                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


MAKHI WHITTAKER

          Plaintiff,

          v.                         Civ. No. 17-1983 (EGS)

CHRISTIAN MUNOZ, in his
Individual capacity

          Defendant.

                          MEMORANDUM OPINION

     Plaintiff Makhi Whittaker brings this action under 42

U.S.C. § 1983, alleging violations of his constitutional rights

when defendant Christian Munoz, an MPD Officer, allegedly

arrested Mr. Whittaker without probable cause in violation of

the Fourth Amendment. Mr. Whittaker also alleges that Officer

Munoz violated his First Amendment rights by arresting him in

retaliation for his speech. Officer Munoz moves for summary

judgment arguing that Mr. Whittaker fails to show a violation of

the Constitution, and, alternatively, even if there was a

violation, qualified immunity precludes this lawsuit. Upon

consideration of Officer Munoz’s motion for summary judgment,

the response and reply thereto, the applicable law, and the

entire record, the Court will GRANT Officer Munoz’s motion for

summary judgment.
I. Background 1

     Mr. Makhi Whittaker, a high school student, was arrested

after boarding a metrobus on the afternoon of March 22, 2017.

See Statement of Undisputed Facts (“SOF”), ECF No. 19-1 at 23. 2

Mr. Whittaker was not in school that day because he had a

doctor’s appointment. Id. Mr. Whittaker and his girlfriend,

Sheila Shelton, began the day by going to Ms. Shelton’s home to

visit her family. Id. They left Ms. Shelton’s home in the

afternoon, at which point they had plans to go to the Northeast

section of the city so Mr. Whittaker could sell a videogame at a

local store. Id. at 23–24.

     To get to Northeast, Mr. Whittaker and Ms. Shelton

attempted to catch a metrobus at the Minnesota Avenue Metro

Station. Id. at 24. Once the metrobus arrived, Mr. Whittaker and

Ms. Shelton entered the metrobus along with other

schoolchildren, some in uniform and some not. Id. Mr. Whittaker

was not in uniform that day because he did not go to school. Id.

Mr. Whittaker and Ms. Shelton did not pay the bus fare and did

not show the bus driver a “D.C. One Card” which allows students

in the District of Columbia to ride the metrobus for free if

they are going to or from school, or a school-related activity.


1 Unless otherwise noted, the following facts are undisputed.
2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number not the
page number of the filed document.
                                2
Id. Mr. Whittaker was waived onto the bus by the driver as the

driver was letting other students onto the bus. 3 Mr. Whittaker

went on the bus without paying a fare, and he and Ms. Shelton

boarded the bus. Id. at 25.

     Meanwhile, Officer Munoz, an MPD Officer, was patrolling

the Minnesota Avenue Metro Station, an area that has had

problems in the past with fare evasion. Id. at 24. He was

patrolling the station when Mr. Whittaker and Ms. Shelton

arrived. Id. at 24. Officer Munoz observed Mr. Whittaker enter

the bus without paying the fare and without displaying a D.C.

One Card. Id. at 25. Officer Munoz ordered them both to exit the

metrobus and arrested Mr. Whittaker for fare evasion by placing

him in handcuffs. Id. The parties disagree about what Mr.

Whittaker said to Officer Munoz and when; however the parties do

agree that Mr. Whittaker asked why he was being put in handcuffs

and also asked Officer Munoz to explain what probable cause he

had to arrest him. Id. at 26. Officer Munoz searched Mr.

Whittaker incident to the arrest. Id. Mr. Whittaker was released

the next day and was not charged with a crime. Compl., ECF No. 1

¶ 46.




3 The parties dispute whether the bus driver waived any
passengers on to the bus. This disputed fact, however, is not
material.
                                3
     Thereafter, Mr. Whittaker filed this lawsuit alleging

violations of the First and Fourth Amendments and seeking

compensation pursuant to 42 U.S.C. § 1983. See generally id.

After a short discovery period, Officer Munoz moved for summary

judgment against all claims. Def.’s Mot., ECF No. 17. Mr.

Whittaker filed his opposition, ECF No. 19, and Officer Munoz

has filed a reply, ECF No. 22. This motion is ripe for

disposition.

II. Legal Standard

     Under Federal Rule of Civil Procedure 56, summary judgment

should be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); Waterhouse

v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). The

moving party must identify “those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(internal

quotation marks omitted).

