Case 1:14-cv-01317 Document 1 Filed 08/04/14 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

S.H. (A minor child), )

S.B. (A minor child), )

S.R. (A minor child), )

SHANDALYN HARRISON, )

STERLING HARRISON, )

)

1054 Quebec Place NW

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Washington, D.C. 20009,

)

)

Plaintiffs.

)

)

v.

)

)

THE DISTRICT OF COLUMBIA

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1350 Pennsylvania Avenue NW

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Washington, D.C. 20004,

)

)

Officer Taylor Volpe )

Metropolitan Police Department

)

5th District )

1805 Bladensburg Road NE

)

Washington, DC 20002,

)

)

John Doe Officers 1–20,

)

)

Defendants.

)

___________________________________ )

Case No. 1:14-cv-1317 Jury Trial Demanded

COMPLAINT

1. On April 18, 2013, shortly after 10:00 p.m ., 11-year-old S.H. was in her

bathroom, taking a shower. S.H. and her two sister s, 7-year-old S.B. and 13-year-old S.R., were

taking turns showering before bedtime while they watched television with their mother. As S.H.

washed her hair, an adult m ale officer from the Metropolitan Police Departm ent (“MPD”) flung

the shower curtain open without warning and pointed a loaded gun at her naked body.

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2. Nearly 20 heavily arm ed MPD officer s storm ed S.H.’s hom e that night, brandishing shields, m achine guns, handguns, and body ar mor in a m ilitary-style raid. Police were supposedly in search of evidence relating to a single traffic stop—conducted 13 days before and several m iles away. In that traffic stop, a po lice officer had arrested the driver of the car, Mordsen Box, after allegedly finding five ounces of marijuana.
3. Police officers had no evidence that the quiet four-bedroom home that the fa mily shared in the Petworth neighborhood had ever been the site of any illegal activity. Instead, after claiming that Mr. Box lived at the residence, poli ce officers based their application to search the family’s home and rummage through all of the f amily’s most intimate belongings on statem ents of “training” and “experience” about the habits of marijuana criminals like Mr. Box—statements that were knowingly and recklessly false and m isleading and, even if true, clearly inadequate in the mind of any reasonable person to establish probable cause to raid the fa mily’s home based solely on a traffic stop of Mr. Box almost two weeks before.
4. Police decided to descend on the hom e violently at night, even though it is illegal for police to conduct hom e raids at night without an explicit s howing of necessity, and despite being told repeatedly by two different people that Mr. Box did not even live at the house—a fact officers did not report to the Superior Court judge when seeking the search warrant.
5. Nothing illegal was found at the home. 6. What happened to S.H. and her fam ily raises serious issues concerning the systemic m isconduct and recklessness of the Metr opolitan Police Departm ent in obtaining and executing search warrants in the District of Columbia.1
1 The allegations in this Com plaint are based on personal kn owledge as to m atters in which the Plaintiffs have had personal involvement and information and belief as to all other matters.
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Nature of the Action 7. The Plain tiffs seek compensatory relief fo r the violations of their con stitutional rights that occurred as a result of the MPD’s violent nighttime home invasion.
Jurisdiction and Venue 8. This is a civil rights action arising under 42 U. S.C. § 1983 and the Fourth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplem ental juri sdiction to ad judicate Plaintiffs’ claim s under the laws of the District of Colum bia under 28 U.S.C. § 1367 because those claim s for m part of the same case or controversy and arose out of the same transaction and occurrence. 9. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 10. Plaintiff Shandalyn Harrison is a 34-year -old mother of thre e daughters living in the District of Columbia. Plain tiff Sterling Harrison is the 20-year-old brother of Ms. Harrison. Plaintiff S.B. is the 9-year-old daughter of Ms. Harrison; Plai ntiff S.H. is the 12-year-old daughter of Ms. Harrison; Plaintiff S.R. is the 14 year-old daughter of Ms. Harrison. 2 At the time that their home was raid by MPD officers, S.B. was 7 years old, S.H. was 11 years old, S.R. was 13 years old, and Sterling Harrison was 19 years old. 11. Defendant Officer Taylor Volpe prepared an d swore un der oath th e search warrant application and participated in the planning and execution of the home raid. 12. John Doe Officers 1–20 are the MPD officer s who participated in the planning and execution of the nighttim e home invasion. Defendants Volpe and the District of Colum bia are in possession of the full nam es and badge numbers of Defenda nt John Doe Officers (which 2 Because of the young age of the girls and m ultiple shared initials am ong the sisters, the three girls will be referred to consistently with these initials.
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include an o fficer identified as Sgt. Boetler), an d their f ull identities ca n be easily discovered. All of the Defendant officers are sued in their individual capacities.
13. The District of Colum bia is the munici pal entity responsible for operating the Metropolitan Police Department and for training and supervising the Defendant officers.
Factual Background The Clear Lack of Probable Cause 14. The warrant application made and relied on by the Defendants was plainly lacking in probable cause. See generally Exhibit 1. N o reasonable officer could have believed that it established probable cause to search the family’s home. 15. According to Defendant Volpe’s w arrant application, on April 5, 2013, MPD officers conducted a traffic stop on W est Virgin ia Avenue in Northeast W ashington, D.C. According to Defendant Volpe, he chose to co nduct th e traffic stop b ecause a plastic license plate cover was partially obstructing the car’s license plate.3 16. According to the warrant application, during the traffic stop, Defendant Volpe asked the driver, Mordsen Box, if the officers co uld search through his car to look for “anything illegal.” Exhibit 1 at 4. 17. At that point, the police officer had no r eason to believe that the driver had done anything illegal and no reason to ask if police could rummage through the driver’s possessions.4 18. According to the war rant application, the d river stated that he was not aware of anything illegal in the car bu t stated that the officer coul d search “if you have to.” Id. The officer, without explaining why he “had to” search the car, then stated: “ok, so can I look? ” Id. 3 That assertion was untrue. No obstruction was blocking any of the information on the tag. 4 Black residents constitute nearly 80% of all traf fic arrests in th e District of Columbia de spite being less than half the population of the City. Black residents m ake up m ore than 90% of all drug arrests in the District of Columbia despite using drugs at the same rate as white residents.
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Apparently thinking that the offi cer believed that the officer “had to” s earch his car, the driver said “yeah.” Id.5
19. The resulting search, as reported in the wa rrant application, re vealed a glass jar containing what officers claim ed to be 42.2 gram s (1.5 ounces) of mariju ana. Officers also found 29 empty plastic sandwich bags in the car and $180 on the person of the driver, which they seized and k ept for “civ il forfeiture.”6 Officers later found anot her 103.2 grams (3.6 ounces) of marijuana in a ziplock bag inside the police vehicle in which Mr. Box had been placed for transfer after his arrest.7
20. Mr. Box’s suspended D.C. license liste d 1054 Q uebec Place NW as his address, and the warrant application stated that, after Mr. Box’s arrest, Mr. Box told officers that he lived at 1054 Quebec Place NW . Officers claim ed in th e warrant application that “Mr. Box had a utility listing” at that address on December 27, 2012.
21. The warrant application contained no ev idence of any illegal activ ity eve r occurring at 1054 Quebec Place NW.
22. The warrant application contained no connection to 1054 Quebec Place NW other than that a police officer had found, in a traffic stop miles away from the home, contraband in the possession of a person who the officer believed to live there.
5 The warrant application reported that a passeng er in the vehicle denied that the car contain ed contraband but does not state whether the passenger was asked for consent to the search. 6 It was standard practice at the time for MPD officers to take and keep al l cash from the wallets of people w hom they arrested for drug offenses on the MPD’s standard assum ption that every dollar found in proximity to drugs is connected to illegal activity. 7 The warrant applic ation im plied that this weig ht was the actual weight of the m arijuana, but MPD officers commonly m islead Superior Court judges by including in the weight reported i n warrant applications the weight of the packaging, without so indicating.
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23. The warrant application contained no ot her evidence of Mr. Box being involved with drugs, being a drug dealer, being involved in a significant drug distribution enterprise, possessing any weapons, or even having a criminal record.
24. The warrant applic ation om itted tha t MPD officers had repe atedly b een told by residents of the 1054 Quebec Place NW home that Mr. Box did not liv e there. On at least two occasions in the week s and m onths leading up to the application for th e warrant, MPD officers had come to the home looking for Mr. Box.
25. On each occasion, a different m ember of th e Plaintiffs’ fa mily informed officers that Mr. B ox did no t live at the residen ce. On the first occasion, S.B., S.H., and S.R.’s grandmother informed officers who cam e to the fa mily’s door that Mr. Box did not live there. On the seco nd occasion, just week s before the raid, Shandalyn Harrison told po lice at th e door that Mr. Box did not live there.
26. None of these incidents were presented to the Superior Cour t judge authorizing the warrant, who was instead left with the false impression that the evidence established that Mr. Box lived at the residence.
27. Moreover, Defendant Volpe falsely stated that Mr. Box had verbally told him that he lived at 1054 Quebec Place NW. Although Mr. Box handed his suspended D.C. license to Defendant Volpe, he did not tell Defendant Volpe that he lived at the home.
28. Mr. Box had not lived at the residence in the previous few years. Mr. Box is the biological father of S.B., but he had not lived with his daughter for several years.
29. Defendant Volpe also falsely claim ed in the warrant app lication that a “utility listing” was found in Mr. Box’s name for the residence in late December 2012, even though none
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of the utility bills at the house had ever been in Mr. Box’s name. The electric, gas, water, phone, and cable bills were all in Ms. Harrison’s name.
30. Not a single particularized fact connected the residence to any illegal activity. 31. In the absence of a s ingle particularized fact supporting probable cause to believe that evidence of crim inal activity w ould be found at the hom e, the application instead relied on numerous statem ents of “training” and “exp erience.” These statem ents were woefully insufficient to establish probable cause and knowingly and recklessly false and misleading. 32. Defendant Volpe asserted that, because of his “experience and knowledge,” he knew that those who distribute illegal drugs “m ake it a habit” to “sto re” thos e dr ugs “at th eir place of residence.” See Exhibit 1 at 5. 33. The application then claim ed that “drug tr affickers” keep a variety of other items at their houses, including notebooks, tally sheets, records, packaging, and a variety of other items relating to “any other crim es.” Id. The application then sought perm ission to execute what amounted to a colonial-era General W arrant to search the house for “any other evidence of a crime that may be found.” Id. at 6.8 34. These statements of “experience” and “knowledge” were plainly insufficient, selfdefeating, false, and recklessly misleading. 35. The conclusion of the application asked for a warrant to search the Quebec Place home because of the purported “habit” of “dru g tra ffickers” to keep th ings at their residen ces. Defendant Volpe knew those vague assertions to be untrue and m isleading. Indeed, in the beginning of the sam e warrant application, Defendant Volpe had asserted, based on his “training” and “experience,” that drug dealers usually keep such item s in a variety of other 8 The warrant that issued purportedly granted perm ission to s earch for a variety of things not even listed or explained in the affidavit, including “computers.”
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additional places, including “the residences of fri ends,” or the hom es of “fam ily members,” or
the homes of “associates,” or “in the places of op eration of the drug distribution activity, such as
a stash house or safe house.” Id. at 1-2.
36. In many dozens of other warrant applicat ions sworn by MPD officers to different
Superior Court judges in the one-year period su rrounding the warrant applic ation in this case,
MPD officers similarly claimed under oath, based on the sam e “training” and “experience,” that a broad category of people refe rred to as “drug traffickers”9 attempt to hide the evide nce of their
criminal activities in other places that are not their own home.
37. These statements of “training” and “experi ence” thus purportedly give agents of
the Dis trict’s government the ability to raid an d search m ultiple homes and other location s for
every traffic stop or street arrest in which they find contraband.
38. The practical and logical result of these assertions is that, if a person is stopped on
the street anywhere in the District carrying an amount of drugs that MPD officers assert to be
consistent with a drug sale, the MPD has trained its officers to claim the right to search the entire
home of any person who is relate d to that person, any person who is friends with that person, or
9 That deliberately broad term has little coherence as a general category of people with consistent habits; indeed, MPD officers are tr ained and routinely testify about the very different habits of different types of drug dealers. For exam ple, a small-time neighborhood dealer on a D.C. corner is far less likely to keep sophis ticated computerized records of tr ansactions or detailed financial banking rec ords than a high-lev el multi-s tate or international m anager of a drug-distr ibution enterprise. By deliberately obfus cating the many distinctions between different types and levels of drug sellers, Defendant Volpe falsely portray ed low-level dealers, who are exceeding ly unlikely to keep any of the m aterials allegedly sought in their family’s home, as having the same habits as would a cartel kingpin.
The resu lts are v iolent hom e raids in whic h M PD off icers cla im, as in this case, th e authority to exam ine every piece of paper, ever y entry in a sm art phone, and every file on any computer th at th ey find , even though they h ad never rec eived a spe cific war rant to sea rch through those electronic devices that contain the entire living records of the home’s residents and even though such records are extremely unlikely to be in the places being searched.
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any person who associates with that person, not to m ention various other locations, such as vehicles and other storage areas commonly used to “stash” materials.
39. The MPD’s training scheme and policies mean that any District resident, by virtue of having a m arijuana “crim inal” in her fa mily or am ong her acquaintances, has unknowingly subjected all of her life’s possessions to a violent search by government agents.
40. As a corollary, however, Defendant Volpe’s assertions in th e warrant ap plication also mean that Defendant Volpe had no idea whether the evidence that he sought would be at any one of these num erous distin ct places that he listed, since, accord ing to Defendant Volpe and other MPD officers themselves, drug criminals are known to hide their things at any one of them.
41. Thus, the bare bones w arrant application in this case itself rem oved any notion that there w as probable cause to believe that the specific item s sought would be at the Quebec Place location in particular. Because the Defendants knew that there were num erous alternative places in which their “training” and “experience” taught that the evidence they sought was likely to be found, their own assertions completely un dermine any probable cause to believe that any one particular of these numerous places would be holding evidence of the crime.
The Warrant Relied on False and Misleading Statements and Omissions 42. In add ition to f ailing to establish a nd themselves def eating any pa rticularized probable ca use jus tification to ra id the hom e, these gen eric and con clusory statem ents of “training” and “experience” were also false and misleading. Defendant Volpe omitted to tell the Superior Court judge that, in the vast m ajority of cases in which MPD officers execute such warrants after a traffic or stre et sto p based on ly on their “t raining” an d “experien ce” and no t actual evid ence connecting the ho me to crim inal activ ity, the warran t returns su bmitted by officers themselves prove that MPD officers do not find the items that they seek.
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43. For example, examining all of the “train ing” and “experience”-based warrants in the one-year period surrounding the raid in this case in which Distri ct officers sought to search a home based solely on assertions that a drug crim inal would keep drugs at hom e, police officers failed to find any drugs, let alone the drugs they were looking for, in almost 66% of the cases.
44. The statis tics are even worse cons idering that the large major ity of h ome drug raids found not what MPD officers claim ed that they would find, but turned up only sm all amounts of marijuana. If s mall amounts of m arijuana are excluded, MPD officers failed to find illegal drugs that they were purportedly searching for in nearly 87% of the cases.
45. According to the Depa rtment of Health and Hum an Services, the rate o f illega l drug usage within the previous m onth by D.C. residents age 12 and older is 13.6%, including 11.2% for marijuana use alone.10
46. Considering the signif icant usage r ate of illicit drugs in all areas and a cross all demographics of the District, the MPD’s success rate in “training” and “experience”-based home raids (i.e. raids seeking to search a hom e wit hout any particularized facts linking the hom e to criminal ac tivity) is clo ser to wha t one would expect to find at rando m in searches of hom es occupied by D.C. families.
47. The statem ents of “train ing” and “experi ence” to the Superior Court ju dge thus knowingly and recklessly omitted from the judge the poor success rate of such warrants. It is the duty of the police officer swearing the warrant to inform the judge that the claims being made are not true and not substantiated by information collected by the MPD officers themselves.
48. Statements under oath to a judge about what dr ug dealers “usually” or “commonly” or “habitually” do are especial ly m isleading when MPD offi cers possess
10http://www.samhsa.gov/data/NSDUH/2k11State/NSDUHsae2011/ExcelTabs/NSDUHsaeTable s2011.pdf (Table1 and Table 3). The usage rates are significantly higher for those 18 and older.
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information that con tradicts those v ague statemen ts of “exp erience.” B y depriv ing the is suing judge of a full or accurate picture, D efendant Volpe denied the neutral arbiter the ability to make a properly informed probable cause determination.
49. In this case, Defendant Volpe ultimately swore to the issuing judge that additional drugs would likely be fo und in the Quebec Place home but om itted to tell the judge that, b ased on his and the MPD’s actual experience in such “training” and “exp erience”-based raids in the District, it was far more likely that no such evidence would be found. These are critical facts that any reasonable judge w ould need to know before authorizing what is among the most intrusive, traumatizing, humiliating, and dangerous actions undertaken by any government.
50. Defendant Volpe also sought to broaden the search of the fam ily’s home beyond illegal drugs to examine all of the papers and records and ph otographs that might be found in the family’s home. To do so, he asserted that h is “training” an d “experience” meant that he knew that c riminals lik e Mr. Box m aintained a laund ry list of papers and records, including “notes” and “ledgers” and “receipts” and “photographs” and “other pa pers” and a wide variety of documents reflecting the “importation” and “ordering” and “manufacturing” and “transportation” of illegal drugs. See generally id. at 2 (stating that these and m any more items could be found at the home or at homes of friends or associates, or in a variety of other places).
51. The Defendants knew, however, that it is ex tremely rare, if ever, th at such “training” and “experience”-based home raids in the Dis trict of Colum bia yield any su ch documents or records of drug di stribution. In the one-year pe riod surrounding and including the raid of the Plaintiffs’ hom e, MP D officers failed to locate such docum ents or other records in over 99% of such street-stop “training” and “experience”-based raids.
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52. Defendant Volpe, in an attempt to expand the search authorization from drugs to any and all docum ents, papers, cell phones, pho tographs, an d reco rds in the house, om itted to inform the issuing ju dge of the abysm al success ra te in MPD of ficers loc ating such documentation and records in such home raids.
53. This reco rd of failure is not su rprising given how the judge was m isled. The warrant application left the issuing judge with the false impression that all “drug traffickers” share the sam e relevant habits. See supra n. 8. For exam ple, the warra nt application presented Mr. Box—based on finding five ounces of m arijuana and som e e mpty s andwich bags during a single traffic stop—as one of thos e “drug traf fickers” who m ust keep sophisticated banking records, safes, tally sheets, and oth er evidence of a drug importation or distribution ring in his residence (or in the residences of his family, friends, acquaintances, or stash houses).
54. The Defendants knew, however, based on their training and experience, that many of those engaged in street-level drug selling in the District—thos e who are the vast m ajority of “drug traffickers” that MPD officers arrest —possess “habits” th at are nothing like the sophisticated operations described in the warrant application.
55. Defendant Volpe knew, but did not report, that str eet-level drug se llers, to the extent th at officers even had evidence that Mr . Box was one of the m, are utte rly unlikely to possess the various specific item s sought in the s earch warrant in their hom es or even in the homes of friends or relatives or associates.
56. The Defendants also kn ew that big-time drug traffickers who operate distribution rings have very different habits from those who sell or give m arijuana to their friends and from those who sell sm all amounts of m arijuana on the street. The Defendants knew that drug-
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trafficking leaders and managers rarely trust lower level dealers with financial records, customer logs, distribution chain information, money, or even drug stashes.
57. None of this knowledge was presented to the judge in this case, who was instead left with the im pression that any person carrying around 5 ounces of marijuana in a car that also had empty sandwich bags would be keeping “safes” and “receipts” and “financial records” in a variety of places, including in his home or in the homes of family or acquaintances.
58. More spec ifically, the s worn af fidavit m akes no attem pt to distingu ish between the “habits” of indigent low-level street dealers or couriers and those of successful drug kingpins and traffickers. That wealthy kingpins m ight keep sophisticated paper or electronic records and suitcases of cash says nothing about whether indigent street-level dealers, who constitute the vast majority of MPD arrests and prosecutions, do the sam e. To the contrary, experienced MPD officers like Defendant Volpe know that different cl asses of dealers have dram atically different business m odels and practices. Th e fact th at some of these item s—which Defendant Volpe’s “common experience” dictated sho uld be pres ent at the base of operations of a “su ccessful drug trafficker”—are almost never foun d in MPD s earches, and other item s (like m ore drugs) are far more likely not to be found than to be found in a searc h, belies Defendant Volpe’s assertions of “training” and “experience” as app lied to th e people D.C. police ar e actually talk ing about. B y combining these groups in his sworn affidavit, Defendant Volpe m isled the issuing judge about the people actually involved in the investigation before the judge at that moment.
59. Moreover, Defendant Volpe and the othe r Defendants planning and executing the home raid were trained that drug crim inals often choose not to hide evid ence at their own homes and often give to police addresses that they know are “clean.”
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60. For exam ple, while S.H. and her sisters were crying and sitting in shock, the Defendants told their mother in their own living room that Mr. Box had likely given the address to police because he knew that the house was “clean,” which wa s apparently, according to the officer, a common practice.
61. Defendant Volpe did not inform that S uperior Court judge that it is a common practice of those that the MPD categorically labels “drug traffickers” to give addresses of friends or family who they know to be “clean” when police ask for an address.11
The Violent Raid of the Family’s Home 62. Shortly after 10:00 p.m., 12 on April 18, 2013, a pproximately 20 ar med officers stormed 1054 Quebec Place NW.13 63. When the Defendants arrived, S.B., S.R., and their m other were sitting on the downstairs couch watching televi sion together. The two girls were taking turns showering before bedtim e with their sister , S.H., who was in the shower upstairs. Sterling Harrison, the teenage brother of Ms. Harrison, was also home, playing a video game in his bedroom.
11 Defendant Volpe also f ailed to inform the judg e that people that the MPD stops oft en stay at multiple residences and are othe rwise transient. Other polic e officers have, when it serves the ir interests, sworn to this fact in other warrant applications to different judges. Moreover, it is also “common experience” that m any people, esp ecially low-income people wit hout stable finances or thos e with m any f amily m embers in d ifferent loc ations, will “stay” at m ultiple res idences. See, e.g., 2013-CRW-1369 (“It is not uncommon for individuals to live between places.”). 12 The warrant return states that the raid was c onducted at 9:10 p.m., but officers actually arrived shortly after 10:00 p.m . In any case, D.C. law forbids warrants from being executed after 9:00 p.m. unless the warrant application contains specific justifications. D.C. Code § 23-522, § 523. 13 The Defendant had obtained the warrant on April 8 but waited until April 18 to execute it. The warrant on its face gav e officers 10 days to ex ecute the search. Becau se officers waited un til 10:00 p.m. on the 18th, they likely actually served the war rant more than 10 f ull days after the time at which the warrant was issued on April 8.
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64. The Defendants banged loudly on the door but did not identif y themselves as police. As Ms. Harrison began to open the door to see what the comm otion was, the Defendants burst through the door, physically knocking her back.
65. When Defendant MPD officers burst into the home, the offi cers ran all over the house, wielding shields, machine guns, handguns, and other weapons.
66. Several armed officers kept Ms. Harrison, 7-ye ar-old S.B., and 13-year-old S.R. on the couch downstairs.
67. Three of the Defendants found Sterling Ha rrison peacefully playing a video game in his bedroom . The Defendants pointed guns at his head and handcuffed hi m even though he had rem ained calm and had done nothing illegal, aggressive, or violen t. The Defendants continued to point guns at him even after it was clear that he did not pose any threat.
68. The Defendants took him out of the room and toward the steps, pushing him in the back at the top of the step s so that h e stumbled down the first step while handcuffed. The Defendants brought the teenage Mr . Harrison, still in handcuffs, to the living room , holding a photograph of Mr. Box. The fa mily informed officers that 19-year-old Mr. Harrison was not 32year-old Mr. Box, but the Defendants refused wit hout explanation to release him from handcuffs for nearly half an hour.
69. The entire fam ily was peaceful and non-thre atening to officers from the mom ent that Ms. Harrison opened the door and even as she was pushed aside and overrun by the officers storming into her living room.
70. S.H. was taking a sho wer as th e officers rus hed into her hom e. One of the Defendants burst into her bathroom without knocking and, after hearing the shower running,
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threw open the shower curtains without providing a ny warning and without making any inquiry of the person in the shower.
71. The male officer, holding a shield in one hand, pointed his gun at the head of the naked 11-year-old girl.
72. S.H. began screaming and crying for her mommy to come help her and to help get her clothes. S.H. was not able to exit the show er or get a towel to cover herself because of the armed officer pointing a gun at her.
73. Ms. Harrison was frightened when she heard her daughter sc reaming upstairs. She got clothes for S.H. and tried to comfort S.H.
74. Eventually, after S.H. was clothed , the Defendants gathe red the whole f amily downstairs on the couches while they continued to search through the entire home.
75. The Defendants ransacked the hom e, especially S.H.’s room , and it took the family days of laboring to clean up their belongings.
76. While the girls and th eir mother and teenage u ncle were in the living r oom, the Defendants told the family that S.B.’s father, Mr. Box, did not care about them, and suggested to Ms. Harrison in front of the girls that this arm ed hom e invasion was only happening to them because S.B.’s father was a bad man.
77. Mr. Box is the biological father of S.B. a nd also raised the other sisters when they were little, but he had not lived with the f amily in several years. The Defendants continued to search the hom e even after they learned that the suggestion in the warrant application that Mr. Box lived at the residence was untrue.
78. The home invasion was traumatizing and hum iliating to the young girls , to their teenage uncle, and to their mother. It is now difficult for them to feel safe in their own home.
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79. The warran t applicatio n in this c ase contained no request for perm ission to execute the warrant at night or any facts and circumstances setting forth why a nighttim e raid on the family’s home would be necessary or justified.
80. The warrant application contained no evid ence that Mr. Box or anyone else was violent, dangerous, or possessed any weapons. To the contrary, the application described Mr. Box as having given consent to search his vehicle after asking if officers needed to search it.
81. The family had no knowledge that Mr. Box had been driving with m arijuana 13 days before.
“Training” and “Experience”-Based Home Raids in the District of Columbia 82. Over the past several years, the Metropo litan Police Departm ent has adopted an aggressive addition to its tra ditional se arch warrant practices. The MPD has expanded the number of arm ed hom e raids by establishing a pattern, custom , a nd practice of seeking search warrants for a person or fa mily’s home without any specific connection between th at home and any illegal activity. According to this approach, MPD officers are trained to search homes based solely on street stops resulting from the seizure of certain types of contraband. 83. If officers lack any facts trad itionally us ed to establish a connection to a hom e (such as a controlled buy, a conf idential inform ant, witness statem ents, interrogations, police observations and surveillance, or physical eviden ce), the MPD has trained its officers to m ake vague, entirely unsubstantiated, and knowingly reck less and false statem ents of “training” and “experience” about the habits of “criminals.” 84. In such non-evidence, “experience”-based home raids, officers will typically stop and frisk or search a person. If the person has contra band, officers will as k the person where he or she lives or exam ine their drivers’ license. Days or weeks late r, a team of heavily-arm ed
17

