s Fourth Amendment claim is

actionable, since Bivens itself involved a Fourth Amendment violation. Bivens v. Six

                                             10
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); see also

Minneci v. Pollard, 132 S. Ct. 617, 621 (2012) (“In Bivens itself the Court held that the

Fourth Amendment implicitly authorized a court to order federal agents to pay damages

to a person injured by the agents’ violation of the Amendment’s constitutional

strictures.” (citing Bivens, 403 U.S. at 389)). But in their briefing and at the hearing,

Defendants took the bright-line position that no Bivens action exists for a First

Amendment violation because the Supreme Court has not expressly extended Bivens to

First Amendment claims (Defs.’ Mot. at 4-5), and it has never held that there is a First

Amendment right to be free from retaliatory arrest when there is probable cause for the

arrest (id. at 6-8 (relying on Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4, 2094

(2012))). Defendants’ First Amendment arguments miss the mark for two primary

reasons: first, while it is true that the Supreme Court has not explicitly authorized a

First Amendment Bivens action, the D.C. Circuit has, see Dellums v. Powell, 566 F.2d

167 (D.C. Cir. 1981); and second, even if there is no First Amendment right to be free

from retaliatory arrest in the presence of probable cause, it is well established that

where, as here, there is an allegation of retaliatory arrest in the absence of probable

cause, the plaintiff has a viable First Amendment claim.

          The requirements and jurisprudence of the Bivens remedy make clear why

Defendants’ arguments fail. Bivens is a judicially created doctrine that allows a

plaintiff to bring a cause of action for money damages against agents acting under the

color of federal authority who cause injury by violating the plaintiff’s constitutional

rights. See generally Bivens, 403 U.S. at 389. 4 To state a prima facie Bivens claim, the

plaintiff must establish that: (1) the defendant violated a federal constitutional right of
4
    In essence, Bivens is the federal-actor analog to § 1983 actions.

                                                      11
the plaintiff, Lewis v. Bayh, 577 F. Supp. 2d 47, 57 (D.D.C. 2008); (2) the right was

clearly established, Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 689 (D.C. Cir.

2009); (3) the defendant was a federal actor by virtue of acting under color of federal

law, CHS Indus., LLC v. U.S. Customs & Border Prot., 653 F. Supp. 2d 50, 55 (D.D.C.

2009); and (4) the defendant was personally involved in the alleged violation, Garcia v.

Sebelius, 867 F. Supp. 2d 125, 137 (D.D.C. 2012), vacated in part on other grounds by

919 F. Supp. 2d 43 (2013). Moreover, in any action claiming retaliation—like the

alleged retaliatory arrest at issue here—a Bivens plaintiff must show a causal

connection between a defendant’s retaliatory animus and the plaintiff’s subsequent

injury. Hartman v. Moore, 547 U.S. 250, 259 (2006).

        Significantly, Bivens itself involved a Fourth Amendment violation, Bivens, 403

U.S. at 395-96, and the Bivens remedy is not necessarily available for all types of

constitutional infractions; indeed, “[b]ecause implied causes of action are disfavored,

the [Supreme] Court has been reluctant to extend Bivens liability ‘to any new

context[.]’” Iqbal, 556 U.S. at 670. 5 Nevertheless, to date, the Bivens doctrine has

been extended to recognize an implied cause of action for the violation of several

constitutional amendments, including the Fifth, Eighth, Ninth, Fourteenth, and—

contrary to Defendants’ staunch assertion—the First. See Rodney A. Smolla, 2 Fed.

Civil Rights Act, § 14:155 at 850 (3d ed. 2013) (collecting cases).




5
 Whether liability is extended depends, in large part, on whether there is congressional intent to
displace a Bivens remedy (either through an alternative scheme for relief that makes a Bivens action is
unnecessary, or otherwise), see Bush v. Lucas, 462 U.S. 367, 378 (1983), and/or whether the matter is
of a “special nature” such that a Bivens remedy would be inappropriate, see Chappell v. Wallace, 462
U.S. 296 (1983); Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc), cert. denied, 133 S. Ct.
2796.

