                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




    PRINCE EDWARD JONES,

                        Plaintiff,

          v.                                                  Civil Action No. 11-0275 (BAH)

    DISTRICT OF COLUMBIA, et al.,
                        Defendants.



                                     MEMORANDUM OPINION


         Pending before the Court is the motion for summary judgment [Dkt. #47] filed by the

sole remaining defendant in this case, Metropolitan Police Department Officer Jarlith Cady. 1

For the reasons discussed below, the motion will be granted. 2


                                        I. BACKGROUND


         The events giving rise to the plaintiff’s complaint began on February 19, 2006, when

Officer Jarlith Cady (“Cady”) of the Metropolitan Police Department (“MPD”) responded to a

911 call to plaintiff’s residence at 4452 B Street S.E., Apartment #102, in Washington, D.C.


1
        The Court granted the motion to dismiss filed on behalf of the District of Columbia and
the Metropolitan Police Department, and dismissed Detective Kevin Tighe as a party to this
action. See Jones v. District of Columbia, No. 11-0275, 2011 WL 2222354 (D.D.C. June 3,
2011). Plaintiff did not oppose the motion to dismiss filed on behalf of the United States
Attorney’s Office for the District of Columbia and Janine Scott, and the Court granted their
motion as conceded on September 1, 2011. ECF Nos. 44-45. Officer Cady is the sole remaining
defendant.
2
        In light of the Court’s ruling on Cady’s motion to dismiss, plaintiff’s “Motion for
Application of Appointment of Counsel” and “Motion to Subpoena Transcrip[t]s Records,” ECF
Nos. 49-50, will be denied as moot.
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                                      A. Plaintiff’s Allegations


        The plaintiff allegedly called “911 . . . about a female person attempting to burglarize his

apartment.” Pl.’s Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) at 3. While he remained

“on the phone with [the] 911 dispatcher,” the plaintiff was told that police had arrived on the

scene “but couldn’t enter the building [because] the front door was locked.” Id. The plaintiff

met Cady at the door of the apartment building, id., only to find that Cady brought with him “the

female who had attempted to break into his residence. Compl. ¶ 9. The plaintiff identified the

burglary suspect as Patrice Taylor. Pl.’s Opp’n at 3. “Instead of investigating [Patrice Taylor]

for the Burglary-in-process call, . . . Cady allowed [her] to manipulate him to break into the

Plaintiff[’]s residence” on her behalf and to search the premises. Id. ¶ 10. Cady “seize[d]

Plaintiff’s house keys by force, open[ed] plaintiff[’]s front door . . . and . . . search[ed his

apartment] without probable cause or warrant.” Id. ¶ 11.


        The plaintiff further alleges that the next day, February 20, 2006, Detective Kevin Tighe

(“Tighe”) obtained a search warrant based on “false and fraudulent information that lacked

probable cause” as it was based on unreliable “second hand information.” Id. ¶ 12. Cady and

Tighe conducted a second search of the plaintiff’s apartment on that same date. Id. ¶¶ 12-13.

According to the plaintiff, Tighe exceeded the scope of the warrant and seized items that were

not listed in the warrant. Id. ¶¶ 14-15. As a result, the “[p]laintiff was arrested . . . and falsely

charged” with a crime. Id. ¶ 16. On February 22, 2006, the Superior Court of the District of

Columbia “found that there was no probable cause and dismissed all charges” against plaintiff.

Id. ¶ 17.




                                                   2
       “On or about March 16, 2006[,] The State of Maryland[,] Prince George[’]s County[,] . .

. issued an arrest warrant for the plaintiff.” Id. ¶ 18. According to the plaintiff, Cady and Tighe

turned over property seized from the plaintiff’s apartment to “the State of Maryland Prince

Georges [sic] County States Attorneys [sic] Office [which] wrongfully used the illegally

obtained property” as evidence against him. Id. “Since March 16, 2006, [p]laintiff has been

incarcerated in the State of Maryland.” Id. ¶ 6.