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officers will raid the res idence (or s ometimes multiple residences) based on sta tements that the criminal must have further evidence of his or her crimes at the residence.
85. In such cas es, the MPD thus effectively turn s searches incident to arres t into searches of entire homes incident to arrest.
86. In the one-year period surrounding the execution of the warrant in this case, MPD officers (including dozens of officers and supervis ors from police district s throughout the City) employed materially sim ilar statem ents based on the MPD’s “training ” and their “experience” concerning people who possess drugs in order to obtain and execute at leas t 81 hom e search warrants resulting from incidents in which polic e claimed to f ind drugs during a street stop but presented no other evidence linking the home to any criminal activity.
87. MPD off icers are tra ined by the MPD to substitute these a nd m aterially sim ilar statements of “train ing” and “experience” for p articularized facts when they want to search a particular location but lack any actual facts connecting the location to any criminal activity.14
88. An exam ination of hundreds of MPD wa rrant applications from the one-year period surrounding the application to search 10 54 Quebec Place NW reveals not o nly material inconsistencies and numerous facially invalid warra nts, but also a system ic lack of evidentiary rigor. Much of the enterprise is based on interconnected falsities an d reckles s om issions—
14 This system ic pattern extends beyond m arijuana cases. F or exam ple, in dozens of warrant applications, MPD of ficers a ssert that th ey will f ind additiona l f irearms or f irearms-related accessories at a hom e based solely on a street arrest of a person possessing a gun, even though MPD officers know that they are overwhelm ingly unlikely to find that evidence in those hom e raids. These warrant applications often contain assertions about pa rticular items that are flatly contradicted by other warrants purportedly based on the same “training” and “experience.”
In total, during the one-year period surroundi ng and including the raid in this case, MPD officers executed sim ilar hom e search warrants based solely on statements of “training” an d “experience” after finding contraband during a street arrest in 130 cases.
18

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calculated and used by MPD officers to gain entry into the most intim ate areas of people’s lives when the particularized evidence does not support such extreme intrusions.
89. Examining MPD warrant applications a nd inventory returns in bulk reveals a police department that not only tolerates this systemic behavior but that has affirmatively trained its officers to m ake specific sworn assertions of expertise like the ones m ade by Defendant Volpe, even though the MPD and its officers know the assertions being made are unsubstantiated by the evidence that the MPD itself collects, false, or grossly misleading to the issuing judge.
90. Even though MPD offi cials and officers know that violent hom e raids in which government agents rifle through an entire li fetime’s worth of a fa mily’s most intim ate possessions are among the most intrusive, frightening, demeaning, and traumatizing experiences to which a governm ent can subject its citizens, th e MPD has failed to esta blish proper training and supervision policies to ensure that its officers engage in such raids for valid reasons.
91. The MPD has em ployed increasingly violen t, unnecessary, and devastating force in execu ting those warrants—even warrants in whic h there is no threat of violence and even when it is apparent that there is no risk of harm to officers. A dded to the enormous intrusion on privacy inherent in local governm ent agents ru mmaging through all of a person or fam ily’s physical an d electronic belongings is now the vi olent force of special m ilitarized MPD units, armed with laser-sighted weapons, machine guns, flash grenades, and shields.
92. Approximately 91% of all drug arrests in the District of Colum bia are of black people, even though black resid ents and white residen ts use illegal drugs at the sam e rates. On information and belief, the racial demographics of “training” and “experience”-based home raids are even more disproportionately black.
19