                                                   12
       With respect to alleged First Amendment violations, Bivens actions have been

extended only to certain violations of free speech. For example, courts have recognized

Bivens First Amendment actions based on retaliatory termination of federal employees,

see Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 66 (D.D.C. 2009),

aff’d sub nom. Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011), and

retaliatory prosecution (i.e., malicious prosecution based solely on protected speech in

the absence of probable cause), Hartman, 547 U.S. at 250. Most importantly for the

case at bar (and fatal to the individual defendants’ argument that Patterson’s First

Amendment Bivens claim is not cognizable), the D.C. Circuit has also extended Bivens

to recognize First Amendment retaliatory arrest claims. See Dellums, 566 F.2d at 196

(holding that plaintiffs can bring a Bivens action under the First Amendment); see also

Bloem v. Unknown Dep’t of the Interior Employees, 920 F. Supp. 2d 154, 161 (D.D.C.

2013) (finding that the plaintiff stated a Bivens claim for a First Amendment violation

for retaliatory arrest); Hartley v. Wilfert, 918 F. Supp. 2d 45, 52 (D.D.C. 2013) (finding

that the plaintiff demonstrator stated a Bivens claim for a First Amendment violation for

retaliatory arrest).

       In Dellums, the D.C. Circuit held that a Bivens remedy was available to Vietnam

war protestors who were arrested on the steps of the United States Capitol in violation

of their First Amendment rights. 566 F.2d at 194-96. The specific question before the

court was whether there was “a cause of action under Bivens for redress of First

Amendment violations,” and the Circuit answered in the affirmative. Id. at 194-95. In

so holding, the D.C. Circuit “focused on the harm that would result from the loss of an

ability to express oneself[.]” Hartley, 918 F. Supp. 2d at 50 (citing Dellums, 566 F.2d



                                            13
at 195). The Dellums court also “expressly rejected the appellants’ argument that

providing such a cause of action would set a trap for the unwary policeman by

‘subject[ing] police officers to the alleged perplexities of First Amendment law,’ noting

that the ‘broad good faith immunity’ available to officers exempts them from being

‘held to the standards of a constitutional lawyer.’” Bloem, 920 F. Supp. 2d at 160

(alterations in original) (quoting Dellums, 566 F.2d at 195 n.84).

       What is more, the D.C. Circuit is not alone among the courts of appeals in

recognizing a Bivens claim premised on a First Amendment violation. To the contrary,

since Dellums was decided over three decades ago, other circuits have embraced its

rationale. See, e.g., Mendocino Envtl. Ctr. v. Mendocino Cnty., 14 F.3d 457, 464 (9th

Cir. 1994) (finding that plaintiffs stated a Bivens claim by alleging that federal agents

intended to interfere with the plaintiffs’ speech about the environment); Paton v. La

Prade, 524 F.2d 862, 870 (3d Cir. 1975) (recognizing a Bivens action for First

Amendment violations). And in their reasoning, these circuits have also highlighted the

nonsensical result of allowing a cause of action against state officials for First

Amendment violations under § 1983 but not against federal actors under Bivens. See

Paton, 524 F.2d at 870 (“There is no reason to allow federal officials to act with

impunity in this context and to bar state officials. The damage to the individual’s first

amendment interests is the same regardless of the perpetrator of the violation.”); see

also Gibson v. United States, 781 F.2d 1334, 1342 n.3 (9th Cir. 1986) (“Given the

availability of § 1983 relief against state agents who infringe First Amendment rights, it

is hard to see why Bivens relief should not be available to redress equivalent violations

perpetrated by federal agents.” (citation omitted)).



                                             14
          Defendants here question the continued viability of Dellums in light of the

Supreme Court’s recent decision in Reichle. In that case, the plaintiff brought a Bivens

action claiming that Secret Service agents violated his First and Fourth Amendment

rights when they arrested him at a public event where Vice President Richard Cheney

was speaking, after the plaintiff orally criticized the Vice President and also laid a hand

on the Vice President’s shoulder. 132 S. Ct. at 2091-92. The Supreme Court found that

the officer was entitled to qualified immunity on the plaintiff’s First Amendment claim

because the right to be free from retaliatory arrest where there otherwise is probable

cause for the arrest was not clearly established in the Tenth Circuit. Id. at 2095-96.