                                 B. Defendant’s Representations


       Cady’s version of events is set forth in the police report he filed on February 20, 2006:
               WHILE ON ROUTINE PATROL IN THE SIXTH DISTRICT . . .
               OFFICERS CADY AND . . . CIPOLARI DURING THE
               MIDNIGHT TOUR ON 2/19/06 . . . IN FULL UNIFORM . . .
               THE SIXTH DISTRICT DISPATCHER ADVISED THAT
               THERE WAS A BURGULARY [sic] IN PROGRESS AT 4452 B
               ST[.] SE.
               ONCE ON THE SCENE OFFICER CADY [and three other
               officers] WERE MET BY D-1 [plaintiff] AND C-1 [complaining
               witness Patrice Taylor] AT THE FRONT DOOR OF 4452 B ST[.]
               SE. [Patrice] STATED THAT HER SISTER, D-2 [Porsha Taylor]
               WAS INSIDE THE APARTMENT AND SHE COULD HEAR
               HER SISTER BEING CHOKED FROM OUTSIDE THE
               APARTMENT[’]S BEDROOM WINDOW. [Patrice] ALSO
               STATED THAT SHE HAD SPOKE [sic] TO HER SISTER ON
               [plaintiff’s] PHONE EARLIER AND THAT SHE HAD ASKED
               HER TO COME OVER TO HER APARTMENT (4452 B ST SE
               #102).
               [Plaintiff] WAS ASKED BY THE OFFICERS IN FRONT OF
               THE APARTMENT IF THEY COULD ENTER THE
               APARTMENT TO CONTINUE THE INTERVIEW AND TO
               CHECK ON THE WELFARE OF [Porsha]. [Plaintiff] STATED
               THAT “YOU CAN[’]T COME IN” (REFER[R]ING TO THE
               OFFICERS), [and plaintiff] MADE SEVERAL STATEMENTS
               THAT THE APARTMENT WAS HIS AND THAT THE
               OFFICERS HAD NO RIGHT TO ENTER THE APARTMENT.
               . . . CADY [and two other officers] ENTERED THE
               APARTMENT AND BEGAN TO SEARCH FOR [Porsha]. THE

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               MAIN LIVING AREA AND BEDROOM HAD NO LIGHTS ON,
               MAKING IT VERY DIFFICULT TO SEE.           WHILE
               SEARCHING FOR [Porsha] IN THE BEDROOM . . . CADY
               BELIEVING HE HAD FOUND [HER] HIDING UNDERNEATH
               THE BLANKET ON WHAT . . . CADY BELIEVED TO BE A
               REGULAR MATTRESS ON THE FLOOR . . . CADY PUSHED
               THE MATTRESS WHICH TURNED OUT TO BE A SEMI-
               INFLATED AIR MATTRESS WITH HIS FOOT.         THE
               BLANKET AND MAT[T]RESS WERE LIGHTER THAN
               EXPECTED AND MOVED SEVERAL FEET AWAY FROM A
               WALL.
               . . . CADY FOUND A LOADED REVOLVER . . . ON THE
               FLOOR AND ANNOUNCED HIS FINDING TO THE OTHER
               OFFICERS. WHILE SEARCHING FOR [Porsha] . . . CADY
               FOUND A CLEAR[] PLASTIC BAG WITH 10 ROUNDS [of
               ammunition] ON A SHELF IN THE CLOSET. [Porsha] WAS
               FOUND SEVERAL MINUTES LATER HIDING . . .
               UNDERNEATH THE KITCHEN SINK . . . .
               WHILE [plaintiff] WAS IN THE STAIRWELL WITH [another
               officer] HE MOUTHED “IM [sic] GOING TO KILL YOU” TO
               [Patrice] WHO WAS ALSO STANDING IN THE STAIRWELL.
               [Patrice] BECAME VISABLE [sic] UPSET AND STARTED
               YELLING AT [plaintiff] . . . .
               [Plaintiff] WAS PLACED                UNDER       ARREST       AND
               TRANSPORTED TO THE                    SIXTH      DISTRICT      FOR
               PROCESSING . . . .
Mem. of P. & A. in Supp. of Def. Officer Jarlith Cady’s Mot. for Summ. J. (“Def.’s Mem.”), Ex.