Case 1:14-cv-01317 Document 1 Filed 08/04/14 Page 20 of 25
Claims for Relief One: The Warrant Application Was So Lacking in Probable Cause that No Reasonable Officer C ould Have Relied on I t in Good Fait h. Reliance on th e Warrant Application Violated the Fourth Amendment. 93. Plaintiffs incorporate by reference the allegations in paragraphs 1-92 above. 94. The Defendants obtaining, planning, and executing the search warrant for the Plaintiffs’ hom e relied on a warrant application that was so f acially lac king in pro bable cau se that no reasonable officer could have relied on it in good faith to search the family’s home. The warrant app lication utte rly f ailed to provide any ev idence linking the hom e to an y crim inal activity, let alone to establish probable cause that the specific items sought would be found there. The warran t applicatio n’s self-def eating s tatements of “tra ining” an d “experience,” which recounted numerous possible locations other th an 1054 Quebec Place NW th at officers believed such evidence to be housed, dem onstrated that the Defendants had no idea whether any evidence would be found in the 1054 Quebec Place NW location in particular. Two: The Warrant A pplication Containe d Statemen ts that Were Know ingly and Recklessly False and Made Material Omissions 95. Plaintiffs incorporate by reference the allegations in paragraphs 1-94 above. 96. The warrant application presented to the S uperior Court judge contained numerous statements of “traini ng” and “experience,” as well as statem ents concerning the stop and arrest of Mordsen Box, that w ere knowin gly and recklessly fals e and m isleading. The warrant also om itted m aterial facts known to De fendant Volpe th at, if presented, would hav e undermined the asserted basis for seeking the warrant, including that police had been told at least two tim es prior to the warrant raid that Mr . Box did not live in the house. The Fourth Amendment prohibits obtaining a warrant on the basis of knowi ngly and recklessly false and
20

Case 1:14-cv-01317 Document 1 Filed 08/04/14 Page 21 of 25

misleading assertions as well as the knowing and reckless om ission of material information that

would undermine a probable cause finding.

Three: The Warrant Was Clearly Overbro ad Such that No Reasonable Officer Could Have Executed the Warrant In Good Faith.

97. Plaintiffs incorporate by reference the allegations in paragraphs 1-96 above.

98. The Fourth Am endment requires that search warrants and ap plications state with

particularity the things sought to be recovered and the probable cause to justify a belief that those

particular item s will be presen t in the place so ught to be s earched. T he warran t executed by

Defendants purportedly sought numer ous items, including item s never described in the warrant

application and item s for which no justification was presented in the warrant ap plication. For

example, nothing in the warrant application au thorized or justif ied the seizure and search of

computers or of a variety of other docum ents that perm itted officers raiding the ho me to search

through all of the most intimate paper and electronic details of the family’s life.

Four: The Warrant Application Cont Unconstitutional Manner.

ained Information Obtained in a n

99. Plaintiffs incorporate by reference the allegations in paragraphs 1-98 above.

100. The warrant application relied on m aterial information derived from the unlawful

stop and unconstitutional search of Mordsen Box. That inform ation was improperly included in

the warrant application in violation of the Fourth Amendment.

Five: The Obvious Lack of Probable Ca use and False and Reckless Statemen ts and Omissions Were the Result o f a Policy, Pattern, and Custom of Such Conduct by the MP D and the Result of the MPD’s Failure to Properly Train and Supervise Its Officers.

101. Plaintiffs incorporate by reference the allegations in paragraphs 1-100 above.

102. The MPD has established a pattern, policy, and practice of train ing its o fficers to

include in search warrant appl ications statements of “training” and “experience” that are

21

Case 1:14-cv-01317 Document 1 Filed 08/04/14 Page 22 of 25
unsubstantiated, vague, self-defeating, contradictory, woefully insufficient to substitute for actual evidence, and m aterially false and recklessly m isleading. The MPD ha s established a pattern, policy, and practice of providing through supervisors boilerpla te language that contains insufficient, false, and reckless s tatements of “training” and “experien ce” and then train ing its officers to use and rely on such statem ents concerning the habits of m arijuana and oth er criminals th at of ficers s top on the stree t as a purported s ubstitute f or any actu al evidence or police investigation into any eviden tiary link to a particular reside nce. According to the warrant returns and warrant ap plications p repared, coll ected, and retained by the MPD, this pa ttern, policy, and practice is implem ented by officers, pursu ant to their traini ng, in m any dozens of cases each year in which MPD officers h ave not obtained a s ingle piece of actual ev idence linking a residence to any illegal activity. The MPD has failed to train or properly supervise its officers on the Fourth Amendment standards for performing highly intrusive home raids.
Six: Officers Raiding the Home Used Excessive Force and Made Unnecessary and Unreasonable Seizures in Violation of the Fourth Amendment.
103. The Plaintiffs incorporate by reference the allegations in paragraphs 1-102 above. 104. The MPD officers raiding the h ome unlawfully search ed the home and its occupants and used unnecessary and excessive for ce. The Defendants pointed and continued to hold guns to the head of the teenage Mr. Harri son even though he was playing a video gam e quietly in his bedroom and was calm and never threatening to the Defe ndants. They then kept the teenage Mr. Harrison in handcuf fs for more than 30 minutes even though he posed no threat and even though the m etal handcuffs m ade him uncomfortable such th at the fam ily begge d Defendants to remove them, and even after it was clear that nothing illegal was in the home, that Mr. Box did not live in the hom e, and that Mr. Harriso n was complete ly inno cent of any wrongdoing. The Defendants also unlawfully bur st through the door of the hom e, knocking Ms.
22

Case 1:14-cv-01317 Document 1 Filed 08/04/14 Page 23 of 25
Harrison back, without justificat ion and without explaining that they w ere police officers who had arrived to execute a search warrant, and without giving her tim e to answer and open the door. The Defendants also seized S.H. at gunpoint, trapping her in her shower naked after failing to knock before entering her bathroom and fa iling to announce their presence before throwing open the shower curtain to allow her to identify herself. The officers also rem ained in the house, searching and rumm aging through th e home, even after the fam ily told them yet again that Mr. Box did not live the re and even after officers themselves told the family that Mr. Box had likely given the fam ily’s address as his residence be cause he knew the house was clean, which is a common thing for criminals like Mr. Box to do. By continuing to rummage through and ransack the hom e even after officers knew that a critical predicate of the warrant (that Mr. Box lived there) was untrue, officers violated the Fourth Amendment.
Seven: N egligence Per Se: Officers Raided the Home at Night W ithout Authorization Even Though The y Knew That Nighttime Warrants Are Dangerous and Unlawful Unless Specifically Authorized Under Standards Set Forth In D.C. Law.
105. The Plaintiffs incorporate by reference the allegations in paragraphs 1-104 above. 106. Both the Constitution and District of Columbia law (D.C. Code § 23 -523) require express justification for the nigh ttime execution of a sea rch warrant. The purpose of these laws is to protect residen ts from such searches and to avoid unreasonable situ ations such as bursting into a b athroom of an 11-year-o ld girl showering in prep aration for bed because of a m arijuana seizure 13 days before. The s upporting affidavit of Defendant Volpe does not state that the warrant could not be executed during the hours of daylight, does not state that the property sought was likely to be rem oved or destroyed if not seized fort hwith (indeed, officers waited 13 days from the time of the traffic stop to execute the search), and does not state that the property sought was unlikely to be found except at certain times or in certain circumstances. D.C. Code §
23

Case 1:14-cv-01317 Document 1 Filed 08/04/14 Page 24 of 25
23-522 requires a request for a nighttim e warrant be supported by prob able cause as to one of these three conditions. As a result, bursting in to the hom e at night, 13 days after stopping Mr. Box and while children were showering and preparing for bed, was an unreasonable, unjustifiable, dangerous, humiliating, and negligent intrusion into the family’s home.
107. When the affidavit for a search warrant does not state any reas onable justification for nighttim e execution, conducting the hom e raid at night violates both the statute and the Constitution. A reason able police officer plan ning the ho me search with knowledge of the warrant and supporting affidavit would know that th e warrant could not lawfully be executed at night. At no time did the Defendant officers have lawful authorization to execute this warrant at night. By planning and executing a nighttim e search without the authorization required by D.C. Code § 23-523, Defendant officers vi olated a statutory duty owed to the Plaintiffs and brought about the very harms that § 23-523 seeks to prevent.
Eight: The Illegal Nighttime Raid Was the Result of a Failure to Train and Supervise Police Officers Concerning Their Co nstitutional and Statutory Duties in Violation of the Fourth Amendment.
108. The Plaintiffs incorporate by reference the allegations in paragraphs 1-107 above. 109. The illegal nighttime raid was the r esult of a p olicy, practice, and custom of the MPD failing to train its officers that nighttime raids require reas onable justification and a policy and practice of executing warrants at night without proper justification for that serious and dangerous intrusion on private hom es. In the six-m onth period in cluding the ex ecution of the warrant in this case, according to p ublicly available warrant re turns prepared by MPD officers and supervisors, MPD officers conducted illegal nighttime raids in approxim ately 14% of the warrants that they ex ecuted in the Distr ict of Columbia. Of the 50 nigh ttime warrants execu ted in that period, 48 of them (96%) were facially illegal an d failed to state any justification for
24

Case 1:14-cv-01317 Document 1 Filed 08/04/14 Page 25 of 25

nighttime execution. The rem aining 4% contained extrem ely weak nighttime raid justifications.

Despite being aware of the ram pant abuse of ni ghttime sea rches and c ompiling s tatistics th at

almost 1 in 6 MPD warrants are im properly executed at night, the MPD knowingly and

recklessly d oes not p rovide prop er tra ining o r supervision to its of ficers on the illega lity of

nighttime raids and does not m eaningfully disc ipline of ficers who violate th e law by raid ing

homes at night without proper au thorization and justif ication. Had the Defendants raiding the

family’s home received proper training and supervision that nighttime raids without justification

are unreasonable home searches, they would not have raided the home at night and subjected the

family and the fam ily’s young children to the horrifying scene of 20 heavily arm ed officers

rushing into their home as they peacefully prepared for bed.

Request for Relief

WHEREFORE, Plaintiffs request that this Court issue a judgment against the Defendants:

a. Holding the appropriate Defendants liable to the Plaintiffs for compensatory damages in an amount appropriate to the proof adduced at trial;
b. Holding the appropriate Defendants (other than the District of Columbia) liable to the plaintiffs for punitive damages in an amount appropriate to the proof adduced at trial;
c. Awarding to Plaintiffs their costs and reasonable attorneys’ fees; and d. Granting such other and further relief as the Court deems just and proper.

Respectf

ully submitted,

__/s/ Alec Karakatsanis______________

Alec

Karakatsanis (D.C. Bar No. 999294)

Equal 916

Justice Under Law G Street, NW #701 Washington, D.C. 20001 (202) 681-2409

Attorney for Plaintiff

Date: August 4, 2014

25

 
 Case 1:14-cv-01317-RDM Document 24 Filed 09/25/15 Page 1 of 26

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 Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 1 of 56

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

S.H., a minor child, et al., Plaintiffs,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

Civil Action No. 14-1317 (RDM)

MEMORANDUM OPINION AND ORDER This is the final case in a series of cases seeking damages against the Metropolitan Police Department (“MPD”) and individual officers for allegedly searching private homes without probable cause.1 In this case, as in the other cases, Plaintiffs challenge the MPD’s practice of seeking search warrants based on an officer’s attestation that, in light of his or her “training” and “experience,” individuals suspected of certain crimes—typically involving the illegal distribution of drugs or unlawful possession of guns—are likely to have evidence of their unlawful activity in their homes. And here, as in the other cases, Plaintiffs allege that the officer who submitted the affidavit knew, or should have known, that just the opposite was true and that, in fact, people who are arrested outside their homes on drug or gun charges rarely keep evidence of their illegal activity in their homes. Although implicating these common themes, however, this case, like the others, turns on its unique facts and raises a host of distinct issues and claims.

1 All seven cases were brought by the same counsel. See Lane v. District of Columbia, 211 F. Supp. 3d 150 (D.D.C. 2016); Ennis v. District of Columbia, No. 15-cv-1497, 2016 WL 3072243, at *1 (D.D.C. May 31, 2016); Davis v. District of Columbia, 156 F. Supp. 3d 194 (D.D.C. 2016); Pitts v. District of Columbia, 177 F. Supp. 3d 347 (D.D.C. 2016); see also Queen v. District of Columbia, 15-cv-1518 (D.D.C. terminated May 9, 2017); A.B. v. District of Columbia, No. 15cv-1490 (D.D.C. terminated Apr. 6, 2017).

Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 2 of 56
The present dispute began when the MPD stopped a car in Northeast Washington, D.C., for driving with an allegedly obstructed license plate. That stop led to the arrest of Mordsen Box on various charges, including possession of approximately five ounces of marijuana with intent to distribute. Box carried an Ohio identification card, and the car he drove had Ohio license plates. But Box also had a suspended D.C. driver’s license, which indicated that he lived at 1054 Quebec Place, N.W., Washington, D.C. Based on this information, other information that is disputed for present purposes, and the attesting officer’s “training” and “experience,” Officer Taylor Volpe of the MPD obtained a search warrant. Armed with that warrant, the MPD then conducted a nighttime search of the Quebec Place residence thirteen days after Box was arrested.
When the MPD officers entered the home, they found Shandalyn Harrison (“Harrison”) sitting on the couch watching television with her seven- and thirteen-year-old daughters (“S.B.” and “S.R.,” respectively). They then found Harrison’s nineteen-year-old brother Sterling Harrison (“Sterling”) playing a video game in his bedroom,2 pointed a gun at his head, and placed him in handcuffs. The MPD officers proceeded to enter the bathroom where Harrison’s eleven-year-old daughter (“S.H.”) was showering, opened the shower curtain, and pointed a gun at her while she stood naked in the shower. In the course of the search, the MPD allegedly ransacked the home, but found no evidence of illegal activity. According to Plaintiffs, although Box is the biological father of S.B., he had not lived with the family in several years. Plaintiffs further assert that they had informed the MPD of this fact on at least two occasions prior to the search.
2 The Court with refer to Sterling Harrison by his first name to avoid confusion with Shandalyn Harrison, who the Court will simply refer to as “Harrison.”
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Plaintiffs challenge virtually every aspect of the search, from whether the MPD had probable cause to search Box’s car in the first place, to the candor of Officer Volpe’s affidavit in support of his application for the search warrant, to the validity and breadth of the warrant, and, finally, to the manner in which the search was conducted. They also challenge the policies and practices of the MPD relating to the training and supervision of its officers. Defendants, in turn, have moved to dismiss, arguing that (1) the individual defendants are entitled to qualified immunity as a matter of law, (2) the complaint fails to state a claim under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978) (“Monell”) against the MPD or the District of Columbia, and (3) the complaint fails to state a claim for negligence per se.
For the reasons explained below, the Court will grant Defendants’ motion in part and deny it in part.
I. BACKGROUND At this stage of the proceeding, the Court must accept the factual allegations contained in Plaintiffs’ amended complaint as true and must also consider the search warrant and affidavit, which are attached to and referenced in their complaint. See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A. Traffic Stop of Mordsen Box MPD officer Taylor Volpe stopped a car on April 5, 2013, in Northeast Washington, D.C., for driving with an obstructed license plate. See Dkt. 1-1 at 3–4. Plaintiffs assert—and the Court must accept as true—that the license plate was not obstructed and that Volpe did not have a legitimate reason to conduct the stop. See Dkt. 24 at 4 (Am. Compl. ¶ 15 & n.3). Volpe asked the driver, Mordsen Box, if the officers could search the car for “anything illegal.” Id. (Am. Compl. ¶ 16) (quoting Dkt. 1-1 at 4). Box replied that he did not think there was anything illegal in the car, but told Volpe he could search “if [he] ha[d] to.” Id. at 5 (Am. Compl. ¶ 18). Volpe
3

Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 4 of 56
confirmed: “[O]k, so can I look?” Id. Box responded with a “yeah.” Id. Volpe then searched the car and found a glass jar with 42.2 grams (about 1.5 ounces) of marijuana. Id. (Am. Compl. ¶ 19). Officers also found twenty-nine empty plastic sandwich bags in the vehicle, as well as $180 in cash during a search of Box’s person. Id.
Box was arrested and taken to the police station. Dkt. 1-1 at 4. Five to ten minutes after he was taken out of the transport vehicle, officers discovered another 103.2 grams (more than 3.6 ounces) of marijuana in a ziplock bag inside the police van. Id. Box was the last person to exit the vehicle, and the officers had not seen the marijuana inside before taking him to the station. Id. Box was charged with driving with a suspended license, possession of drug paraphernalia, and possession of marijuana with intent to distribute. Id. at 4–5. B. Officer Volpe’s Warrant Application
Three days after Box’s arrest, Volpe applied for a warrant to search the Quebec Place residence. In support of that application, Volpe submitted an affidavit attesting to various facts purporting to establish probable cause (1) that Box resided at 1054 Quebec Place, and (2) that a search would reveal evidence of illegal narcotics trafficking at his residence. See Dkt. 1-1.
With respect to Box’s place of residence, Volpe disclosed that the car Box was driving had Ohio license plates and that Box was carrying an Ohio identification card. Id. at 3–4. He further attested, however, that Box stated at the time of his arrest that “his current address [wa]s 1054 Quebec Place Northwest[,] Washington[,] D[.]C.,” and that “Box had a utility listing [dated] 12-27-2012 at 1054 Quebec Place.” Id. at 5. Volpe also attested that Box stated “that his D.C. driver’s license had been suspended,” that Volpe ran Box’s name “through [the] Wales/NCIC” database, and that Box’s “suspended D.C. license . . . list[ed] the same [Quebec Place] address as his place of residence.” Id. at 4–5.
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Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 5 of 56
With respect to the second question—whether there was probable cause to believe that a
search of Box’s residence would reveal evidence of his involvement in illegal narcotics
trafficking—Volpe relied principally on the “training” and “experience” he had gained over the
course of his year of service as a member of the MPD. Id. at 2. In addition to averring that Box
had been arrested in possession of approximately five ounces of marijuana, twenty-nine empty
plastic sandwich bags, and $180 in twenty-dollar bills, id. at 4, Volpe’s affidavit included several
paragraphs devoted to describing where those engaged in narcotics trafficking “routinely” or
“common[ly]” conceal contraband and other evidence of their criminal activity. Id. at 2–3. He
attested that, “[b]ased on [his] training and experience, [he] kn[e]w that”:
a. Individuals who deal in illegal controlled substances maintain books, records, receipts, notes, ledgers, bank records, money orders and other papers relating to the importation, manufacture, transportation, ordering, sale and distribution of illegal controlled substances, [and that] [t]hese [materials] are maintained where [those individuals] have ready access to them, such as in secured locations within their residence, the residences of friends, family members, and associates, or in . . . a stash house or safe house.
b. Individuals who deal in illegal controlled substances routinely conceal in their residences or the residences of friends, family members, and associates, or in the places of operation of the drug distribution activity, such as a stash house or safe house, large quantities of currency, financial instruments, precious metals, jewelry and other items of value, typically proceeds of illegal controlled substance transactions.
c. It is common for [drug dealers], especially [those who sell] marijuana, to secrete contraband related to [their] activity, such as scales, safes locked or unlocked[,] at their residences, or the residences of friends, family members, or associates, or in . . . a stash house or safe house.
d. Individuals who deal in the sale and distribution of controlled substances commonly maintain addresses and telephone number books or papers which reflect names, addresses and/or telephone numbers for their associates in their illegal organizations[;] [t]hese individuals often utilize cellular telephones, pagers and telephone systems to maintain contact with their associates in their illegal businesses[,] [and] [t]hese telephone records, bills and pager numbers are often found in their place of residence, or the residence of friends, family members, or associates, or in . . . a stash house or safe house.
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Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 6 of 56
e. Individuals who deal in illegal controlled substances often take photos of themselves, their associates, their property and illegal contraband[,] [and usually maintain those materials] in their places of residence, or the residences of friends, family members, or associates, or . . . a stash house or safe house.
f. Persons who traffic controlled substances maintain documents, letters and records relating to illegal activity for long periods of time[,] [and] [t]his documentary evidence is usually secreted in their residence, or the residences of friends, family members, or associates, or in . . . a stash house or safe house. . . .
g. Individuals involved in narcotics trafficking often own, possess and/or use weapons as a means to facilitate their illegal drug activities[,] [and] [s]uch weapons are most often secreted in their residence, or the residences of friends, family members, or associates, or in . . . a stash house or safe house. Id. at 2–3 (emphases added). And, finally, Volpe attested that based on his “experience and knowledge,” those “who distribute illegal narcotics make it a habit to store them at their place of residence” to avoid “being robbed of their product by rival . . . traffickers” and “to keep members of law enforcement from seizing their product.” Id. at 5. Plaintiffs dispute several assertions contained in Volpe’s affidavit. For one, they assert that Box never told Volpe that he lived at 1054 Quebec Place. Dkt. 24 at 7 (Am. Compl. ¶ 27). For another, they challenge Volpe’s assertion that a recent utility bill indicated that Box lived at the Quebec Place residence; they allege, to the contrary, that “none of the utility bills at the house had ever been in . . . Box’s name.” Id. (Am. Compl. ¶ 29). And, they allege that Volpe’s affidavit omitted the fact that MPD officers had been informed on at least two occasions “in the weeks and months leading up to the application for the warrant” that Box did not live at the Quebec Place residence. Id. at 6 (Am. Compl. ¶¶ 24–25). On one occasion, “Harrison told police at the door that . . . Box did not live there,” and, on the other, S.B., S.H., and S.R.’s grandmother told officers who came to the door the same thing. Id. (Am. Compl. ¶ 25).
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Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 7 of 56
Plaintiffs also dispute the accuracy of Volpe’s factual assertions regarding the knowledge gleaned from his “training” and “experience” regarding the “common” or “routine” habits of drug dealers. They allege, for example, that Volpe failed to inform the Superior Court judge who issued the warrant that, “in the vast majority of cases in which MPD officers execute such warrants after a traffic or street stop based only on their ‘training’ and ‘experience’ and not actual evidence connecting the home to criminal activity, the warrant returns submitted by officers themselves prove that MPD officers do not find the items that they seek.” Id. at 10 (Am Compl. ¶ 42). Indeed, according to Plaintiffs, “[i]f small amounts of marijuana are excluded, MPD officers failed to find illegal drugs that they were purportedly searching for in nearly 87% of the cases.” Id. (Am. Compl. ¶ 44). In their view, that success rate “is closer to what one would expect to find at random in searches of homes occupied by D.C. families.” Id. at 11 (Am. Compl. ¶ 46). Plaintiffs further contend that the Volpe affidavit, in at least one respect, refutes the probable cause it purported to establish—that is, rather than focusing on the likelihood that evidence of illegal activity will be found in the homes of those engaged in drug trafficking, it avers that this evidence might be found in the drug dealer’s home; or the homes of the drug dealer’s friends, family, or associates; or, if not in any of those places, in a stash house or safe house. Dkt. 1-1 at 2. According to Plaintiffs, Volpe’s own assertions, accordingly, minimize the likelihood that the relevant evidence will be found where the drug dealer resides, as opposed to one of the numerous other locations Volpe identifies. Dkt. 11 at 24–25.
A D.C. Superior Court judge signed the warrant application on April 8, 2013, and authorized the MPD to conduct a search on or before April 18, 2013. Dkt. 1-1 at 1, 6. The warrant provided: “YOU ARE HEREBY AUTHORIZED within 10 days of the date of issuance of this warrant to search in the daytime/at any time of the day or night, the designated (person)
7

Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 8 of 56
(premises) (vehicle) (object) for the property specified . . . .” Id. at 1. It listed a broad array of items for which the MPD was authorized to search, including illegal drugs, drug paraphernalia, scales, books, cash, containers, computers, records, notes, and telephone bills. Id. C. The Search of the Harrison Home
According to the amended complaint, approximately twenty armed MPD officers executed the search warrant at the Quebec Place residence on April 18, 2013, at 10:00 p.m. Dkt. 24 at 15 (Am. Compl. ¶ 62). When the officers arrived, Harrison was sitting on her couch with two of her daughters, S.B. and S.R., aged seven and thirteen, watching television. Id. at 3, 15 (Am. Compl. ¶¶ 10, 63). The officers “banged loudly” on the door but did not identify themselves as police, and, as “Harrison began to open the door . . . , the [officers] burst through the door, physically knocking her back.” Id. (Am. Compl. ¶ 64). The amended complaint further alleges that the officers entered the home “wielding shields, machine guns, handguns, and other weapons.” Id. (Am. Compl. ¶ 65). The officers kept Harrison and her two daughters on the couch as they searched the rest of the house. Id. (Am. Compl. ¶ 66).
Three officers found Harrison’s nineteen-year-old brother Sterling in his room playing a video game. Id. at 3, 15 (Am. Compl. ¶¶ 10, 67). The officers aimed their weapons at his head and handcuffed him “even though he had remained calm and had done nothing illegal, aggressive, or violent.” Id. The officers “continued to point guns at him even after it was clear that he did not pose any threat.” Id. They took Sterling out of his room, brought him to the family room where his sister and nieces were seated, and held up a photograph of the thirty-twoyear-old Box. Id. at 15–16 (Am. Compl. ¶ 68). The family told the officers that Sterling was not the man in the photograph. Id. at 16 (Am. Compl. ¶ 68). The officers, nonetheless, kept Sterling handcuffed for approximately thirty minutes. Id.
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Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 9 of 56
Meanwhile, another officer in a different part of the house entered a bathroom unannounced after hearing the shower running. Id. (Am. Compl. ¶ 70). He opened the shower curtain and found eleven-year-old S.H. naked in the shower. Id. at 3, 16 (Am. Compl. ¶¶ 10, 70– 71). With one hand displaying his shield, the officer allegedly pointed his weapon at the girl’s head. Id. (Am. Compl. ¶ 71). S.H. began “screaming and crying for her mommy” as she stood naked, unable to leave or to retrieve a towel or clothes because the officer was pointing his gun at her. Id. (Am. Compl. ¶ 72). Harrison responded to the screams and brought her daughter clothing. Id. (Am. Compl. ¶ 73). The entire family was then confined to the couch while the officers continued the search. Id. (Am. Compl. ¶ 74). The officers “ransacked the home, . . . and it took the family days of laboring to clean up their belongings.” Id. at 16 (Am. Compl. ¶ 75). The MPD did not locate any evidence of unlawful activity. Dkt. 1-1 at 1. D. Procedural History
Plaintiffs brought suit in August 2014, Dkt. 1, and filed an amended complaint in September 2015, Dkt. 24. Their amended complaint is sweeping. In Count One, Plaintiffs allege that the warrant was so lacking in probable cause that no reasonable officer could have relied upon it in good faith. Dkt. 24 at 20–21 (Am. Compl. ¶¶ 93–94). In Count Two, they allege that the warrant application contained a series of knowingly or recklessly false statements and material omissions. Id. at 21 (Am. Compl. ¶¶ 95–96). In Count Three, they allege that the warrant was so clearly overbroad that no reasonable officer could have executed it in good faith. Id. at 21–22 (Am. Compl. ¶¶ 97–98). In Count Four, they allege that the search of Box’s car that resulted in discovery of the marijuana and his arrest was unconstitutional and that this Fourth Amendment violation infected the warrant to search the Quebec Place residence. Id. at 22 (Am. Compl. ¶¶ 99–100). In Counts Five and Eight, Plaintiffs challenge the failure of the MPD to
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properly train and supervise its officers. Id. at 22–23, 25–26 (Am. Compl. ¶¶ 101–02, 108–09). In Count Six, they allege that the officers who searched the Quebec Place residence used excessive force and made unnecessary and unreasonable seizures. Id. at 23–24 (Am. Compl. ¶¶ 103–04). And, finally, in Count Seven, they allege that the nighttime search of the Quebec Place residence was per se negligent under the U.S. Constitution and D.C. law. Id. at 24–25 (Am. Compl. ¶¶ 105–07).
After Plaintiffs filed their amended complaint, the parties agreed to treat Defendants’ previously-filed motion to dismiss as though it had been filed in response to the amended complaint. Dkt. 31. The parties subsequently requested that the Court stay the action—along with the other similar cases pending before the Court—to permit them “to focus on settlement efforts,” and the Court granted a stay. See Minute Order (Dec. 9, 2016). The parties’ efforts to settle this case proved unsuccessful, and the Court lifted the stay in April 2017. See Minute Order (April 4, 2017).
II. LEGAL STANDARD A party moving to dismiss a complaint under Rule 12(b)(6) bears the burden of showing that the complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court need not accept as true any legal conclusions disguised as factual allegations, “‘naked assertion[s]’ devoid of ‘further
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Case 1:14-cv-01317-RDM Document 40 Filed 09/16/17 Page 11 of 56
factual enhancement,’” or “‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting Twombly, 550 U.S. at 555, 557) (alteration in original). The plaintiff, however, is entitled to “the benefit of all inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
Police officers enjoy qualified immunity from personal liability for civil damages if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable [officer] would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This limited protection “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). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The law is “[o]rdinarily” clearly established if there is “a Supreme Court or [] Circuit decision” on the issue or if “the clearly established weight of authority from other courts . . . ha[s] found the law to be as the plaintiff maintains.” Doe v. District of Columbia, 796 F.3d 96, 104 (D.C. Cir. 2015) (quoting Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)) (second alteration in original). There need not be “a case directly on point” for the right to be clearly established, “but existing precedent must have placed the statutory or constitutional question beyond debate” at the time the alleged violation occurred. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). In other words, the “contours of the right must be sufficiently clear” so that any “reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.
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635, 640 (1987). A plaintiff seeking to overcome a claim of qualified immunity bears the burden of showing that the constitutional right that the officers allegedly violated was clearly established at the relevant time. See Dukore v. District of Columbia, 799 F.3d 1137, 1145 (D.C. Cir. 2015).
III. ANALYSIS Although Defendants ask the Court to dismiss Plaintiffs’ amended complaint in its entirety—and they broadly assert that the individual officers are entitled to qualified immunity and that the amended complaint does not otherwise state a claim, Dkt. 8 at 1—their motion, in substance, addresses only a handful of the many issues raised by Plaintiffs’ amended complaint. It argues, in particular, that the lawfulness of the search of Box’s car is irrelevant to the present dispute; that the information that Plaintiffs say Volpe omitted from his affidavit was immaterial, as was Volpe’s allegedly false assertion that Box identified 1054 Quebec Place as his residence; that, as a matter of law, the MPD’s use of firearms and handcuffs in the course of the search did not constitute excessive force; that Plaintiffs’ Monell claims fail as a matter of law because their underlying claims fail; and that Plaintiffs have failed to allege the necessary elements of a claim for negligence per se. See Dkt. 8 at 9–18. The Court will, accordingly, confine its analysis to these issues, leaving the remaining issues for another day. The Court will first address issues relating to the warrant; will then turn to the execution of the search; will next address whether the complaint alleges a claim for negligence per se; and will finally address Plaintiffs’ Monell claims. A. Reliance on the Warrant (Counts One–Four) The right of a person “to retreat into his [or her] own home and there to be free from unreasonable governmental intrusion” lies “[a]t the core” of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511 (1961). As a result, with limited exceptions not applicable here, the Fourth Amendment prohibits “searches and seizures inside a home without a [valid]
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warrant.” Groh v. Ramirez, 540 U.S. 551, 558–59, 564 (2004); see also, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2006); Kyllo v. United States, 533 U.S. 27, 31 (2001). A warrant is valid, in turn, only if it is based “upon probable cause, supported by [o]ath or affirmation,” and only if it “particularly describ[es] the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. Here, Plaintiffs contend that the warrant lacked these basic features, rendering the search of their home effectively warrantless and, hence, unconstitutional.
To pierce the defendant officers’ qualified immunity, however, Plaintiffs must do more than prove that the warrant was invalid. They must, in addition, show that the flaws were so “obvious that no reasonably competent officer would have concluded that a warrant should [have] issue[d].” Malley v. Briggs, 475 U.S. 335, 341 (1986). The governing standard derives from United States v. Leon, 468 U.S. 897 (1984), an exclusionary rule case holding that evidence procured in violation of a criminal defendant’s Fourth Amendment rights need not be suppressed if the officers reasonably relied on a warrant. Although crafted in a different context, “the same standard of objective reasonableness that . . . applie[s] in the context of a suppression hearing [under] Leon, [also] defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest” or search. Malley, 475 U.S. at 344 & n.6.
Leon, however, also recognized certain “circumstances [in which] the officer[s] will have no reasonable grounds for believing that the warrant was properly issued,” 468 U.S. at 922–23 (footnote omitted), and those same exceptions apply in assessing whether an officer is immune from civil suit. No such reasonable grounds exist, for example, “if the magistrate or judge in issuing a warrant was misled [with respect to a material fact] by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Id. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)). “Nor would an officer
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manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. (internal quotation marks omitted); see also Messerschmidt v. Millender, 565 U.S. 535, 546–47 (2012). And “a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923; see also Groh, 540 U.S. at 565.
Counts One, Two, and Three of Plaintiffs’ amended complaint attempt to bring this case within these three Leon exceptions. See Dkt. 24 at 20–22 (Am. Compl. ¶¶ 94, 96, 98). Count Four, meanwhile, seeks to establish an additional exception—not recognized in Leon—that would prohibit officers from relying on warrants based on affidavits containing information obtained in violation of a third party’s Fourth Amendment rights. See id. at 22 (Am. Compl. ¶ 100). The Court considers each count, and each asserted exception, below.
1. False Statements and Material Omissions in Volpe’s Affidavit (Count Two) For analytic clarity, the Court begins with Count Two, which alleges that Officer Volpe secured the warrant only by knowingly and recklessly misleading the Superior Court judge who issued it. See id. at 21 (Am. Compl. ¶ 96). “Because a search warrant provides the detached scrutiny of a neutral magistrate,” the Supreme Court has “expressed a strong preference for warrants and [has] declared that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fail.” Leon, 468 U.S. at 913–14 (internal quotation marks and citations omitted). Under a rule first announced in Franks v. Delaware, and reaffirmed in Leon, however, that deference “gives way when the affidavit upon which the magistrate relied ‘contain[ed] a deliberately or recklessly false statement.’” Lane v. District of Columbia, 211 F. Supp. 3d 150, 173 (D.D.C. 2016) (quoting Franks, 438 U.S. at 165).
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A finding of deliberate or reckless falsity does not, however, end the inquiry. The Franks analysis includes a second step: The Court must also consider whether the false statements were “material.” Id. at 173 (citing Franks, 438 U.S. at 156). To assess materiality, the Court must construct a hypothetical affidavit that omits the false statements and then must ask whether the remaining portions of the affidavit would have been sufficient “to establish probable cause.” Franks, 438 U.S. at 156. “Th[is] same two-step approach,” moreover, also “applies to omissions.” Lane, 211 F. Supp. 3d at 173. “The Court must first determine whether the affiant deliberately or recklessly omitted relevant information and,” second, must determine “whether ‘inclusion’ of the omitted information ‘in the affidavit would [have] defeat[ed] probable cause.’” Id. (quoting United States v. Spencer, 530 F.3d 1003, 1007 (D.C. Cir. 2008)) (alterations in original). In both circumstances, the Court’s task is essentially the same. “It must excise any information that is allegedly false and include any information allegedly omitted,” id., and must then ask whether the revised, hypothetical affidavit would “still establish probable cause,” id. (quoting United States v. Cardoza, 713 F.3d 656, 659 (D.C. Cir. 2013)).
Finally, because the defendant officers seek to invoke their qualified immunity at the motion to dismiss stage, the Court must accept Plaintiffs’ allegations as true and must draw all reasonable inferences derived from those allegations in Plaintiffs’ favor. Iqbal, 556 U.S. at 678; Am. Nat’l Ins. Co., 642 F.3d at 1139. At this early stage of the proceeding, moreover, Plaintiffs are entitled to allege “intent, knowledge, and other conditions of a person’s mind . . . generally.” Fed. R. Civ. P. 9(b). That does not mean they may rely on “conclusory” allegations of knowledge or recklessness. Iqbal, 556 U.S. at 686–87. But Rule 9(b) relieves them of the need to meet the “elevated” pleading standards that apply in cases of fraud or mistake, and the Court must construe Plaintiffs’ factual allegations in their favor. Id.
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a. Subtractions As a first step in this analysis, the Court must excise from the Volpe affidavit any statements that Plaintiffs plausibly allege were knowingly or recklessly false. See Franks, 438 U.S. at 171–72. Plaintiffs argue—and, for present purposes, Defendants do not contest—that three categories of statements fit that bill. First, Plaintiffs allege that Volpe’s affidavit contained two falsehoods regarding the night of Box’s arrest. According to Volpe, (1) Box orally “advised” the officers after his arrest that the Quebec Place residence was “his current address” and (2) the officers learned that Box “had a utility listing” at the Quebec Place address dated four months prior to his arrest. Dkt. 1-1 at 5. Plaintiffs allege that both assertions are false. Dkt. 24 at 7 (Am. Compl. ¶¶ 27, 29). They allege that Box never told Volpe “that he lived at 1054 Quebec Place,” id. (Am. Compl. ¶ 27), and that “none of the utility bills at the house had ever been in . . . Box’s name,” id. (Am. Compl. ¶ 29). They further allege, moreover, that Volpe’s assertions were “knowingly and recklessly false and misleading.” Id. at 21 (Am. Compl. ¶ 96). Because Defendants concede that the Court must accept as true the allegation that “Box never stated he lived at [the Quebec Place] home,” Dkt. 8 at 13, and because Defendants do not address the remainder of Plaintiffs’ allegations on this point, see id. at 12–13, the Court will strike these allegedly false statements from the hypothetical affidavit. Second, Plaintiffs challenge the entirety of paragraph two of Volpe’s affidavit, which is quoted in substantial part above. See supra pp. 5–6. That paragraph averred that, based on his “training and experience,” Volpe knew that “[i]ndividuals who deal in illegal controlled substances” regularly keep many inculpatory items beyond illegal drugs at their homes (and at any other places to which they “have ready access”). Dkt 1-1 at 1–2. Volpe’s affidavit thus
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attested that there was probable cause to believe that the officers searching Box’s residence would find, for example, (1) “ledgers,” “receipts,” “plane and bus tickets,” “false identification[s],” and other “records” evidencing the “importation,” “manufacture,” “ordering,” and “distribution” of illegal drugs; (2) “currency,” “precious metals,” “jewelry,” and “other items of value” constituting proceeds from the illegal drug trade; (3) “cellular phones,” “address books,” and “photographs” identifying members of “illegal organization[s];” and (4) “weapons” used “to facilitate . . . illegal drug activities.” Id. The final sentence of paragraph six of the Volpe affidavit, moreover, essentially repeats these same assertions. Id. at 5.
In truth, Plaintiffs allege, experience teaches just the opposite. In the one-year period surrounding the warrant application in this case, MPD officers allegedly executed “dozens” of home search warrants based only on similar descriptions of their “training” and “experience.” Dkt. 24 at 8 (Am. Compl. ¶ 36). MPD records documenting the results of those searches, however, allegedly show that “it is extremely rare . . . that such ‘training’ and ‘experience’-based home raids in the District of Columbia yield any such documents or records of drug distribution.” Id. at 12 (Am. Compl. ¶ 51). According to the amended complaint, fewer than one percent of those searches found any such items. Id.
Plaintiffs further allege that paragraph two (and the final sentence of paragraph six) “left the issuing judge with the false impression that all ‘drug traffickers’ share the same relevant habits.” Id. (Am. Compl. ¶ 53). “[A] small-time neighborhood dealer on a D.C. corner,” they allege, “is far less likely to keep sophisticated computerized records of transactions or detailed financial banking records than a high-level multi-state or international manager of a drugdistribution enterprise.” Id. at 8 (Am. Compl. ¶ 36 n.9). According to Plaintiffs, Volpe knew that the evidence, at most, supported a finding that Box was a “street-level drug seller[],” and he
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was therefore “utterly unlikely to possess the various specific items” that paragraph two identified. Id. at 13 (Am. Compl. ¶ 55). For both of these reasons, according to Plaintiffs, Volpe had to have known that his “training” and “experience” did not support the sweeping averments contained in paragraph two of his affidavit. See id. at 12–13 (Am. Compl. ¶¶ 51, 55).
