                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

ROBERT FRAZIER,           :
                          :
              Plaintiff,  :
                          :
         v.               :                   Civil Action No. 06-615 (GK)
                          :
EDWINA WILLIAMS, et al.,  :
                          :
              Defendants. :


                                 MEMORANDUM OPINION

       Plaintiff Robert Frazier (“Plaintiff”) brings this action against Defendants Edwina Williams

(“Detective Williams”) and the District of Columbia, pursuant to 42 U.S.C. § 1983. This matter is

now before the Court on Defendants’ Motion for Summary Judgment [Dkt. No. 61]. Upon

consideration of the Motion, Opposition, Reply, Surreply, the entire record herein, and for the

reasons set forth below, Defendants’ Motion for Summary Judgment is granted.

I.     BACKGROUND 1

       This law suit concerns an altercation at a downtown District of Columbia night club called

LaCage, where Plaintiff worked as a “go-go boy.” LaCage is widely perceived and had the

reputation of being a gay nightclub which featured male entertainers who danced on a stage and on

bar tops. Pl. Compl. ¶ 9.




       1
                Unless otherwise noted, the facts set forth herein are undisputed and drawn from the
parties’ Statements of Undisputed Material Facts submitted pursuant to Local Civil Rule 7(h) and
the parties’ summary judgment papers.
       While there is substantial dispute about many of the facts, the following are undisputed. In

the early morning of February 16, 2003,2 Plaintiff completed his performance, dressed in street

clothes, and joined the customers in the bar area of the nightclub. Plaintiff believed that two men

in the audience had been criticizing or disparaging his performance as he danced. An altercation

then occurred between Plaintiff and the two audience members he thought were criticizing his

performance, who were later identified as Jonathan Tart and Shane Kline.

       While it is undisputed that Plaintiff touched Kline first, and without consent, Plaintiff ended

up being assaulted and suffering some physical injury, the extent of which is also disputed. There

is contradictory evidence about whether Kline and Tart had or had not been drinking heavily. The

next day, Plaintiff telephoned Sgt. Brett Parsons of the Metropolitan Police Department (“MPD”)

Gay and Lesbian Liaison Unit, and described the incident to him. At that time, Plaintiff was

uncertain about pressing charges, because he did not want bad publicity or exposure for his employer

and because his injuries did not appear to be permanent. The next day, Tart and Kline made their

own reports to MPD claiming that Plaintiff had attacked Kline, and Kline swore out a complaint

against Plaintiff for simple assault.

       Defendant, Detective Edwina Williams, was assigned to investigate the incident. She

interviewed all three parties and spoke with Sgt. Parsons. There is much dispute about the details

of Detective Williams’ investigation and how it was conducted. Ultimately, she prepared an

affidavit in support of a warrant for Plaintiff’s arrest. On March 31, 2003, Assistant United States




       2
             There is some dispute about whether the incident occurred on February 16 or 17,
2003; however, the difference is immaterial and the date alleged in the Complaint will be used.

                                                 -2-
Attorney Catherine Worthington reviewed and approved the affidavit and a warrant was issued for

Plaintiff’s arrest.

        Detective Williams called Plaintiff, at his home in Pennsylvania, to inform him that the

warrant had been issued. Plaintiff agreed to turn himself in the next morning and did so. The

Plaintiff was detained and incarcerated overnight and released the day after he had turned himself

in. On that same day, the U.S. Attorney’s Office informed the arraignment court that it was entering

a nolle prosequi, thereby dismissing the case.

        On April 3, 2006, Plaintiff filed the present one-count Complaint pursuant to 42 U.S.C. §

1983. Plaintiff alleged that Detective Williams violated his Fourth Amendment right to be free from

unreasonable searches and seizures, that Detective Williams violated his Fifth Amendment right “not

to experience invidious discrimination” and that the District of Columbia is responsible for Detective

Williams’ “wrongdoing under principles of municipal liability.” Compl., ¶ 34-36.