2 (Arrest/Prosecution Report, ID No. 490929, dated February 20, 2006) at 1-2 (emphasis in

original). Although both the plaintiff and Porsha Taylor “stated that they lived inside of the

apartment,” neither admitted ownership of the handgun. Id., Ex. 2 (Arrest/Prosecution Report,

ID No. 556896, dated February 20, 2006) at 1. Both were arrested and charged with carrying a

pistol without a license (“CPWL”). Id., Ex. 2 at 2. The arrests took place at approximately

11:49 p.m. on February 19, 2006. See id., Ex. 1 at 1 & Ex. 2 at 1.




                                                 4
       The following morning, Tighe applied for and obtained a warrant for the search of the

plaintiff’s apartment. See id., Ex. 3 (Affidavit in Support of an Application for a Search Warrant

and Search Warrant). In relevant part, the warrant application read:


               On Sunday, February 19, 2006, at approximately 2349 hours,
               [MPD officers] responded to 4452 B Street, S.E., #102,
               Washington, D.C. for the reported female knocking loudly at the
               front door. Once at the location the [officers] were met by the
               person that had called the police, [plaintiff], and the subject that
               had been knocking on the front door, [Patrice Taylor]. [Patrice]
               told the police that she wanted them to check on the welfare of her
               sister, [Porsha Taylor], because she believed that [plaintiff] had
               been chocking [sic] her and she had heard this from outside the
               partment. [Patrice] also provided information to the police that
               according to several other witnesses that had been at the apartment
               earlier in the day and they had observed [plaintiff] choking
               [Porsha] and striking her with a belt. [Patrice] also told the police
               that [plaintiff] had guns in the apartment. While searching for
               [Porsha] the officers uncovered a loaded .357 revolver and
               additional rounds of ammunition in the bedroom of the apartment .
               . . . [Patrice] was shown the firearm that had located in the
               apartment and stated that she had previously seen [plaintiff] with
               that weapon when he was at her house. [She] also stated that she
               had also seen [plaintiff] with a 9mm handgun, which she stated
               that [plaintiff] carries with him all the time. [She] stated that she
               knows that [plaintiff] keeps this gun in a black book bag in the
               apartment . . . . [Patrice] also stated that she believed that
               [plaintiff] also has robbed people in the past.
Id., Ex. 3 (Affidavit) at 1. The judge signed Tighe’s warrant application at 10:45 a.m. on

February 20, 2006, and police executed the warrant at 11:50 a.m. on February 20, 2006. See

Def.’s Mem., Ex. 3. Among the items seized were a black book bag, ammunition, and cash. Id.,

Ex. 3 (Search Warrant – Return).


       Although the Superior Court found no probable cause and dismissed the CPWL charge

against the plaintiff on February 22, 2006, additional charges were filed in the case on May 1,




                                                5
2006. See id., Ex. 5 (Superior Court docket entries dated May 1, 2006). The plaintiff pled guilty

to a misdemeanor, attempted threats to do bodily harm, on February 6, 2007. Id., Ex. 5at 2.


                       C. Plaintiff’s Fourth and Fifth Amendment Claims


       The complaint alleges that Cady violated the plaintiff’s Fourth Amendment right to be

free from unreasonable search and seizure by entering his apartment on February 19, 2006,

without the plaintiff’s consent and without a warrant, and by seizing his gun and ammunition.

For these alleged constitutional violations, the plaintiff demands damages of $4,000,000.00.