Here, Defendants rely principally on the Supreme Court’s side comments that the Court

has “never held that Bivens extends to First Amendment claims,” (Defs.’ Mot. at 4

(citing Reichle, 132 S. Ct. at 2093 n.4)), and “has never recognized a First Amendment

right to be free from a retaliatory arrest that is supported by probable cause.” (Defs.’

Mot. at 4 (citing Reichle, 132 S. Ct. at 2093).) But these comments from Reichle are

pure dicta, and in any event, do not dispose of Patterson’s First Amendment claim as

Defendants maintain. Reichle involved a circumstance in which there was probable

cause to arrest the plaintiff based on his conduct during the event in question; the

Supreme Court simply did not consider any claim for retaliatory arrest in the absence of

probable cause. See 132 S. Ct. at 2093. Moreover, the Reichle Court held only that a

First Amendment right not to be subjected to retaliatory arrest when there is probable

cause was not “clearly established” in the Tenth Circuit, see id.—not that no such right

exists.




                                              15
       Most important, as described above, the D.C. Circuit has expressly recognized

that there is a First Amendment right not to be arrested in retaliation for one’s speech

where there is otherwise no probable cause for the arrest, see Dellums, 566 F.2d at 195-

96, and this Court cannot ignore the D.C. Circuit’s binding precedent. See Critical

Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir.

1992) (en banc) (holding that decisions of the D.C. Circuit are binding “unless and until

overturned by the court en banc or by Higher Authority” (citation omitted)); Hartley,

918 F. Supp. 2d at 52 (“Even if Defendants are correct in predicting the Supreme

Court’s response to questions not yet before it, this Court cannot accept its invitation to

depart from this Circuit’s binding precedent.” (citations omitted)); Owens-Ill., Inc. v.

Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C. 1984) (“The doctrine of stare

decisis compels district courts to adhere to a decision of the Court of Appeals of their

Circuit until such time as the Court of Appeals or the Supreme Court of the United

States sees fit to overrule the decision.” (citations omitted)). Consequently, despite

Defendant’s arguments to the contrary, this Court concludes that Patterson’s First

Amendment Bivens claim—which alleges that Patterson was arrested without probable

cause and “solely on account of the content of his speech” (Compl. ¶ 23)—is

actionable.


       B. The Facts Alleged Do Not Establish That There Was Probable Cause To
          Arrest Plaintiff

       The Court next turns to whether the complaint alleges facts that, if true, are

sufficient to establish that there was no probable cause to arrest Patterson—an inquiry

that strikes at the heart of Plaintiff’s First and Fourth Amendment claims and also the



                                            16
individual defendants’ assertions of qualified immunity in this case. Defendants

contend that, given the facts and circumstances alleged in the complaint, a reasonable

officer would have concluded that there was probable cause to arrest Patterson for

disorderly conduct and therefore the officers are entitled to qualified immunity. (Defs.’

Mot. at 5-8.) Patterson denies that any reasonable officer could find probable cause for

his arrest on the facts alleged, and urges the Court to reject Defendants’ assertion of

qualified immunity and, in turn, to deny their motion to dismiss. (Pl.’s Mem. at 4-7.)

An analysis of the merits of Defendants’ motion requires consideration of (1) the

qualified immunity doctrine, (2) the law as it relates to an individual’s constitutionally

protected rights to speak and to not be arrested without probable cause, and (3) the facts

and circumstances of the incident at issue here as alleged in the complaint.


              1. The Qualified Immunity Doctrine

       At the motion to dismiss stage, a plaintiff must allege sufficient facts to establish

that the defendants are not entitled to qualified immunity. See Bloem, 920 F. Supp. 2d

at 164. “The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)); see also Elkins v. District of Columbia, 690 F.3d 554, 567 (D.C. Cir.

2012) (same). The defendant bears the burden of pleading and proving the defense of

qualified immunity. Harlow, 457 U.S. at 815.