Defendants do not argue that Plaintiffs’ allegations regarding the known falsity of paragraph two (and the final sentence of paragraph six) are implausible. See Dkt. 8 at 12–13. Nor do they provide any other reasons why the Court should not treat those allegations as true for purposes of Defendants’ motion to dismiss. See id. The Court will, accordingly, strike paragraph two and the final sentence of paragraph six from the hypothetical affidavit.
Third, Plaintiffs challenge the veracity of the remainder of paragraph six of Volpe’s affidavit, which averred more modestly—again, based on Volpe’s “experience and knowledge”—that “persons who distribute illegal narcotics make it a habit to store [illegal drugs and drug paraphernalia] at their place[s] of residence.” Dkt. 1-1 at 5. This too, Plaintiffs allege, was knowingly or recklessly false. Dkt. 24 at 21 (Am. Compl. ¶ 96). According to Plaintiffs, a review of similar warrants that authorized the search of private homes for illegal drugs, based solely on the “training” and “experience” of MPD officers, showed that the “police officers failed to find any drugs, let alone the drugs they were looking for, in almost 66% of the cases.” Id. at 10 (Am. Compl. ¶ 43); see also id. at 18 (Am. Compl. ¶ 86). And when “small amounts of marijuana” are excluded—presumably, amounts insufficient to support an inference of intent to distribute—the failure rate jumps to “nearly 87%.” Id. at 10 (Am. Compl. ¶ 44). According to the amended complaint, these low success rates are “closer to what one would expect to find” in random searches of D.C. homes. Id. at 11 (Am. Compl. ¶ 46).
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The Court cannot, of course, conclude that these alleged success rates by themselves establish that Volpe’s averments in paragraph six were false. But that is beside the point for present purposes; it is not the Court’s role at this stage of the proceeding to decide whether Plaintiffs’ evidence is sufficient to meet their ultimate burden of proof. Rather, for present purposes, the Court need only decide whether the amended complaint contains sufficient factual detail to show that Plaintiffs’ claims are plausible. See, e.g., Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (“[W]e do not require ‘detailed factual allegations’ for a claim to survive a motion to dismiss.” (quoting Iqbal, 556 U.S. at 678)); Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167–68 (1993) (no heightened pleading standard for qualified immunity); see also Lane, 211 F. Supp. 3d at 175 (“[T]he statistics the plaintiffs offer may be flawed and . . . , standing alone, do not conclusively show that the warrant lacked probable cause. But it is not the Court’s role to resolve this dispute on a motion to dismiss.”). Although establishing the truth of Plaintiffs’ allegations at trial may prove “no simple task,” Davis v. District of Columbia, 156 F. Supp. 3d 194, 202 (D.D.C. 2016), Plaintiffs’ allegations regarding the success rate of similar warrants, Dkt. 24 at 10, 19, 21 (Am. Compl. ¶¶ 42, 89, 96), satisfy the far less demanding plausibility test, see Iqbal, 556 U.S. at 678; see also Pitts v. District of Columbia, 177 F. Supp. 3d 347, 360 (D.D.C. 2016) (construing complaint similarly).
The Court will therefore treat Plaintiffs’ allegations as true and strike the remainder of paragraph six from the hypothetical affidavit.
b. Additions The Court must also add to the hypothetical affidavit any knowing or reckless omissions of material facts. See Spencer, 530 F.3d at 1007. As discussed below, Plaintiffs identify four
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such omissions. Accepting the truth of Plaintiffs’ allegations for present purposes, the Court agrees that three of the four omissions were material and thus belong in the hypothetical affidavit.
First, Plaintiffs allege that Volpe knowingly omitted from his affidavit the fact that, twice in the preceding months, MPD officers had visited the Harrisons’ home to look for Box only to have the Harrisons inform them that Box did not reside there. See Dkt. 24 at 6, 21 (Am. Compl. ¶¶ 24–26, 96). On one occasion, according to the amended complaint, “S.B., S.H., and S.R.’s grandmother informed officers who came to the family’s door that . . . Box did not live there,” and, on another, “Harrison told police at the door that . . . Box did not live there.” Id. at 6 (Am. Compl. ¶ 25). Plaintiffs allege, moreover, that Volpe knowingly omitted this information from his affidavit. Id. at 21 (Am. Compl. ¶ 96). Defendants do not argue that these allegations are implausible or immaterial to the issuance of the warrant; indeed, in addressing Plaintiffs’ Franks argument, they do not discuss these alleged omissions at all. See Dkt. 8 at 12–13.
To be sure, a reasonable police officer need not blindly accept an occupant’s denial that a criminal suspect resides at the premises to be searched. But that does not mean that such assertions are necessarily immaterial. To the contrary, courts have long recognized that responses given to an officer’s questions—whether by the suspect or others—are among the factors properly considered in assessing probable cause. See United States v. Ortiz, 422 U.S. 891, 897 (1975); cf. Wesby v. District of Columbia, 765 F.3d 13, 21 (D.C. Cir. 2014) (explaining that suspects’ statements were “central to . . . consideration of whether a reasonable officer could have believed that the Plaintiffs had” committed a crime). The weight, if any, to be accorded to such a denial will turn on its context and other indicia of its reliability. Maryland v. Pringle, 540 U.S. 366, 371 (2003) (noting that a probable cause determination “depends on the totality of the
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circumstances”); United States v. Jackson, 415 F.3d 88, 91 (D.C. Cir. 2005) (“Probable cause . . . is an objective standard requiring an analysis of the totality of the circumstances and the facts known to the officers at the time of the search.”).
The Court will, accordingly, add this alleged omitted fact to the hypothetical affidavit and will assess its materiality in light of the “totality of the circumstances.”
Second, Plaintiffs allege that Volpe knowingly omitted from his affidavit “that, based on his and the MPD’s actual experience . . . , it was far more likely that no [inculpatory evidence, weapons, or drugs] would be found” at Box’s residence. Dkt. 24 at 11 (Am. Compl. ¶ 49); accord id. at 13 (Am. Compl. ¶¶ 55, 57). As a result, Plaintiffs contend, the affidavit should have apprised the judge that the MPD’s “training” and “experience”-based searches, in fact, have, low success rates. Id. at 11 (Am. Compl. ¶ 47). Defendants raise three arguments why these “low” success rates, even if true, would not have materially affected the assessment of probable cause. See Dkt. 8 at 12, 16. The Court is unpersuaded.
Defendants first cite Florida v. Harris, 568 U.S. 237, 245–46 (2013), for the proposition that “success and failure rates have limited usefulness” in assessing probable cause. Dkt. 8 at 12. But the paragraph of Harris on which Defendants rely merely explains that “field data” are a less reliable means of assessing a drug-sniffing dog’s accuracy than data collected in “controlled testing environments.” 568 U.S. at 245–46. That observation has no bearing on this case, and it certainly does not establish that police officers’ actual experiences are immaterial to the probable cause inquiry. See Lane, 211 F. Supp. 3d at 175–76; Davis, 156 F. Supp. 3d at 201. To the contrary, “the MPD’s own reliance on ‘training’ and ‘experience’—and the D.C. Circuit’s past reliance on assertions of that type—confirm that actual experience is properly considered as part of the ‘totality of circumstances’ that inform the probable cause determination.” Lane, 211 F.
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Supp. 3d at 175–76 (citing United States v. Washington, 775 F.3d 405, 409 (D.C. Cir. 2014); Cardoza, 713 F.3d at 66; Spencer, 530 F.3d at 1007; United States v. Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006); United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam)).
Defendants next accuse Plaintiffs of “attempt[ing] to quantify probable cause, a practice which the Supreme Court . . . expressly condemned” in Harris. Dkt. 8 at 12 n.4 (citing 568 U.S. at 243). Defendants are, of course, correct that the Supreme Court has repeatedly opined that the test for probable cause “is not reducible to ‘precise definition or quantification.’” Harris, 568 U.S. at 243 (quoting Pringle, 540 U.S. at 371); see also Illinois v. Gates, 462 U.S. 213, 235 (1983). But they are wrong that this admonition has any application here. Plaintiffs’ reliance on the MPD’s “training” and “experience” success rate does not purport to reduce the test for probable cause to a “[f]inely-tuned standard[],” Gates, 462 U.S. at 235, or to “precise definition or quantification,” Pringle, 540 U.S. at 371. Rather, Plaintiffs merely seek to prove the flip side of the practice they challenge; that is, while Officer Volpe and other members of the MPD have repeatedly sworn that drug traffickers “routinely,” “common[ly],” “often,” or “usually” conceal evidence of their criminal activity in their homes and elsewhere, see, e.g., Dkt. 1-1 at 2–3, Plaintiffs seek to show that the actual success rate of these searches “is closer to what one would expect to find at random in searches of homes occupied by D.C. families,” Dkt. 24 at 11 (Am. Compl. ¶ 46). Those alleged success rates, therefore, would have been material to the issuing judge’s probable cause analysis. See Lane, 211 F. Supp. 3d at 175–76; Davis, 156 F. Supp. 3d at 201.
Finally, Defendants argue that the alleged success rates for the MPD’s “training” and “experience” warrants would, if anything, have bolstered the judge’s finding of probable cause. In particular, they point to Plaintiffs’ allegation that “police officers failed to find any drugs, let
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alone the drugs they were looking for, in almost 66% of the cases,” Dkt. 24 at 10 (Am. Compl. ¶ 43), and argue that a 33% success rate “is strong evidence of probable cause,” Dkt. 8 at 12. That, however, mischaracterizes Plaintiffs’ allegation; they do not allege that police found what they were looking for 33% of the time, but only that they found “drugs” of some type and some quantity. Defendants ignore Plaintiffs’ remaining allegations, which culminate in the following averment: “Considering the significant usage rate of illicit drugs” in the District, “the MPD’s success rate . . . is closer to what one would expect to find at random in searches of homes occupied by D.C. families.” Id. at 11 (Am. Compl. ¶ 46).
More importantly, this argument—like the two above—miscomprehends the Court’s role at this stage of the proceeding. This is not the occasion for the Court to decide who is correct; to do so would deprive Plaintiffs of the opportunity to obtain discovery to support their allegations. Rather, the Court’s role is merely to decide whether the amended complaint contains sufficient detail to show that Plaintiffs’ core allegation—that the defendant officers knowingly misrepresented that drug dealers “make it a habit to store” the illegal narcotics that they distribute “at their place of residence,” Dkt. 1-1 at 5—is plausible, see Banneker Ventures, 798 F.3d at 1129; Lane, 211 F. Supp. 3d at 175. They have met that modest burden. The Court will therefore add to the hypothetical affidavit that Volpe and his fellow MPD officers knew based on their training and experience that drug dealers do not typically store the narcotics that they intend to distribute in their homes.
Third, Plaintiffs allege that Volpe’s affidavit omitted the distinction between “successful drug kingpins and traffickers” and “low-level street dealers,” Dkt. 24 at 13 (Am. Compl. ¶ 58), omitted the fact that the evidence found on Box at most placed him in the “low-level” category, id. at 13, 14 (Am. Compl. ¶¶ 55, 58), and omitted the fact that it is “utterly unlikely” that a
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“training” and “experience” warrant yields the types of “papers,” “records,” “photos,” and similar evidence sought in the Volpe affidavit, id. (Am. Compl. ¶¶ 55–56, 58); Dkt. 1-1 at 2–3, particularly where the suspect is simply a “street-level drug” dealer, Dkt. 24 at 12–13 (Am. Compl. ¶¶ 54–55). Plaintiffs allege, for example, that, over a one-year period, the “training” and “experience” warrants “failed to locate” the type of “documents or other records” sought here “in over 99% of” the searches. Dkt. 24 at 12 (Am. Compl. ¶ 51).
For the most part, Defendants offer no response to these allegations. They merely assert that “the alleged difference between ‘indigent low-level street dealers’ and ‘big time drug traffickers’ is irrelevant” because the defendant “officers had no way of determining which category . . . Box fell under,” Dkt. 8 at 12, and that, whether he “was a criminal mastermind or mere street dealer,” “a reasonably prudent person could conclude that further evidence of . . . Box’s criminal conduct could be found in his home,” id. at 13. Both of these contentions, however, merely resist Plaintiffs’ factual allegations to the contrary. Because the Court must accept Plaintiffs’ plausible, non-conclusory allegations of fact at this stage of the proceeding, see Iqbal, 556 U.S. at 678, that tack is unavailing.
The Court, accordingly, will add these alleged omitted facts to the hypothetical affidavit. Fourth, Plaintiffs allege that Volpe failed to inform the issuing judge that alleged drug dealers commonly lie to the police about their home addresses, and instead “give addresses of friends or family who[m] they know to be ‘clean.’” Dkt. 24 at 14 (Am. Compl. ¶ 61). Defendants’ motion fails to address this allegation. See Dkt. 8 at 12–13. But, because the Court has already assumed for purposes of the Franks analysis that Box never orally gave the officers any address, see Dkt. 24 at 7 (Am. Compl. ¶ 27); supra p. 16, the Court must conclude that this fourth alleged omission would have been immaterial. Although Plaintiffs were within their
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rights to plead in the alternative, for purposes of the instant Franks analysis, the Court will exclude this alleged omission from the hypothetical affidavit.
c. Hypothetical Affidavit Accepting Plaintiffs’ allegations as true and drawing all reasonable inferences in their favor, the Court must now consider how a “hypothetical” affidavit might have read, omitting any knowingly or recklessly false assertions and adding any knowing or reckless omissions. Thus recreated, the Volpe affidavit would have averred that (1) Box, when arrested, possessed approximately five ounces of marijuana, twenty-nine small plastic sandwich bags, and $180 in cash consisting of nine $20 bills; (2) this quantity of drugs, paraphernalia, and cash suggested that he was a “street-level” dealer; (3) at the time of his arrest, Box was driving a car with Ohio license plates, and he possessed an Ohio identification card; (4) Box had a suspended D.C. driver’s license (which could have been issued years earlier) that listed his residence as 1054 Quebec Place; (5) MPD officers had visited the Quebec Place residence at least twice in the previous weeks or months and they were told by both Harrison and S.B., S.H., and S.R.’s grandmother that Box did not live there; (6) the actual experience of MPD officers showed that street-level drug dealers do not “make it habit to store” the illegal narcotics that they distribute at their homes and, if anything, they are only slightly more likely to have illicit drugs of any kind in their homes than would be found “at random in searches of homes occupied by D.C. families;” and (7) their experience also showed that street-level drug dealers were exceptionally unlikely to keep records or similar evidence of drug importation, manufacturing, transportation, or distribution in their homes.
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For Defendants to prevail on Count Two at this stage of the proceeding, they must be able to show that this hypothetical affidavit would still have established probable cause to search Plaintiffs’ home for the items listed in the warrant—that is, to search their home for
drugs and/or narcotics, drug paraphernalia, scales, packaging and processing materials, safes, containers both locked and unlocked, cash, computers, records, tally sheets, books, receipts, notes, ledgers, bank records, telephone bills, money orders, and other papers documenting the importation, purchase, processing and manufacturing, ordering, sale, and distribution of [m]arijuana or any other illicit drugs. Dkt. 1-1 at 1. To do so, the hypothetical affidavit must establish probable cause to believe that (1) Box resided at the Quebec Place residence; (2) Box’s residence contained non-contraband items listed in the warrant and those items were linked to the crime under investigation; and (3) Box’s residence contained illegal drugs. As explained below, at least at this stage of the proceeding, Defendants’ argument fails at each step. First, the Court must consider whether the hypothetical affidavit supplies probable cause to believe that Box lived at the Quebec Place residence. As revised, the affidavit posits that Box was driving a car with Ohio license plates and was carrying an Ohio identification card and that the residents at the Quebec Place home informed the MPD on two occasions shortly before the search that Box did not live there. All of this, of course, weighs against a finding of probable cause that Box resided at the Quebec Place home. Defendants counter, however, that Box had a suspended D.C. driver’s license, which listed his address as 1054 Quebec Place, and they argue that this piece of evidence was alone sufficient to establish probable cause that Box resided at that address. Dkt. 8 at 13. Defendants are correct that a driver’s license—even a suspended driver’s license—may at times provide probable cause to believe that the driver lives at the address listed on the license. Plaintiffs do not challenge that general statement; rather, they argue that in this case that standard
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is not met. Most significantly, they note that a D.C. driver’s license is valid for eight years, see D.C. Code § 50-1401.01, raising the possibility that Box had lived at the Quebec Place residence years before his arrest but that he had long-since moved. Dkt. 11 at 29–30. The possibility that the address listed on Box’s suspended license had grown stale, moreover, was heightened by a number of factors. The fact that his license had been suspended, for example, could have removed any incentive Box might otherwise have had to update his address, and the fact that he drove a car with Ohio license plates and carried an Ohio identification card created additional doubt about his state of residence. This doubt, moreover, was only heightened by the Harrisons’ repeated denials that Box lived at the Quebec Place residence.