Compl. ¶ 33. In addition, the plaintiff alleges that Cady violated his Fifth Amendment right to

due process “by abuse of authority, id. ¶ 22, for which the plaintiff demands damages of

$2,000,000.00, id. ¶ 25. Cady moves for summary judgment on the ground that qualified

immunity protects him from suit. See Def.’s Mem. at 1.


                                        II. DISCUSSION


                                A. Summary Judgment Standard


       The Court grants summary judgment “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43

F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are material, the Court looks to the

substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The mere existence of a factual dispute does not bar summary judgment. See id. A

genuine dispute is one whose resolution could establish an element of a claim or defense and,

therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.



                                                6
         To prevail on a motion for summary judgment, the moving party must show that the

nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving

party, a moving party may succeed on summary judgment. Id. The Court must draw all

justifiable inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence

as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the

mere existence of a scintilla of evidence” in support of his position. Id. at 252. He must “do

more than simply show that there is some metaphysical doubt as to the material facts,”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and he cannot rely

on conclusory assertions without any factual basis in the record to create a genuine dispute. See

Ass’n of Flight Attendants–CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.

2009).


                                        B. Qualified Immunity


         “Qualified immunity is a defense that shields officials from suit if their conduct did not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Bame v. Dillard, 637 F.3d 380, 384 (D.C. Cir. 2011) (quoting Ortiz v. Jordan, __

U.S. __, __, 131 S. Ct. 884, 888 (2011)) (internal quotation marks, brackets, and citations

omitted); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Because qualified immunity is “an

immunity from suit rather than a mere defense to liability, . . . it is effectively lost if a case is

erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in

original). Accordingly, the Court must “resolv[e] immunity questions at the earliest possible

stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

                                                    7
        “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.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). This protection is afforded to government officials whether

their “error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law

and fact.” Id. (citations and internal quotation marks omitted); see Brinegar v. United States,

338 U.S. 160, 177 (1949) (“Because many situations which confront officers in the course of

executing their duties are more or less ambiguous, room must be allowed for some mistakes on

their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to

their conclusions of probability.”). “[A]ll but the plainly incompetent or those who knowingly

violate the law” may enjoy the protection of qualified immunity. Malley v. Briggs, 475 U.S. 335,

341 (1986).


        “Whether an official protected by qualified immunity may be held personally liable for

an allegedly unlawful official action generally turns on the objective legal reasonableness of the

action, assessed in light of the legal rules that were clearly established at the time it was taken.”

Messerschmidt v. Millender, __ U.S. __, __, 132 S. Ct. 1235, 1245 (2012) (brackets, internal

quotation marks, and citation omitted). In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Court set forth a two-step analysis for resolving government officials’ qualified immunity

claims. First, the court decides “whether the facts that a plaintiff has alleged or shown make out

a violation of a constitutional right.” Id. at 201. If the plaintiff satisfies this first step, the court

then decides whether the right at issue was clearly established at the time of the defendant’s

alleged misconduct. Id. The sequence of this analysis no longer is mandatory, and now the court

may “exercise [its] sound discretion in deciding which of the two prongs of the qualified


                                                     8
immunity analysis should be addressed first in light of the circumstances in the particular case at

hand.” Pearson, 555 U.S. at 236.


       In this case, the Court opts “first [to] determine whether the facts, construed in the light

most favorable to [the plaintiff] show that [Cady] violated a constitutional right, and second,

whether that constitutional right was clearly established at the time of the incident. If the answer

to either of these questions is no, then the defense motion for summary judgment must be

granted because [Cady is] entitled to qualified immunity.” Wesby v. District of Columbia, 841 F.

Supp. 2d 20, 36 (D.D.C. 2012) (citing Barham v. Salazar, 556 F.3d 844, 847 (D.C. Cir. 2009)).


                          C. Qualified Immunity Protects Cady from Suit


       In order to establish a claim against Cady under 42 U.S.C. § 1983, the plaintiff must

demonstrate that Cady, acting under color of the law of the District of Columbia, deprived him of

“rights, privileges, or immunities secured by the Constitutions and laws” of the United States.