       The two-part test set forth in Saucier v. Katz, 533 U.S. 194 (2001), as modified

by Pearson, governs the qualified immunity analysis. In Saucier, the Supreme Court


                                            17
directed lower courts to determine if “the facts that a plaintiff has alleged or shown

make out a violation of a constitutional right” and also if “the right at issue was ‘clearly

established’ at the time of the defendant’s alleged misconduct.” Pearson, 555 U.S. at

232 (internal citations omitted) (describing Saucier). “As laid out by the Supreme

Court, the two pertinent questions in determining whether qualified immunity applies

are (1) ‘whether a constitutional right would have been violated on the facts alleged,’

and (2) ‘whether the right was clearly established’ at the time of the violation.” Shaw

v. District of Columbia, No. 12-0538, 2013 WL 1943032, at *4 (D.D.C. May 13, 2013)

(quoting Saucier, 533 U.S. at 201)). 6

       For the purpose of determining whether an officer who commits a constitutional

violation is nonetheless entitled to immunity from suit, only a violation of “clearly

established” constitutional rights—those that are apparent “in the light of pre-existing

law”—thwart immunity protection. See Atherton, 567 F.3d at 689-90 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “An official enjoys protection from

a lawsuit ‘where [his or her] conduct is objectively reasonable in light of existing law’”

despite its unconstitutionality. Brown v. Fogle, 819 F. Supp. 2d 23, 28-29 (D.D.C.

2011) (alterations in original) (quoting Farmer v. Moristugu, 163 F.3d 610, 613 (D.C.

Cir. 1998)). “Conversely, an officer is not shielded where he could be expected to

know that certain conduct would violate statutory or constitutional rights.” Id. (internal

quotation marks and citation omitted).



6
  In Pearson, the Supreme Court modified the Saucier analysis to give lower courts discretion to decide
which of the prongs to address first. Pearson, 555 U.S. at 236; accord Reichle, 132 S. Ct. at 2093;
Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009) (“[T]he Saucier sequence is [now] optional and []
lower federal courts have the discretion to decide only the more narrow ‘clearly established’ issue ‘in
light of the circumstances of the particular case at hand.’” (quoting Pearson, 555 U.S. at 236)).

                                                  18
       In sum, to overcome the qualified immunity bar, the facts must establish that the

official violated a right of the plaintiff’s that is protected by the Constitution, and

“existing precedent must have placed the statutory or constitutional question beyond

debate[,]” Al-Kidd, 131 S. Ct. at 2083 (citation omitted), such that a reasonable official

would have understood prior to acting that his conduct violates that right.


              2. The First And Fourth Amendment Rights Not To Be Arrested For
                 Protected Speech And Without Probable Cause

       There is no dispute about the “clearly established” nature of the basic rights at

issue here. The First Amendment right to free speech is a bedrock constitutional

freedom. See R.J. Reynolds Tobacco Co. v. U.S. FDA, 845 F. Supp. 2d 266, 272

(D.D.C. 2012) (“A fundamental tenant of constitutional jurisprudence is that the First

Amendment protects . . . the right to speak freely[.]” (internal quotation marks omitted)

(quoting Wooley v. Maynard, 430 U.S. 705, 714 (1977)). Having a constitutional right

of free speech means that a person cannot be arrested and prosecuted in retaliation for

engaging in protected speech. See Hartman, 547 U.S. at 256 (“[T]he law is settled that

as a general matter the First Amendment prohibits government officials from subjecting

an individual to retaliatory actions, including criminal prosecutions, for speaking

out[.]” (citing Crawford-El v. Britton, 523 U.S. 574, 592 (1998)); City of Houston v.

Hill, 482 U.S. 451, 462-63 (1987) (“The freedom of individuals verbally to oppose or

challenge [] action without thereby risking arrest is one of the principle characteristics

by which we distinguish a free nation from a police state.”). It is also well established

that the freedom to speak without being arrested on account of one’s speech includes

the right to use profanity. Cohen v. California, 403 U.S. 15, 18 (1971); City of

Houston, 482 U.S. at 461 (noting that the First Amendment even protects profane

                                             19
speech directed at police officers); Williams v. District of Columbia, 419 F.2d 638, 646

(D.C. Cir. 1969).

      Moreover, it is clear beyond cavil that, in order to arrest someone in a manner

that satisfies the Fourth Amendment, a police officer must have a warrant or probable

cause to believe that the person has committed, or is engaged in committing, a crime.