     Once the moving party has met its burden, the non-moving

party must come forward with specific facts that would present a

genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). A genuine dispute exists

                                4
if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Any inferences drawn on the

facts must be viewed in the light most favorable to the

nonmoving party. See Matsushita, 475 U.S. at 587. A party

asserting that a fact is “genuinely disputed” must support that

assertion by “citing to particular parts of materials in the

record” or “showing that the materials cited [by the opposing

party] do not establish the absence ... of a genuine dispute.”

Fed. R. Civ. P. 56(c)(1). “If a party ... fails to properly

address another party's assertion of fact,” the court may

“consider the fact undisputed for purposes of the motion.” Fed.

R. Civ. P. 56(e); see also Local Civ. R. 7(h).

III. Analysis

     Mr. Whittaker has sued Officer Munoz under Section 1983

alleging several violations of his constitutional rights. See

generally, Compl., ECF No. 1. Specifically, he alleges

violations of the Fourth Amendment right to be free from

unreasonable search and seizure 4; and the First Amendment’s


4 Mr. Whittaker also initially brought a claim for violation of
the Fourth Amendment’s prohibition against the use of excessive
force. Compl., ECF No. 1 at 10–11. However, he has conceded that
“his claim for excessive force must fail and that summary
judgment should be granted to Defendant Munoz with respect to
such claim.” Pl.’s Opp’n, ECF No. 19-1 at 5 n.1. The Court
agrees, Mr. Whittaker has failed to provide support for his
allegation that he suffered an injury from the use of force, and
                                5
prohibition against retaliatory arrest. Id. at 7–10. Officer

Munoz alleges that both claims fail because he had probable

cause to arrest Mr. Whittaker. See generally Def.’s Mot., ECF

No. 17.

     Mr. Whittaker does not dispute the fact that his claims

fail if Officer Munoz had probable cause to arrest him; nor can

he. An arrest supported by probable cause does not violate the

Fourth Amendment’s prohibition against unreasonable search and

seizure. See Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001)(“If an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in

his presence, he may, without violating the Fourth Amendment,

arrest the offender.”). As for the First Amendment claim, at the

time of Mr. Whittaker’s arrest, the Supreme Court had held that

it “has never recognized a First Amendment right to be free from

a retaliatory arrest that is supported by probable cause.”

Reichle v. Howards, 566 U.S. 658, 664–65 (2012). The Court

recently addressed this issue in Nieves v. Bartlett, in which it

held that, generally, a First Amendment retaliatory arrest claim

fails as a matter of law when an officer has probable cause to

arrest. 5 139 S.Ct. 1715, 1726 (2019). Accordingly, if this Court



therefore his excessive force claim fails as a matter of law.
See Garay v. Liriano, 943 F. Supp. 2d 1, 19 (D.D.C).
5 The Supreme Court identified one circumstance when probable

cause to arrest may not defeat a claim for retaliatory arrest
                                6
finds that Officer Munoz had probable cause to arrest Mr.

Whittaker, both the Fourth and First Amendment claims fail as a

matter of law. The Court discusses each claim in turn.

     A. Fourth Amendment Claim: Unlawful Search and Arrest

     An arrest is supported by probable cause “when known facts

and circumstances are sufficient to warrant [an officer] of

reasonable prudence in the belief that an offense has been or is

being committed.” United States v. Davis, 458 F.2d 819, 821

(D.C. Cir. 1972). The existence of probable cause thus turns on

objective considerations, rather than the actual mental state of

the arresting officer. See, e.g., United States v. Jackson, 415

F.3d 88, 91 (D.C. Cir. 2005). The probable cause standard does

“not demand any showing that such a belief be correct or more

likely true than false.” Texas v. Brown, 460 U.S. 730, 742

(1983). “To determine whether [an officer] had probable cause to

believe that [a plaintiff was] violating District of Columbia

law, we look to District law to identify the elements of each of

those offenses.” McGovern v. George Washington University, 245

F. Supp. 3d 167 (D.D.C. 2017)(citation and internal quotation

marks omitted).




under the First Amendment. This circumstance is where officers
have probable cause to make arrests, “but typically exercise
their discretion not to do so.” Nieves, 139 S.Ct. at 1727.
                                7
     Based on the undisputed facts in this case, the Court is

satisfied that Officer Munoz had probable cause to arrest Mr.