II.     STANDARD OF REVIEW

        Summary judgment may be granted “only if” the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c), as

amended December 1, 2007; Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). In

other words, the moving party must satisfy two requirements: first, demonstrate that there is no

“genuine” factual dispute and, second, that if there is, it is “material” to the case. “A dispute over

a material fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Arrington, id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248




                                                 -3-
(1986)). A fact is “material” if it might affect the outcome of the case under the substantive

governing law. Liberty Lobby, 477 U.S. at 248.

       In its most recent discussions of summary judgment, in Scott v. Harris, 550 U.S. 372, 380

(2007), the Supreme Court said:

               [a]s we have emphasized, “[w]hen the moving party has carried its
               burden under Rule 56(c), its opponent must do more than simply
               show that there is some metaphysical doubt as to the material
               facts. . . . Where the record taken as a whole could not lead a rational
               trier of fact to find for the nonmoving party, there is no ‘genuine issue
               for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
               U.S. 574, 586-87 . . . (1986) (footnote omitted). “[T]he mere
               existence of some alleged factual dispute between the parties will not
               defeat an otherwise properly supported motion for summary
               judgment; the requirement is that there be no genuine issue of
               material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
               48 . . . (emphasis in original).

       However, the Supreme Court has also consistently emphasized that “at the summary

judgment stage the judge’s function is not . . . to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249.

In both Liberty Lobby and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000),

the Supreme Court cautioned that “[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts, are jury functions, not those of a judge” deciding

a motion for summary judgment. Liberty Lobby, 477 U.S. at 255. “To survive a motion for

summary judgment, the party bearing the burden of proof at trial . . . must provide evidence showing

that there is a triable issue as to an element essential to that party’s claim. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).” Arrington, 473 F.3d at 335.




                                                 -4-
III.    ANALYSIS

        A.      Defendant Detective Williams Is Entitled to Qualified Immunity

        The Supreme Court emphasized in Saucier v. Katz, 533 U.S. 194, 200-01 (2001), that

qualified immunity is a question of law which the court should decide “at the earliest possible stage

in litigation.” Consequently, it is the first issue to which the Court will now turn.3

        In Pearson v. Callahan, __ U.S. __, 129 S. Ct. 808, 815 (2009), the Supreme Court gave the

following succinct overview of the qualified immunity doctrine:

                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.” Harlow v Fitzgerald, 457
                U.S. 800, 818 . . . (1982). Qualified immunity balances two
                important interests -- the need to hold public officials accountable
                when they exercise power irresponsibly and the need to shield
                officials from harassment, distraction, and liability when they perform
                their duties reasonably. The protection of qualified immunity applies
                regardless of whether the government official’s error is “a mistake of
                law, a mistake of fact, or a mistake based on mixed questions of law
                and fact.” Groh v. Ramirez, 540 U.S. 551, 567 . . . (2004) (Kennedy,
                J. dissenting) (citing Butz v. Economou, 438 U.S. 478, 507 . . . (1978)
                (noting that qualified immunity covers “mere mistakes in judgment
                whether the mistake is one of fact or one of law.”).

        Under pre-existing precedent, the Court had required the lower courts to first determine

whether the facts alleged by a plaintiff made out a violation of a constitutional right and if they did,

to then determine whether the asserted right was “clearly established” at the time of the violation.



        3
                 It is hard to understand why the Defendants waited until two years after this lawsuit
was filed to raise the issue of qualified immunity. As the Supreme Court has reiterated, it should be
ruled on before defendants are put to the expense and inconvenience of discovery, motions practice,
and, of course, trial. Saucier, 533 U.S. at 200 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)
(“we repeatedly have stressed the importance of resolving immunity questions at the earliest possible
stage in litigation”)).