Barham v. Ramsey, 434 F.3d 565, 573 (D.C. Cir. 2006) (“[T]o comport with the Fourth

Amendment, a warrantless search or seizure must be predicated on particularized

probable cause.”); Martin v. Malhoyt, 830 F.2d 237, 262 (D.C. Cir. 1987) (“It is well

settled that an arrest without probable cause violates the [F]ourth Amendment.”

(citation omitted)). A probable cause determination is objective and involves

examining “the reasonable conclusion to be drawn from the facts known to the arresting

officer at the time of arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).

“Probable cause exists where the arresting officer possesses information ‘sufficient to

warrant a prudent [officer] in believing that the [suspect has] committed or [is]

committing an offense.’” United States v. Catlett, 97 F.3d 565, 573 (D.C. Cir. 1996)

(alterations in original) (citation omitted). The probable cause analysis is based on the

“‘totality of the circumstances,’ which requires that ‘the police had enough information

to warrant a man of reasonable caution in the belief that a crime has been committed

and that the person arrested has committed it.’” Bolger v. District of Columbia, 608 F.

Supp. 2d 10, 18 (D.D.C. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983) and

Barham, 434 F.3d at 572). The arresting officer’s subjective state of mind is irrelevant

to the inquiry, Devenpeck, 543 U.S. at 153; in other words, “[q]ualified immunity is

appropriate ‘even if [the officer] reasonably but mistakenly concluded that probable



                                            20
cause existed.’” Dormu v. District of Columbia, 795 F. Supp. 2d 7, 19 (D.D.C. 2011)

(quoting Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993)).

      In order prevent criminal punishment for speech in violation of the First

Amendment, statutes that permit the arrest of speakers generally take care to include an

additional element: the speech must implicate a substantial likelihood of violence,

provocation, or disruption. Cf. Gooding v. Wilson, 405 U.S. 518, 525-27 (1972)

(striking down Georgia’s disorderly conduct statute, Ga. Code Ann. § 26-6303, as

construed as Georgia state courts because the court did not require that the speech may

cause a violent response); Wiegand v. Seaver, 504 F.2d 303, 306-07 (5th Cir. 1974)

(striking down Florida’s disorderly conduct statute, F.S. § 877.03, as interpreted by the

Florida Supreme Court, in part because the court did not require that the speech cause

any “actual disruption or disorder”); see, e.g., Diener v. Reed, 77 F. App’x 601, 609 (3d

Cir. 2003) (upholding Pennsylvania’s disorderly conduct statute, 18 Pa. Cons. Stat.

Ann. § 5503(a), as interpreted by the Pennsylvania Supreme Court because a punishable

conduct “hinge[d]” on whether the speech “cause[s] or unjustifiably risk[s] a public

disturbance”); United States v. Jones, 365 F.2d 675, 677-78 (2d Cir. 1966) (upholding

New York State’s disorderly conduct statute, N.Y. Penal L. § 722(2), as interpreted by

the New York Court of Appeals because the court required “circumstances which would

give the color of disorder and violence” to the conduct at issue). The disorderly

conduct provision of the D.C. Code—Patterson’s alleged criminal offense—is no

different. In relevant part, the D.C. Code’s disorderly conduct statute provides:




                                           21
       (a) In any place open to the general public . . . it is unlawful for a person to:

       ...

       (2) Incite or provoke violence where there is a likelihood that such
       violence will ensue; or

       (3) Direct abusive or offensive language or gestures at another person
       (other than a law enforcement officer while acting in his or her official
       capacity) in a manner likely to provoke immediate physical retaliation or
       violence by that person or another person.

D.C. Code § 22-1321(a); see also id. § 22-1321(b) (“It is unlawful for a person to

engage in loud, threatening, or abusive language, or disruptive conduct, with the intent

and effect of impeding or disrupting the orderly conduct of a lawful public

gathering[.]”).