Whittaker. Under District of Columbia law, it is a crime to ride

the metrobus without paying a fare. D.C. CODE § 35-216. The

relevant provision of the D.C. Code states as follows: “[n]o

person shall . . . knowingly board a public or private passenger

vehicle for hire, including vehicles owned and/or operated by

the Washington Metropolitan Area Transit Authority . . . without

paying the established fare or presenting a valid transfer for

transportation on such public passenger vehicle.” Id. 6 Although

students are not charged a fare when taking an eligible bus

trip, a student is expressly prohibited from using “his or her

Student Rider Card . . . for trips that are not eligible for a

student trip.” 18 DCMR § 1799.1. Absent an eligible trip, a

student must pay full bus fare in the District of Columbia.

     It is undisputed that Mr. Whittaker was not in his school

uniform, and was not going to school or engaged in a school-

related activity. See SOF, ECF No. 19-1 at 23–24. It is also

undisputed that when he entered the metrobus, he did not pay the

bus fare, nor did he show his D.C. One Card. Id. at 25.

Accordingly, the probable-cause question boils down to whether




6 A violation of § 35-216 is “punishable by a fine of not more
than $300, by imprisonment for not more than 10 days or both.”
D.C. CODE § 35-253.
                                8
it was reasonably prudent for Officer Munoz to conclude that Mr.

Whittaker was committing the crime of fare evasion. Under these

circumstances, faced with the fact that he was in an area known

for fare evasion, he observed a person who was not in a school

uniform enter a bus and not pay a fare or present a D.C. One

Card, the Court concludes that Officer Munoz had a reasonable

belief that the offense of fare evasion was being committed.

Therefore, Mr. Munoz had probable cause to make the arrest.

     Mr. Whittaker makes several arguments for why Officer

Munoz’s actions were not supported by probable cause, but each

are foreclosed by precedent. He first argues that there was no

evidence that he knowingly violated the intent requirement of

the fare-evasion statute because he was waived onto the metrobus

by the bus driver. See Pl.’s Opp’n, ECF No. 19-1 at 11–13. Mr.

Whittaker is correct that when specific intent is an element of

a crime, an officer needs to have some evidence of the

arrestee’s intent to violate the law. See U.S. v. Christian, 187

F.3d 663, 667 (D.C. Cir. 1999). In Christian, the Court of

Appeals for the District of Columbia Circuit (“D.C. Circuit”)

held an Officer did not have probable cause to arrest a man who

only possessed a dagger when the law prohibited possession of

the weapon with intent to use it unlawfully against another. Id.

Because there was no evidence witnessed by the arresting

officer, direct or circumstantial, that showed that the arrestee

                                9
intended to use the dagger unlawfully, the Court held the

officer lacked probable cause to arrest him. Id.

     The problem for Mr. Whittaker, however, is that fare

evasion is not a specific-intent crime, but rather a general

intent crime. See Tillman v. WMATA, 695 A.2d 94, 96 (D.C.

1997)(stating officer had probable cause to arrest a person for

failure to pay fare even if the failure to pay “may have been an

inadvertent product of . . . confusion concerning the absence of

the usual gate”). Consequently, the requisite intent required to

violate the statute is the general intent to commit the act that

constitutes the crime, not intent to violate the law itself. See

Dauphine v. U.S., 73 A.3d 1029, 1032 (D.C. 2013)(explaining

standard for general intent). Based on the facts in this case,

Mr. Whittaker’s actions of boarding the bus without paying the

fare was sufficient evidence for Officer Munoz to believe the

crime of fare evasion occurred in his presence.

     Mr. Whittaker also argues that because the bus driver

waived him onto the metrobus, Mr. Whittaker’s failure to pay the

fare or show his D.C. One Card was not unlawful. Pl.’s Opp’n,

ECF No. 19-1 at 12–13. Even if this is true, Officer Munoz has

testified that he did not see the bus driver waive Mr. Whittaker

onto the bus and that he understood that bus drivers do not have

the authority to allow patrons to ride WMATA’s metrobuses for

free. Def.’s Reply, ECF No. 22 at 11 (citing Munoz Deposition,

                               10
ECF No. 17-3 at 57:18–59:3). Even if Mr. Whittaker was mistaken

as to both assumptions, and it is not clear that he was, the

Supreme Court has held that the Fourth Amendment is not violated

when an Officer seizes someone but makes a reasonable mistake of

fact or law. See Hein v. North Carolina, 135 S.Ct. 530, 539

(2014). The Court holds that, assuming there was a mistake of

fact or law in this case, it was reasonable, and therefore there

was no violation of the Fourth Amendment as a matter of law. See

Herring v. United States, 555 U.S. 135, 139 (2009)(assuming a

Fourth Amendment violation, but noting that “[w]hen a probable-

cause determination was based on reasonable but mistaken

assumptions, the person subjected to a search or seizure has not

necessarily been the victim of a constitutional violation”).