Id. This discussion begins with the proposition that, ordinarily, a search of a person’s home and

seizure of his property by police without a warrant violate that person’s Fourth Amendment right

to be free from unreasonable search and seizure. U.S. CONST. amend. IV; see Arizona v. Gant,

556 U.S. 332, 338 (2009) (“[S]earches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject

only to a few specifically established and well-delineated exceptions.”). Cady argues that his

“entry was lawful pursuant to the emergency exception” to the warrantless entry rule. See Def.’s

Mem. at 6.


       Exigent circumstances are present when the police have “an urgent need or an immediate

major crisis in the performance of duty affording neither time nor opportunity to apply to a


                                                 9
magistrate” for a warrant. United States v. Johnson, 802 F.2d 1459, 1461 (D.C. Cir. 1986)

(brackets, internal quotation marks and citations omitted). For example, police “may make a

warrantless entry onto private property . . . to prevent the imminent destruction of evidence . . .

or to engage in hot pursuit of a fleeing suspect.” Brigham City, Utah v. Stuart, 547 U.S. 398,

403 (2006) (internal quotation marks and citations omitted). Another “exigency obviating the

requirement of a warrant is the need to assist persons who are seriously injured or threatened

with such injury.” Id.; see In re Sealed Case 96-3167, 153 F.3d 759, 766 (D.C. Cir. 1998)

(finding that officers’ belief that defendant was burglarizing a house with the intent either to steal

property or to injure occupants was objectively reasonable and “constitutes exigent

circumstances sufficient to permit warrantless entry”). The police officer must have had a

reasonable belief that exigent circumstances existed. See United States v. Goree, 365 F.3d 1086,

1090 (D.C. Cir. 2004). “And the police may seize any evidence that is in plain view during the

course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. 385, 393 (1978)

(citations omitted).


       There is no genuine issue in dispute as to the material facts of this case. The plaintiff

states that he made a 911 call to police about a burglary in progress. Cady represents, see Def.’s

Mem., Ex. 2, and the plaintiff concedes, see Pl.’s Opp’n at 4, that Patrice Taylor heard her sister

being choked inside the apartment, that other people had seen plaintiff choking and striking

Porsha Taylor with a belt earlier in the day, that the plaintiff kept guns in his apartment, and that

the plaintiff refused Cady’s requests for his consent to enter the apartment. Cady and the other

officers entered the plaintiff’s apartment without a warrant, searched the apartment, found Porsha

Taylor hiding under the kitchen sink, found a handgun and ammunition in plain view, seized the

handgun and ammunition, and arrested the plaintiff and Porsha Taylor.


                                                 10
       Based on these facts, the Court concludes that Cady had an objectively reasonable belief

that exigent circumstances existed, namely that Porsha Taylor had been injured or was at risk of

injury. These circumstances justified Cady’s warrantless entry into the plaintiff’s apartment and

his limited search for Porsha Taylor in places where an adult could have been hiding. Although

Cady had not secured a warrant prior to his initial entry into the plaintiff’s apartment, exigent

circumstances obviated the need for a warrant at that time. Cady’s search of the apartment on

the following day also is justified – the search and seizure of the plaintiff’s property took place

pursuant to a warrant issued by a Superior Court judge. “Where the alleged Fourth Amendment

violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has

issued a warrant is the clearest indication that the officers acted in an objectively reasonable

manner.” Messerschmidt, 132 S. Ct. at 1245.


                                        III. CONCLUSION


       The Court concludes that Cady is protected by qualified immunity. Accordingly, his

motion for summary judgment will be granted. An Order accompanies this Memorandum

Opinion.




                                                        /s/  Beryl A. Howell
                                                      BERYL A. HOWELL
                                                      United States District Judge
DATE: September 21, 2012




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