       As required to comply with the First Amendment, the D.C. Code’s disorderly

conduct provision clearly requires more than offensive speech—an individual’s speech

must threaten a breach of the peace in order to constitute a crime. See Williams, 419

F.2d at 646; Martinez v. District of Columbia, 987 A.2d 1199, 1203 (2010) (noting that

a conviction for disorderly conduct under the D.C. Code based on profane speech

“could survive a First Amendment attack only if it could be interpreted to include an

additional element: that the language is spoken in circumstances which threaten a

breach of the peace” (citation omitted)). Courts interpreting the D.C. Code have

clarified that such a “breach of the peace” occurs only when the speaker’s language

(including the use of profanity) “creates a substantial risk of provoking violence,”

Williams, 419 F.2d at 646; Dormu, 795 F. Supp. 2d at 21 (“Circumstances in which a

breach of the peace may be occasioned include where an individual’s words are likely

to produce violence on the part of others[.]” (citation omitted)); see also Martinez, 987



                                             22
A.2d at 1202 (same). In other words, the statute codifies the First Amendment’s

requirement that mere offensive or disturbing speech is not enough to warrant an arrest.

Chemalali v. District of Columbia, 655 A.2d 1226, 1228 (D.C. 1995)

      Indeed, as quoted above, the D.C. Code’s disorderly conduct provision goes even

further to protect speakers insofar as it makes clear that the offensive and provocative

speech must be directed at someone other than a police officer in order to rise to the

level of criminally punishable disorderly conduct. See D.C. Code § 22-1321(a)(3)

(exempting from punishment speech that is directed at “a law enforcement officer while

acting in his or her official capacity”). This provision was added to the Code in 2011—

the year before Patterson’s arrest—purportedly to “minimiz[e] ‘contempt of cop’

arrests” and thereby reduce the widespread practice of police officers using the

disorderly conduct law to arrest individuals indiscriminately and without a legitimate

basis. See Disorderly Conduct Arrest Project Subcommittee of the Council for Court

Excellence, Revising the District of Columbia Disorderly Conduct Statute: A Report &

Proposed Legislation (Oct. 14, 2010), attached to D.C. Council Comm. On Pub. Safety

& the Judiciary, Report on Bill 18-425, 70 (2010), available at

http://dcclims1.dccouncil.us/images/00001/20110128161004.pdf [hereinafter “Council

Report]. According to the report that accompanied the amendment, the D.C. Council

wanted police officers to recognize that “the crime of using abusive or offensive

language must focus on the likelihood of provoking a violent reaction by persons other

than a police officer to whom the words were directed.” Council Report at 8 (emphasis

added). This tenet is also reflected in case law interpreting the statute. See Dormu, 795

F. Supp. 2d at 21 (“[D]isorderly conduct does not occur merely because a crowd gathers



                                            23
to watch a citizen-police encounter.” (citation omitted)); Shepherd v. District of

Columbia, 929 A.2d 417, 419 (D.C. 2007) (“[T]he focus ordinarily must be on the

likelihood of a violent reaction by persons other than a police officer to whom the

words were directed, because a police officer is expected to have a greater tolerance for

verbal assaults and is especially trained to resist provocation by verbal abuse that might

provoke or offend the ordinary citizen.” (internal quotations marks, alterations, and

citations omitted)).

       Significantly, the First and Fourth Amendment are both implicated

simultaneously in a situation in which a speaker is allegedly arrested in retaliation for

speech alone in the absence of any likelihood of violence, provocation, or disruption.

Such an arrest would clearly violate the First Amendment. See City of Houston, 482

U.S. at 461; Cohen, 403 U.S. at 15. And it would also constitute a Fourth Amendment

violation insofar as the criminal statute upon which the arrest is based would likely

require a risk of violence or provocation or disruption in order to comport with the First

Amendment, and thus the arresting officer in the posited situation would not have

probable cause to believe that the speaker was committing a crime. See, e.g., Dormu,

795 F. Supp. 2d at 21; Wesby v. District of Columbia, 841 F. Supp. 2d 20, 34-35

(D.D.C. 2000).


              3. No Reasonable Officer Could Have Believed That Patterson’s Use Of
                 Profanity Constituted Disorderly Conduct Under The Facts Alleged

       Given the clearly established law that governs free speech and permissible

arrests for disorderly conduct, and also taking the facts alleged in Patterson’s complaint

as true and drawing all inferences in Patterson’s favor, see Iqbal, 556 U.S. at 663, 678,

no reasonable officer could conclude that Patterson’s conduct was likely to produce

                                            24
violence or otherwise cause a breach of the peace, as required to justify either punishing

his speech under the First Amendment or arresting him for disorderly conduct. See

Dormu, 795 F. Supp. 2d at 21.