If Box’s D.C. driver’s license had been valid at the time of his arrest, or if his suspended license had been issued in the recent past, the Court might well conclude that the hypothetical Volpe declaration provided sufficient basis to find probable cause that Box lived at the Quebec Place residence. Furthermore, the Court recognizes that “greater lengths of time should be tolerated in assessing the staleness of information regarding a person’s address.” United States v. Johnson, 437 F.3d 69, 72 (D.C. Cir. 2006). On the present record, however, the Court cannot conclude that the hypothetical Volpe declaration established probable cause that Box still lived at the Quebec Place residence. The Court must assume that the allegations in the amended complaint are true and must draw all reasonable inferences in favor of Plaintiffs. Iqbal, 556 U.S. at 678. Accordingly, without knowing the age of Box’s suspended driver’s license or when it was suspended, the Court must assume that it was issued as long as eight years before Box’s arrest and that it had been suspended years ago. And, if so, these facts would not have provided a sufficient basis for a reasonable officer to disregard Box’s Ohio license plates and Ohio identification card, to disregard the Harrisons’ recent and repeated assertions that Box did not
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live with them, and to conclude that there was probable cause to believe that Box continued to live at the Quebec Place residence.
Second, the Court must address whether the hypothetical affidavit establishes probable cause to believe that Box’s residence contained “records” and similar evidence “documenting the importation, purchase, processing and manufacturing, ordering, sale, and distribution of [m]arijuana.” In considering this question, the Court must bear in mind that, where law enforcement seeks to seize “innocuous’ objects” of this type, “special ‘care’” is required to ensure that the search is “‘conducted in a manner that minimizes unwarranted intrusions upon privacy.’” United States v. Griffith, No. 13-3061, --- F.3d ---, 2017 WL 3568288, at *8 (D.C. Cir. Aug. 18, 2017) (quoting Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976)). This means, most notably, that in order to establish probable cause to search for and to seize “innocuous” items, the affiant must offer reason to believe that those items will not only be found, but that they are “owned” by the suspect or otherwise “linked” to the relevant crime. Id.
Nothing in the hypothetical affidavit establishes probable cause to reach either of these conclusions. The only basis Volpe offered for believing that Box’s residence would contain records, cash, cell phones, computers, photos, bank records, telephone bills, and other similar evidence “documenting the importation, purchase, processing and manufacturing, ordering, sale, and distribution” of illicit drugs, Dkt. 1-1 at 1, was his purported “training” and “experience.” Plaintiffs, however, have plausibly alleged that “it is extremely rare, if ever, that such ‘training’ and ‘experience’-based home raids . . . yield any such documents or records of drug distribution,” and that, indeed, the MPD has “failed to locate such documents or other records in over 99%” of these searches. Dkt. 24 at 12 (Am. Compl. ¶ 51). Once modified to include this
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assertion—or anything like it—the hypothetical affidavit does not come close to establishing probable cause to search for the broad array of non-contraband items identified in the warrant.
Third, the Court must consider whether the hypothetical affidavit would establish probable cause to believe that Box kept the illegal drugs that he distributed at his home. Although a closer question, the answer is the same. Plaintiffs do not argue that the prospect of finding marijuana or other illicit drugs in Box’s home—based on nothing more than Officer Volpe’s “training” and “experience”—was less than 1%, as they argue with respect to the noncontraband records the MPD sought. But they do allege that “in the vast majority of cases in which MPD officers execute” warrants supported only by their “training” and “experience,” the “MPD officers do not find the items that they seek.” Dkt. 24 at 10 (Am. Compl. ¶ 42). Here, Volpe’s affidavit did not seek evidence of Box’s personal drug use; it asserted “that persons who distribute illegal narcotics make it a habit to store [those drugs] at their place of residence.” Dkt. 1-1 at 5 (emphasis added). The question, accordingly, is whether his affidavit—as modified in the manner required under Franks—would provide probable cause to believe that the MPD would find drugs evidencing illegal narcotics trafficking at Box’s home. See United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (noting that, without a “link between the residence and [the suspected] criminal activity” under investigation, a warrant affidavit does not satisfy the probable cause standard); United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993) (explaining that, in multiple circuits, “residential searches have been upheld only where some information links the criminal activity [under investigation] to the defendant’s residence”). Moreover, Plaintiffs allege that, “[i]f small amounts of marijuana are excluded, MPD officers failed to find illegal drugs that they were purportedly searching for in nearly 87% of the cases.” Dkt. 12 at 10 (Am. Compl. ¶ 44). Construing this allegation in the light most favorable to
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Plaintiffs, as the Court is required to do at this stage of the proceeding, the Court reads the amended complaint to allege that the MPD only rarely finds distribution quantities of illegal drugs in such “training” and “experience”-based searches. Although it is yet to be seen whether Plaintiffs will be able to prove this allegation, it is sufficient to survive Defendants’ motion to dismiss.
Defendants counter by citing United States v. Thomas, 989 F.2d 1252 (D.C. Cir. 1993) (per curiam), and its holding that “observations of illegal activity occurring away from the suspect’s residence . . . can support a finding of probable cause . . . , if there is a reasonable basis to infer from the nature of the illegal activity observed, that relevant evidence will be found in the residence.” Id. at 1255; see Dkt. 8 at 12–13. That proposition finds additional support, moreover, in more recent precedent. In United States v. Spencer, for example, the D.C. Circuit remarked that “[c]ommon experience suggests that drug dealers must mix and measure the merchandise, protect it from competitors, and conceal evidence of their trade . . . in secure locations;” that “[f]or the vast majority of drug dealers, the most convenient location to secure items is the home;” and that “no training is required to reach this commonsense conclusion.” 530 F.3d at 1007. The D.C. Circuit reiterated that observation less than five years ago in United States v. Cardoza, concluding that, “[w]hen there is probable cause that a defendant is dealing drugs, there often tends to be probable cause that evidence of that drug dealing will be found in the defendant’s residence.” 713 F.3d at 661. And, just last month, the D.C. Circuit confirmed that its “decisions have considered probable cause to suspect a person of involvement in drug trafficking as supporting probable cause to believe drugs will be found in his residence.” Griffith, 2017 WL 3568288, at *6.
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This line of cases provides substantial support for Defendants’ position—but not enough to prevail on a motion to dismiss. Here, unlike in Thomas, Spencer, or Cardoza, the Court must decide the issue on the assumption that Plaintiffs’ allegations are true, and that, in fact, the “success rate in ‘training’ and ‘experience’-based home raids . . . is closer to what one would expect to find at random in searches of homes occupied by D.C. families.” Dkt. 24 at 11 (Am. Compl. ¶ 46). This is not to say that Plaintiffs are likely to prevail on this claim; moving beyond the pleadings, they will need to show (1) that the “commonsense conclusion” that drug dealers are likely to store in their homes the drugs that they intend to distribute is factually incorrect and (2) that Officer Volpe knowingly or recklessly misled the Superior Court judge who issued the warrant about his relevant “training” and “experience.” See Lane, 211 F. Supp. 3d at 176; Davis, 156 F. Supp. 3d at 202. That will be no easy task, but they have pled sufficient facts to put the question in issue.
The Court, accordingly, concludes that the hypothetical affidavit offers no “reasonable cause to believe that the specific ‘things’ to be searched for and seized [we]re located on the property to which entry [wa]s sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). The question, then, is what follows from this determination. Plaintiffs allege that that “[t]he Fourth Amendment prohibits obtaining a warrant on the basis of knowingly and recklessly false and misleading assertions.” Dkt. 24 at 21 (Am. Compl. ¶ 96). That, however, is not quite right. Rather, “[t]he Fourth Amendment protects against unreasonable searches and seizures, not against unreasonable warrants.” Lane, 211 F. Supp. 3d at 177. Plaintiffs would not, for example, have a “cause of action if the MPD had never executed the warrant.” Id. The Court will therefore construe Count Two as alleging that Volpe injured Plaintiffs “by causing a search of their home” to be conducted “through the acquisition of a search warrant that contained
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knowing or reckless misstatements and material omissions.” Id. That allegation is sufficient to state a claim. See Franks, 438 U.S. at 165.
Accordingly, the Court will DENY Defendants’ motion to dismiss Count Two of the amended complaint.3
2. Facial Inability to Establish Probable Cause (Count One) Count One invokes a different Leon exception: It alleges that Volpe’s affidavit “was so facially lacking in probable cause that no reasonable officer could have relied on it in good faith.” Dkt. 24 at 20 (Am. Compl. ¶ 94); see also 468 U.S. at 923. Unlike the Franks analysis applicable to Count Two, Count One’s facial challenge to the warrant does not turn on the affiant’s subjective mental state or entertain hypothetical modifications to his affidavit. Instead, the challenge considers the text of the affidavit as-is and asks “whether a reasonably well trained officer would have known” that the affidavit failed to establish probable cause. Leon, 468 U.S. at 922 n.23. “[T]he threshold for establishing this exception [to the good faith rule] is a high one.” Messerschmidt, 565 U.S. at 547. According to Plaintiffs, Volpe’s warrant application “was so facially lacking in probable cause that no reasonable officer could have relied on it in good faith to search the [Harrisons’] home.” Dkt. 24 at 20 (Am. Compl. ¶ 94). As Plaintiffs stress, probable cause to arrest a suspect does not equate with probable cause to search a private home. The first requires probable cause to believe that the suspect committed a crime, while the latter requires probable cause to believe that the specific object of the search will be found in a particular place. See Griffith, 2017 WL 3568288, at *4. It is this latter requirement that Plaintiffs contend was not satisfied. Dkt. 24 at
3 It is unclear whether Plaintiffs intend to assert Count Two against any defendant other than Volpe and, if so, on what theory. Because Defendants have not raised this issue, the Court will not reach it at this time.
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20 (Am. Compl. ¶ 94) (“The warrant application utterly failed . . . to establish probable cause that the specific items sought would be found [at the Harrisons’ home].”). Most broadly, they challenge the empirical premise of Volpe’s application—that drug dealers typically keep illicit drugs and other evidence of their criminal activity in their homes—and argue that “[t]his case . . . provides the forum to correct (and, for the first time, to scrutinize) this important factual misconception.” Dkt. 11 at 22. More specifically, they argue that the Volpe affidavit is selfdefeatingly overbroad, id. at 24; that is, accepting his averments as true, the affidavit provides no greater reason to believe that evidence of Box’s illegal activity would be found at his purported residence than at the home of a friend, the home of a family member, the home of an associate, a stash or safe house, or some other place from which Box operated—all of which are places that the affidavit asserts drug dealers “routinely” use to store their wares, Dkt. 1-1 at 2.
Although arguably the centerpiece of Plaintiffs’ case, Count One is decidedly not the centerpiece of Defendants’ motion to dismiss. Defendants’ opening brief devotes roughly a page to Count One, see Dkt. 8 at 15–16, and almost all of that argument has nothing to do with the (controlling) question whether the warrant application was so obviously deficient “that no reasonably competent officer would have concluded that a warrant should [have] issue[d],” Malley, 475 U.S. at 341. Instead, Defendants address Plaintiffs’ unrelated contentions that the Volpe affidavit contained allegedly false statements—that is, the issue raised by Count Two— and that Box was subject to an illegal search and seizure—that is, the issue raised by Count Four. See Dkt. 8 at 16. Ultimately, Defendants’ attack on Count One appears in a single sentence in a footnote, apparently responding to Plaintiffs’ contention that Volpe’s identification of the array of places at which drug dealers store the evidence of their criminal activity is self-defeating. See Dkt. 8 at 16 n.6. Without citation to any authority, that sentence merely asserts: “[T]he fact that
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evidence is also likely to be found elsewhere, outside the home, has no bearing on whether evidence is also likely to be found inside the home.” Id.
In the ordinary course, a party’s failure to engage on the relevant facts and law would be dispositive. It is not, after all, the Court’s “role to act as an advocate for the parties and [to] construct legal arguments on their behalf.” Cauderlier & Assocs., Inc. v. Zambrana, 527 F. Supp. 2d 142, 149 n.4 (D.D.C. 2007) (internal quotation marks, citations, and alterations omitted); see also Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C. Cir. 2001) (per curiam) (“A litigant does not properly raise an issue by addressing it in a ‘cursory fashion’ with only ‘bare-bones arguments.’”) (quoting Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997)). Plaintiffs, however, have opened the door to further argument. In their opposition brief, they argue over the course of almost twenty pages that Count One should stand and that permitting a search of virtually every drug trafficker’s home based on nothing more than a “training” and “experience” affidavit threatens to eviscerate the important distinction between searches incident to arrest and searches of a suspect’s home. Dkt. 11 at 9–26. Defendants’ reply brief, then, joins issue with Plaintiffs’ arguments and offers a short discussion of at least one of the key precedents, United States v. Thomas, 989 F.2d 1252 (D.C. Cir. 1993). Dkt. 12 at 2. And, finally, Plaintiffs respond to that discussion in a sur-reply brief. Dkt. 29 at 1–3. Under these circumstances, and because the Supreme Court has admonished that “qualified immunity questions should be resolved at the earliest possible stage of a litigation,” Anderson, 483 U.S. at 646 n.6, the Court concludes that it is appropriate to address Defendants’ late-asserted argument that Count One fails as a matter of law.
In assessing Count One, the Court must first consider whether the warrant application was sufficient to establish probable cause, see Griffith, 2017 WL 3568288, at *3, and, if not, it
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must then consider whether the application “was so obviously defective that no reasonable officer could have believed” that the warrant was valid, Messerschmidt, 565 U.S. at 555.
a. Sufficiency of the Volpe Affidavit With respect to the first inquiry, the “nexus requirement” of the Fourth Amendment requires probable “cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher, 436 U.S. at 556. The issuing magistrate, accordingly, must “make a practical, common[]sense decision whether, given all of the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238. As discussed above, the D.C. Circuit has repeatedly recognized that “probable cause to suspect a person of involvement in drug trafficking” can support a finding of “probable cause to believe drugs will be found in his residence,” Griffith, 2017 WL 3568288, at *6, and it has extended this conclusion to reach other “evidence of their trade,” Spencer, 530 F.3d at 1007. Plaintiffs dispute the factual accuracy of this commonsense nexus. That challenge to the accuracy of the Volpe declaration, however, is more properly asserted in Count Two. Here, the issuing Superior Court judge had in front of him evidence to support the asserted nexus, and he did not have the benefit of the evidence that Plaintiffs now seek to present. For purposes of Count One, the validity of the warrant must be assessed in light of the evidence that was presented to the Superior Court judge. Maryland v. Garrison, 480 U.S. 79, 85 (1987). Plaintiffs also argue, however, that Volpe’s affidavit was facially insufficient—and that argument carries far greater force. They argue, in particular, that Volpe’s own assertions undercut his contention that there was probable cause to believe that evidence of Box’s criminal activity would be found at his residence. In his affidavit, for example, Volpe attests that drug
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dealers “maintain” items evidencing their illegal activity where they “have ready access to them, such as in secured locations within their residence,” as well as “secured locations within . . . the residences of friends, family members, and associates, or in the places of operation of the drug distribution activity, such as a stash house or safe house.” Dkt. 1-1 at 2; see also id. at 3. As Plaintiffs put it, “the admission that the same items might be in any one of a number of other places entirely eviscerates any probable cause to search the Quebec Place home in particular.” Dkt. 11 at 25. “In other words, to the extent the evidence is ‘likely’ to be found at locations B, C, D, E, or F, it becomes less probable that the evidence is at location A.” Id.
Defendants’ entire response is found in the footnote in their opening brief—“the fact that evidence is also likely to be found elsewhere . . . has no bearing on whether evidence is also likely to found inside the home,” Dkt. 8 at 16 n.6—and in a few lines in their reply brief—“[h]ad the officers been searching for only one item,” this “argument might hold true,” but the MPD was actually “looking for any number of items related to the crime of drug distribution,” Dkt. 12 at 2. Neither argument, however, takes on the actual language of Volpe’s affidavit. He did not attest, for example, that drug dealers typically keep evidence of their criminal activity at their homes, at the homes of friends, family, and associates, and at their stash house. Rather, he attested that they keep evidence of their criminal activity “in secured locations” and then provided a litany of possibilities. Dkt. 1-1 at 2. Those possibilities, moreover, were not conjunctive; they were disjunctive. To borrow Plaintiffs’ lexicon, those possibilities included— in addition to A—B, C, D, E, or F. Defendants cannot now read Volpe’s affidavit to attest that there was probable cause to believe that evidence of illegality would be found at each of these locations.