                                                  -5-
Saucier, 533 U.S. at 201. In Pearson, the Supreme Court “ruled that the Saucier sequence is optional

and that lower federal courts have the discretion to decide only the more narrow ‘clearly established’

issue ‘in light of the circumstances in the particular case at hand.’” Rasul v. Myers, 563 F.3d 527,

530 (D.C. Cir. 2009) (quoting Pearson, 129 S. Ct. at 818). In this case, the Court sees no reason not

to first address the first question asked in Saucier, namely whether “[t]aken in the light most

favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated

a constitutional right?” Saucier, 533 U.S. at 201. Thus, the first question to be answered is what,

if any, constitutional right has been violated.

       Plaintiff argues that his Fourth Amendment constitutional right to be free from unreasonable

searches and seizures has been violated because of the manner in which Detective Williams

conducted her investigation of the altercation at the LaCage club, and because the affidavit she

prepared to support her request for an arrest warrant was false, misleading, and designed to obtain

Plaintiff’s false arrest and wrongful prosecution. In the case of a constitutional false arrest claim,

a police officer is entitled to qualified immunity if “a reasonable officer could have believed that

probable cause existed to arrest.” Hunter, 502 U.S. at 228. “The qualified immunity standard ‘gives

ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who

knowingly violate the law.” Id. at 229 (quoting Malley v. Briggs, 475 U.S. 335 (1986)). Thus, an

officer who “‘reasonably but mistakenly conclude[s] that probable cause is present’” is not liable for

making the arrest. Hunter, id. (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

       In this case, assuming the accuracy of Plaintiff’s Statement of Material Facts Not in Dispute,

there is no question that the facts and circumstances surrounding Detective Williams’ investigation

would have justified a reasonable police officer in her position to conclude that Plaintiff’s arrest was


                                                  -6-
supported by probable cause. Detective Williams interviewed two different antagonists with two

conflicting versions of how an altercation occurred, of who touched who first, and of the manner and

impact of the touching. For purposes of evaluating the reasonableness of Detective Williams’

conduct, it is most significant that Plaintiff admits that he first touched Kline on the night in

question, and did so without his permission or consent. Defs.’ St. of Material Fact, ¶ 8, 9. Moreover,

it is undisputed that Detective Williams believed that, in the District of Columbia, such a movement

constituted an “unwanted touching,” which is an assault under the law of the District of Columbia.

Id., ¶ 36.

        In Brosseau v. Haugen, 543 U.S. 194, 197 (2004), the Supreme Court made it clear that

“[q]ualified immunity shields an officer from suit when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law governing the circumstances she

confronted. . . . If the law at that time did not clearly establish that the officer’s conduct would

violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of

litigation.” 543 U.S. at 198. The Court emphasized that “this inquiry ‘must be undertaken in light

of the specific context of the case.’” Id. (quoting Saucier, 533 U.S. at 201). Plaintiff has failed to

clearly establish that the arrest for assault, under the particular facts of this case and the law of the

District of Columbia, lacked probable cause, and has failed to cite any case law in support of that

proposition.

        The District of Columbia cites Daniels v. City of New York, 2003 WL 22510379, *3

(S.D.N.Y. 2003), in support of its position. In that case, the district court said that “[t]o the extent

that the officers encountered two people who each appeared credible and who each claimed to be the

victim of assault by the other, the police had probable cause to arrest either plaintiff or Pagalisi or


                                                  -7-
both.” See also Dahl v. Holley, 312 F.3d 1228, 1234 (11th Cir. 2002); Wright v. City of

Philadelphia, 409 F.3d 595, 603 (3d Cir. 2005). That is precisely the situation which Detective

Williams faced. She encountered Plaintiff and Kline, who both appeared credible to her, and who

each claimed to be the victim of assault by the other. At that point, under Daniels, Detective

Williams had probable cause to arrest either the Plaintiff or Kline.

       Finally, Plaintiff, himself, admits that:

               It is the policy of the District of Columbia that a light tapping of
               someone’s shoulder to get that person’s attention constitutes simple
               assault and can justify an arrest if the person who was tapped
               subsequently claims to be offended, even if there is no harm.