       There is a significant body of jurisprudence that addresses the confluence of

these First and Fourth Amendment violations in the context of arrests for disorderly

conduct under the D.C. Code, and these cases outline the parameters of permissible

police action in circumstances that are similar to those at issue here. For example, in

Chemalali, a police officer arrested an individual who had been walking behind a group

of people hitting and kicking them, and when the officer warned him to stop, the man

began yelling and cursing at the officer and a nearby citizen. 655 A.2d at 1227. Once a

crowd had gathered, the individual began comparing the situation to the Los Angeles

riots and enticing the crowd to join in to protest the officers’ actions. Id. The D.C.

Court of Appeals found that the police had probable cause to arrest the individual for

disorderly conduct because his words and actions were likely to produce violence on the

part of others. Id. at 1228-29. Other courts have reached the same conclusion under

similar circumstances. See, e.g., Gilles v. Davis, 427 F.3d 197, 206 & n.6 (3rd Cir.

2005) (finding that a reasonable officer could have found probable cause to arrest an

individual for disorderly conduct where the individual’s “rude, mocking,

confrontational, and insulting” speech directed toward members of a crowd that had

gathered resulted in “genuine hostility” in that crowd, including one person who threw

an apple at the individual); Smith v. McCluskey, 126 F. App’x 89, 94 (4th Cir. 2005)

(finding that a reasonable officer could have found probable cause to arrest an

individual for disorderly conduct where a crowd gathered after the individual had been



                                            25
arrested, and he screamed at the crowd that he was being “treated like Rodney King,”

which was intended to incite concerns of police brutality and provoke the crowd).

       By contrast, in Shepherd, a police officer issued a ticket to the defendant for not

paying to enter the D.C. Metro, and the defendant began yelling and cursing at the

officer. 929 A.2d at 418. After drawing a crowd, the defendant continued to yell and

curse at the officer, who arrested the defendant for disorderly conduct. Id. The

defendant was later convicted. Id. The D.C. Court of Appeals overturned the

conviction, finding insufficient evidence to show that the defendant’s actions were

calculated to lead to a breach of the peace. Id. at 419-20. The court held that there was

no probable cause for the defendant’s arrest in the first instance, because the “bare

possibility” of provoking violence from others based on profanity directed towards a

police officer does not constitute disorderly conduct. Id. at 419. Rather, disorderly

conduct occurs when an individuals’ actions directed towards a crowd create a

“likelihood or probability” of a violent response from the crowd. Id.

       In this case, according to the complaint (which must be regarded as stating true

facts at this point in the litigation), Patterson cursed quietly while looking up at the sky

in an almost empty park. (Compl. ¶ 9.) The complaint alleges that the Tea Party

supporters did not react to Patterson’s statements at all, and certainly not in any way

that would cause a reasonable officer to conclude that there was any real threat of a

violent reaction. (See id. ¶¶ 9-10.) As the complaint relays the events, this first

instance of profanity is the only one that could possibly be construed as directed

towards the crowd; all subsequent profanity was directed solely towards the officers

(see id. ¶¶ 11-14), and, as such, cannot serve as the basis for probable cause in this



                                             26
context. See Shepherd, 929 A.2d at 418; see also Council Report at 8 (“[T]he crime of

using abusive or offensive language must focus on the likelihood of provoking a violent

reaction by persons other than a police officer to whom the words were directed[.]”).

But even considering the later instances of profanity that Patterson uttered once the Tea

Party supporters had noticed him, cursing at an officer in the presence of a crowd,

without some indication of a likely violent reaction from that crowd, does not give rise

to probable cause to believe that the speaker is engaged in disorderly conduct. Cf.

Shepherd, 929 A.2d at 418; Dormu, 795 F. Supp. 2d at 21.

      Sergeant Reid’s alleged subsequent comment that Patterson had created a

“hostile environment” for the police, which is quoted in the complaint (Compl. ¶ 17),

does not help Defendants as far as their claims of qualified immunity are concerned.

Sergeant Reid’s comment is clearly a statement of opinion, rather than fact, and the

complaint’s factual recitation belies Sergeant Reid’s stated opinion in this regard.