Accordingly, the Court GRANTS Officer Munoz summary judgment on

the unlawful arrest claim. 7

     B. First Amendment Claim: Retaliatory Arrest

     When an arrest is supported by probable cause, a First

Amendment retaliatory arrest claim will generally fail as a

matter of law. Nieves, 139 S.Ct. at 1726 (stating that probable

cause for an arrest will typically defeat a retaliatory arrest




7 Mr. Whittaker agrees that if the arrest was lawful then the
search incident to arrest could not have violated the Fourth
Amendment. See Pl.’s Opp’n, ECF No. 19-1 at 16. Therefore the
Court GRANTS Officer Munoz’s motion for summary judgment related
to the allegation of unreasonable search.
                               11
claim). However, in Nieves the Supreme Court identified one

circumstance under which probable cause may not defeat a claim

for retaliatory arrest under the First Amendment. Id. at 1727.

This circumstance is “where officers have probable cause to make

arrests, but typically exercise their discretion not to do so.”

Id. In other words, “the no-probable-cause requirement should

not apply when a plaintiff presents objective evidence that he

was arrested when otherwise similarly situated individuals not

engaged in the same sort of protected speech had not been.” Id.

As the Court explained, “[i]n such cases, an unyielding

requirement to show the absence of probable cause could pose ‘a

risk that some police officers may exploit the arrest power as a

means of suppressing speech.’” Id. (citation omitted). The

parties understandably did not brief this issue, and it appears

that they did not take evidence on this issue in discovery,

because the Nieves case was not decided prior to the close of

discovery in this case. Although this Court would typically

order supplemental briefing in such a circumstance, the Court

need not follow that course in this case because qualified

immunity disposes this claim.

     The doctrine of qualified immunity entitles officers to

immunity from suit unless their conduct violated “clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan, 555

                                12
U.S. 223, 231 (2009)(citation and internal quotation marks

omitted). A right is clearly established at the time of an

alleged violation if it would have been “clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001)(citation

omitted). If the right in question was not clearly established,

a court need not “broach the question of whether a

constitutional violation occurred because the officers are

entitled to qualified immunity regardless.” Dukore v. District of

Columbia, 799 F.3d 1137, 1144 (D.C. Cir. 2015)(citing Pearson,

555 U.S. at 236).

     In reviewing a grant of qualified immunity, a Court must

consider the right asserted “not as a broad general proposition,

but in a particularized sense so that the contours of the right

are clear[.]” Reichle, 566 U.S. at 665 (internal citations and

quotation marks omitted). The right that must be consider in

this case is “not the general right to be free from retaliation

for one's speech,” but rather “the more specific right to be

free from a retaliatory arrest that is otherwise supported by

probable cause.” Id.

     In March 2017, the time of the arrest in this case, the

precedent in this Circuit was inconclusive on the question of

whether an arrest supported by probable cause could violate the

First Amendment’s protection against retaliatory arrests. See

                               13
Nieves, 139 S.Ct. at 1728 (explaining that the Court took up the

question in 2018, but “ultimately left the question

unanswered”). 8 And courts had not spoken on the issue of whether

an officer who has probable cause to make an arrest, but would

typically exercise his or her discretion not to, will violate

the First Amendment if he or she arrests someone who engages in

protected speech. Since there was no consensus view at the time

of the actions in this case, even if there was a First Amendment

violation for retaliatory arrest notwithstanding the fact

Officer Munoz had probable cause to arrest Mr. Whittaker,

Officer Munoz is entitled to qualified immunity. 9 Therefore, the

Court GRANTS Officer Munoz’s motion for summary judgment on the

First Amendment retaliatory arrest claim.

IV. Conclusion

     For the foregoing reasons Officer Munoz’s motion for

summary judgment is GRANTED. An appropriate Order accompanies

this Memorandum Opinion.




8 The D.C. Circuit, in 2015, explicitly stated that the question
was inconclusive in 2011. Dukore, 799 F.3d at 1145. Mr.
Whittaker has not identified, and this Court has not found, any
precedent that shows that the right was clearly established as
of 2017.
9 The Court notes that, as of May 28, 2019, it is clearly

established that probable cause may not defeat a claim for
retaliatory arrest when an officer arrests and individual who
engages in protected speech but chooses not to arrest otherwise
similarly situated individuals not engaged in the same type of
protected speech. See Nieves, 139 S.Ct. at 1728.
                                14
    SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          September 4, 2019




                               15