Plaintiff’s Counter-Statement of Facts, pursuant to LCvR 56.1, Part I, ¶ 6.

       Plaintiff’s admission demonstrates that Detective Williams was acting in conformity with

District of Columbia policy when she obtained a warrant for the arrest of Plaintiff, and therefore

further supports the conclusion that Plaintiff’s arrest was supported by probable cause. It must

always be remembered that probable cause is evaluated “‘from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.’” Wolfe v. Perry, 412 F.3d 707, 717

(6th Cir. 2005); (quoting Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001)); Moorehead v. District

of Columbia, 747 A.2d 138, 147 (D.C. 2000) (in determining probable cause, “the court evaluates

the evidence from the perspective of the officer, not the plaintiff”).

       In summary, Plaintiff has failed to demonstrate that the officer was violating the Fourth

Amendment in the situation she confronted. Given all the facts and circumstances, Detective

Williams acted reasonably in concluding that probable cause existed to justify the issuance of an

arrest warrant. Consequently, she is entitled to qualified immunity.



                                                   -8-
       B.      Plaintiff Cannot Establish the Existence of Any Policy or Custom of the
               Metropolitan Police Department Which Caused His Allegedly Unconstitutional
               Arrest

       As already established, Detective Williams’ conduct, as alleged by Plaintiff, did not violate

a constitutional right. Even if it did, however, Plaintiff cannot prevail on his claim that the District

of Columbia is responsible for Detective Williams’ conduct “under principles of municipal liability.”

Compl., ¶ 36. Under the long established principles set forth in Monell v. Dept. of Soc. Servs. of

the City of New York, 436 U.S. 658, 694 (1978), the District of Columbia can only be held liable

for a plaintiff’s successful constitutional claims if the injury itself was caused by a policy or custom

of the District of Columbia government. The Supreme Court has explained that, “at the very least

there must be an affirmative link between the policy and the particular constitutional violation

alleged.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985).

       Here, viewing those facts which are undisputed, it is clear that there is no such District of

Columbia policy or custom. Thus, there can be no “affirmative link” between any District of

Columbia policy and any alleged constitutional violation by Detective Williams. At most, Plaintiff

alleges that he was mistreated by a single police officer. There is absolutely no evidence from which

any reasonable jury could conclude that Plaintiff’s alleged injury was caused by a custom or policy

of the District of Columbia. Indeed, Plaintiff’s own words refute any such argument. According to

him:

               other than Detective Williams, ALL of the MPDC personnel with
               whom I came in contact regarding this incident . . . were uniformly
               sensitive, interested and concerned for the safety and security of my
               person and property.




                                                  -9-
Ex. E, Pl’s MPD Complaint. Plaintiff even recommended that “appropriate commendations be

issued for the effective and responsible actions taken by” other police officers with whom he came

into contact. Id.

       Consequently, Plaintiff cannot prevail on his municipal liability claims and the District of

Columbia should be dismissed as a Defendant in this action.4

       For all the foregoing reasons, Defendants’ Motion for Summary Judgment is granted.




June 2, 2009                                           /s/
                                                       Gladys Kessler
                                                       United States District Judge


Copies via ECF to all counsel of record




       4
                Plaintiff also alleges in Count 1, ¶ 35, that Detective Williams violated his rights
“under the Fifth Amendment not to experience invidious discrimination.” He contends, at ¶ 4 of the
Complaint, that “Defendant Williams was motivated by animus against the Plaintiff because she
perceived him to be gay and by her biases perceived from the nature of his employment as an
entertainer.” There is no authority holding that Plaintiff’s status as an entertainer may provide the
basis for an equal protection claim under the Fifth Amendment. In addition, it is far from established
that “perceived sexual orientation” can provide the basis for a Constitutional claim. See Steffan v.
Perry, 41 F.3d 677 (D.C. Cir. 1994).

                                                -10-