There are no facts alleged in the complaint that indicate that the Tea Party supporters

had any reaction to Patterson’s profanity or his back-and-forth with Sergeant Reid, let

alone a reaction that manifested an imminent breach of the peace. Patterson does not

allege that his profanity was directed towards the Tea Party supporters, nor that they

were in any way provoked to violence; indeed, the alleged incident is, at most, best

characterized as the same type of “contempt of cop” expression that the disorderly

conduct statute was carefully crafted to permit in light of the First Amendment.

      In short, because no reasonable officer could conclude that there was probable

cause to believe that Patterson was committing disorderly conduct on the facts as

alleged in the complaint, the complaint ably supports the claim that Patterson was



                                            27
arrested in retaliation for his protected speech and that the individual officers therefore

violated Patterson’s clearly established First and Fourth Amendment rights. 7

Consequently, the individual defendants have not satisfied Saucier’s qualified immunity

test.

        Undaunted, the individual defendants strenuously dispute the “clearly

established” nature of Mr. Patterson’s alleged First Amendment right to be free from

retaliatory arrest under the circumstances presented in the complaint. (See Defs.’ Mot.

at 5.) But this argument plainly puts the cart before the horse because the constitutional

right that Defendants deem unclear and unestablished is the right to be free from a

retaliatory arrest that is otherwise supported by probable cause. (Id. at 4-5.) Plaintiffs

make no such allegation here, and Defendants do not address whether the right to be

free of retaliatory arrest in the absence of probable cause is clearly established.

Moreover, as explained above, it is clear from the D.C. Circuit’s Dellums opinion that

the right to be free from a retaliatory arrest in the absence of probable cause is clearly

established in this jurisdiction. In other words, in the D.C. Circuit, a police officer is

unquestionably on notice that arresting a speaker solely based on the content of his

speech and without probable cause to believe that he has committed a crime is a

violation of the First Amendment. See Dellums, 566 F.2d at 194-95.



7
 Although the complaint does not use the term “retaliation,” it specifically alleges that Patterson was
arrested “solely on account of the content of his speech” and that Sergeant Reid not only lacked
probable cause to arrest Patterson but also that Sergeant Reid “would not have arrested Mr. Patterson
but for Mr. Patterson’s engaging in protected conduct.” (Compl. ¶ 22.) This is sufficient to establish a
claim for retaliatory arrest on the basis of protected speech in violation of the First and Fourth
Amendments. See Reichle, 132 S. Ct. at 2096 (noting that to state a claim for retaliatory arrest, the
plaintiff must establish a causal connection between an officer’s animus and the injurious arrest); cf.
Bergdoll v. City of York, 515 F. App’x 165, 170 (3d Cir. 2013) (finding that, on summary judgment, a
plaintiff’s First Amendment retaliatory arrest claim fails where “she cannot show that her speech was
the but-for cause of her arrest”).

                                                   28
       Accordingly, Defendants’ argument that the First Amendment claim here must be

dismissed on qualified immunity grounds, because the relevant right is not “clearly

established” or otherwise, cannot be accepted. The complaint alleges that Patterson was

arrested solely on the basis of his speech (Compl. ¶¶ 22, 23) and that there was no

probable cause for his arrest for disorderly conduct because his comments “did not

cause or threaten to cause either a breach of the peace” or “violence on the part of

others.” (Compl. ¶¶ 18, 22-23). In addition, this Court has examined the complaint’s

factual allegations and has concluded that no reasonable officer could have found

probable cause for Patterson’s arrest on the facts alleged, which at this point in the

litigation must be accepted as true. This is enough for Counts I and II to withstand

Defendants’ motion to dismiss.


IV.    CONCLUSION

       For the foregoing reasons, Patterson’s complaint states a plausible claim for

relief based on the individual officers’ alleged violations of the First and Fourth

Amendment, and the officers are not entitled to qualified immunity as to either Count I

or Count II. Consequently, the individual defendants’ motion to dismiss is DENIED.

Pursuant to Federal Rule of Civil Procedure 12(a)(4), the individual defendants shall

file a responsive pleading by January 20, 2014.


DATE: December 19, 2013                           Ketanji Brown Jackson
                                                  KETANJI BROWN JACKSON
                                                  United States District Judge




                                            29