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But reading the Volpe affidavit as disjunctive leads to two significant problems for Defendants. First, although the Supreme Court has held that the concept of probable cause is not reducible to “[f]inely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of evidence” or to a “numerically precise degree of certainty,” Gates, 462 U.S. at 235, more than “bare suspicion” is required, Brinegar v. United States, 338 U.S. 160, 175 (1949). That standard, however, is difficult to reconcile with Volpe’s affidavit; if all he knew was that drug dealers keep evidence of their criminal activity “in secured locations”—such as their homes; the homes of friends, family members, or associates; stash houses or safe houses; or other places of operation—he had nothing more than a “bare suspicion” that the relevant evidence would be found at any one of these many—potentially dozens—of places. Second, and relatedly, with the exception of the search for the drugs themselves, the Volpe affidavit draws no distinction between the likelihood that the evidence the MPD sought would be found at any one of these particular locations versus another. As a result, if the Court were to conclude that Volpe’s assertions were alone sufficient to establish probable cause to search Box’s home, it would need to reach the same conclusion with respect to the homes of Box’s friends, family members, associates, and others. That conclusion is more than the Fourth Amendment can stand.
The one exception to this is Volpe’s treatment of the illegal narcotics themselves. For reasons that are unexplained, Volpe does not take the same sweeping approach in describing the practice of drug dealers in storing illegal narcotics. Rather, he merely asserts “persons who distribute illegal narcotics make it a habit to store them at their place of residence.” Dkt. 1-1 at 5. Under D.C. Circuit precedent, that assertion is sufficient to establish probable cause, see, e.g., Griffith, 2017 WL 3568288, at *6; Cardoza, 713 F.3d at 661, and thus the corresponding portion of the warrant withstands facial scrutiny.
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b. Qualified Immunity The Court’s conclusion that the Volpe affidavit did not establish probable cause to search for any evidence other than illegal narcotics does not, however, end the inquiry. “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 [officer] would have known.’” Pearson, 555 U.S. at 231 (quoting Harlow 457 U.S. at 818). The availability of the defense “turns on the ‘objective legal reasonableness’ of the [government official’s] action[,] . . . assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson, 483 U.S. at 639 (quoting Harlow, 457 U.S. at 818, 819). Although “the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner,” Messerschmidt, 565 U.S. at 546, the issuance of a warrant does not “automatically” absolve the executing officers of any responsibility for the lawfulness of the search or seizure, id. at 554; see also id. at 554–55; Malley, 475 U.S. at 345–46. Rather, an officer executing a duly issued warrant may still be subject to a civil action for damages if “the warrant was ‘based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” Messerschmidt, 565 U.S. at 547 (quoting Leon, 468 U.S. at 923). Although the “threshold” for imposing liability is “high,” id., and officers will not typically “be expected to question the magistrate’s probable-cause determination,” Leon, 468 U.S. at 921, qualified immunity will not extend to cases in which the absence of probable cause was so “obvious that no reasonably competent officer would have concluded that a warrant should issue,” Malley, 475 U.S. at 341.
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As an initial matter, to the extent Count One is construed as a challenge to the executing officers’ reliance on the warrant application,4 the Court concludes that Officer Volpe cannot establish his entitlement to qualified immunity, at least at this stage of the proceeding. As explained above, Plaintiffs’ amended complaint alleges that Volpe prepared and submitted a false and misleading application for the warrant. That allegation places Officer Volpe in a fundamentally different posture than the other officers, who merely executed the warrant. “[B]ecause [Volpe] himself prepared the invalid warrant, he may not argue that he reasonably relied on the [Superior Court judge’s] assurance that the warrant” established probable cause. Groh, 540 U.S. at 564; see also Lane, 211 F. Supp. 3d at 178; Ennis v. District of Columbia, No. 15-cv-1497, 2016 WL 3072243, at *5 (D.D.C. May 31, 2016); Pitts, 177 F. Supp. 3d at 364.
With respect to the other officers, however, the relevant question is different; the Court must consider whether the application to search the Quebec Place residence was “so lacking in indicia of probable cause as to render” the executing officers’ belief that they were acting within the confines of the Fourth Amendment “entirely unreasonable.” Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in part)). For the reasons explained below, although a close question, the Court concludes that the defendant officers are entitled to qualified immunity on Count One.
In executing the Quebec Place warrant, a reasonable officer would have known that a “neutral magistrate” had issued the warrant after reviewing the Volpe affidavit. Messerschmidt,
4 Alternatively, it is possible to construe Count One as framed exclusively as a challenge to the facial validity of the warrant and affidavit. If read in this manner, Officer Volpe would stand in the same position as the other officers; that is, evidence of the accuracy of his attestations would not be at issue, and thus there would be no basis for holding Officer Volpe accountable but not the other officers. Because this question arises on a motion to dismiss, the Court will, once again, construe the amended complaint in the manner most favorable to Plaintiffs.
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565 U.S. at 547. He would also have known that the D.C. Circuit has repeatedly recognized—as a matter of “common[]sense”—that drug traffickers are not only likely to store illegal drugs, but also other evidence of their criminal activity like “drug paraphernalia, weapons, written records, and cash,” in their homes. See, e.g., Cardoza, 713 F.3d at 661. And he would have known that Officer Volpe had attested that he, in fact, knew from his training and experience that drug dealers keep evidence of their criminal activity at their homes. Dkt. 1-1 at 2–3, 5. From all of this, it would not have been difficult to draw the conclusion that there was probable cause to search Box’s (purported) home.
This case is complicated, however, by the fact that Volpe’s own affidavit undercut this “commonsense” conclusion by further positing that drug dealers routinely keep the evidence of their illegal activity at an array of possible locations—of which the drug dealer’s home is just one of many. As explained above, this flaw rendered the Volpe affidavit legally insufficient, but the Court is not convinced that the flaw was so acute—and so apparent—that the executing officers were “plainly incompetent” to rely on the warrant and affidavit. Notably, Plaintiffs fail to identify any judicial precedent holding that the addition of seemingly unnecessary averments regarding places other than the place to be searched had the effect of “eviscerat[ing] any probable cause” that might otherwise have been established. Dkt. 11 at 25. Here, moreover, there is little doubt that the executing officers would have been entitled to rely in good faith on the Volpe affidavit and resulting warrant in the absence of those extra averments. See, e.g., Griffith, 2017 WL 3568288, at *6. Although the addition of those averments did, in the Court’s view, undermine the Volpe affidavit, that flaw was not “so obvious[]” that any officer that failed to “question the magistrate’s probable-cause determination” was “plainly incompetent.” Messerschmidt, 565 U.S. at 547, 556 (internal quotation marks and citations omitted).
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The Court, accordingly, concludes that, although Volpe’s affidavit failed to establish probable cause to search the Quebec Place residences for evidence of Box’s alleged criminal activity (other than the drugs themselves), the executing officers (other than Volpe) are entitled to qualified immunity on Count One. The Court will therefore GRANT Defendants’ motion to dismiss Count One of the amended complaint, except as against Officer Volpe.
3. Facial Lack of Particularity (Count Three) Count Three invokes yet a third Leon exception: the principle that “a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923; see Dkt. 24 at 21–22 (Am. Compl. ¶ 98). Much as Count One involves a facial challenge to Volpe’s affidavit with respect to probable cause, see supra pp. 32, 35–37, Count Three involves a facial challenge to the resulting warrant with respect to whether it “particularly describ[es] the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV. Neither Defendants’ motion to dismiss nor reply brief, however, purports to address the merits of Count Three or the particularity requirement. See generally Dkts. 8, 12. The Court will, accordingly, DENY Defendants’ motion to dismiss Count Three. 4. Affidavit’s Use of Information Derived from the Allegedly Unlawful Car Stop of
Box (Count Four) Count Four of the amended complaint seeks to establish yet another exception to Leon’s good faith rule. In particular, Count Four alleges that the warrant to search the Quebec Place residence was invalid because Volpe’s affidavit “relied on material information derived from the unlawful stop and unconstitutional search of [third party] Mordsen Box.” Dkt. 24 at 22 (Am. Compl. ¶ 100). The Court rejected a similar argument in Lane v. District of Columbia, 211 F.
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Supp. 3d at 164–65, and, for the same reasons discussed there, the Court concludes that Count Four fails to state a claim.
As in Lane, the difficulty with Plaintiffs’ theory is that Fourth Amendment rights “are personal” and “may not be vicariously asserted.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2022 (2014) (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)); see also, e.g., Rakas v. Illinois, 439 U.S. 128, 134 (1978); Lane, 211 F. Supp. 3d at 164, 175 n.8; Pitts, 177 F. Supp. 3d at 362; Dkt. 8 at 11; Dkt. 12 at 3–4. Because the Harrisons are the only plaintiffs in this case, the question is whether Defendants violated their Fourth Amendment rights, not Box’s. And Plaintiffs’ Fourth Amendment rights extend only to their own persons, see, e.g., Brendlin v. California, 551 U.S. 249, 254 (2007), their property, United States v. Jones, 565 U.S. 400, 404 (2012), and anywhere else they have a “reasonable expectation of privacy,” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). That premise is dispositive of Count Four. There is no dispute that Plaintiffs were not present during the car stop, had no property interest or “reasonable expectation of privacy” in Box’s car, and had no interest or expectation of privacy in Box’s person or in his other property. Thus, although Box was free to bring his own lawsuit challenging the car stop’s constitutionality, Plaintiffs may not do so on his behalf.
Plaintiffs respond that they “are not vicariously asserting a claim on behalf of . . . Box,” but rather claiming “that they themselves had their Fourth Amendment rights violated by the issuance of an invalid search warrant that . . . Volpe never should have obtained.” Dkt. 11 at 37. In support of this contention, Plaintiffs cite cases dealing with the “exclusionary rule”—a judicially-created remedy that “excludes from a criminal trial any evidence seized from [a] defendant in violation of his Fourth Amendment rights.” Alderman, 394 U.S. at 171. The exclusionary rule “also prohibits the introduction of derivative evidence . . . that is the product of
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the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search.” Murray v. United States, 487 U.S. 533, 536–37 (1988). But that rule is of no relevance here; even assuming that the information that prompted Defendants’ search of the Harrisons’ home was the product of an illegal search of Box and his car, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s . . . property has not had any of his Fourth Amendment rights infringed” and cannot “benefit from the [exclusionary] rule’s protections.” Rakas, 439 U.S. at 134 (emphasis added). Plaintiffs, accordingly, “cannot challenge the lawfulness” of the warrant used to search their home “based on the claim that the sole evidence” connecting their home to “wrongdoing”—information obtained from Box—was allegedly “the product of an illegal search” of Box. Lane, 211 F. Supp. 3d at 165.
The Court will, accordingly, GRANT Defendants’ motion to dismiss Count Four. B. Execution of the Search (Count Six)
Count Six challenges the manner in which the search was executed, as distinct from whether the search was authorized by a valid warrant and probable cause. See Dkt. 24 at 23–24 (Am. Compl. ¶ 104); see also Terry v. Ohio, 392 U.S. 1, 28 (1968) (“The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all.”). Although these allegations are not organized into doctrinal boxes, their language evokes (1) a knock-and-announce claim and (2) an excessive force claim. See Dkt. 24 at 23–24 (Am. Compl. ¶ 104). The Court considers each claim below.
1. Failure to Knock and Announce “The Fourth Amendment requires law enforcement officers, before entering the premises to be searched, to announce their presence and provide residents an opportunity to open the door, except under exigent circumstances.” Jones v. Kirchner, 835 F.3d 74, 79 (D.C. Cir. 2016)
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(citation omitted); see also Hudson v. Michigan, 547 U.S. 586, 589 (2006); Pitts, 177 F. Supp. 3d at 370. Officers who fail to comply with this rule may be liable for injuries that proximately result. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986) (“[W]hen § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts.”); see also, e.g., Kane v. Lewis, 604 F. App’x 229, 234–35 (4th Cir. 2015) (applying proximate cause principles in the knock-and-announce context); cf. Hudson, 547 U.S. at 598 (acknowledging that knock-andannounce claims can yield compensatory damages for “anything more than nominal injury”).
Here, Plaintiffs allege that the defendant officers “unlawfully burst through the door of the home, knocking [Shandalyn] Harrison back, . . . without explaining that they were police officers . . . , and without giving her time to answer and open the door.” Dkt. 24 at 23 (Am. Compl. ¶ 104). They further allege that the failure to knock and announce was “without justification.” Id. And their opposition brief confirms their intent to pursue a knock-andannounce claim. See Dkt. 11 at 41–42 (citing Youngbey v. March, 676 F.3d 1114, 1119–21 (D.C. Cir. 2012), and Richards v. Wisconsin, 520 U.S. 385, 390 (1997)). Defendants’ motion to dismiss, however, fails to address these allegations. See Dkt. 8 at 13–15. Plaintiffs point this out in their opposition brief, see Dkt. 11 at 42 (observing that Defendants “do not . . . move to dismiss this [knock-and-announce] claim”); id. at 40 n.21 (same), but, even then, Defendants still ignore the issue in their reply, see generally Dkt. 12 (not discussing Count Six).
The Court will, accordingly, DENY Defendants’ motion to dismiss Plaintiffs’ knock-andannounce claim.
2. Excessive Use of Force Count Six also alleges that the defendant officers “used unnecessary and excessive force” in the course of the raid. Dkt. 24 at 23 (Am. Compl. ¶ 104). Plaintiffs allege, in particular, that
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the officers (1) unnecessarily placed Sterling in handcuffs for “more than [thirty] minutes,” even though he was not suspected of any illegal activity; and (2) unnecessarily pointed loaded guns at Sterling while he played video games and at eleven-year-old S.H. while she stood naked in the shower. See id.; Dkt. 11 at 40. These intrusive and humiliating techniques were excessive, Plaintiffs allege, because the entire family was at all times peaceful, compliant, and nonthreatening. See Dkt. 24 at 15, 16 (Am. Compl. ¶¶ 67, 69). They further allege that the officers had no reasonable basis to expect that Box or any other occupants of the house would be violent, armed, or dangerous. Id. at 17 (Am. Compl. ¶ 80).
In moving to dismiss Count Six, Defendants rely on the brightline rule established in Michigan v. Summers, 452 U.S. 692 (1980)—namely, that “[a] warrant to search for contraband . . . implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Dkt. 8 at 14 (quoting 452 U.S. at 705). Plaintiffs do not dispute, however, that the officers had the constitutional authority to detain them during the pendency of the search. See Dkt. 11 at 41. Rather, Plaintiffs contend that what would have been a lawful detention became unlawful by virtue of the officers’ use of excessive force. See id. at 40. As explained below, the lawfulness of this separate intrusion is not governed by a per se rule, but, instead, requires a balancing of all of the relevant facts and circumstances. Defendants’ motion, accordingly, is premised on the wrong standard.
As a general rule, the “seizure” of a person by law enforcement is reasonable only if the officers “have particular suspicion that [the person] is involved in criminal activity or poses a specific danger,” Bailey v. United States, 568 U.S. 186, 193 (2013), and only if the seizure “is carried out” in a reasonable manner, Graham v. Connor, 490 U.S. 386, 395 (1988). In Michigan v. Summers, the Supreme Court announced an important exception to the first of these
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requirements, “permitt[ing] officers executing a search warrant ‘to detain the occupants of the premises while a proper search is conducted.’” Bailey, 568 U.S. at 193 (quoting 452 U.S. at 705). Rather than requiring particularized suspicion, Summers’s rule “is categorical”—if a person is present while officers search a premises pursuant to a valid warrant, the officers will have constitutional authority to detain that person. See Muehler v. Mena, 544 U.S. 93, 98 (2005). Inherent in that authority, moreover, is the right to effectuate the detention using “reasonable force.” Id. at 98–99.
But Summers says little about how much or what type of force is reasonable. The “settled and exclusive framework” for resolving that issue is, instead, set forth in Graham v. Connor. See Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017). Unlike Summers’s per se rule, Graham “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). “The reasonableness of the use of force is evaluated under an ‘objective’ inquiry that pays ‘careful attention to the facts and circumstances of each particular case.’” Mendez, 137 S. Ct. at 1546 (quoting Graham, 490 U.S. at 396). Relevant factors include
[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396. Courts should also consider “the duration of [the] detention,” Muehler, 544 U.S. at 100, and “the information the officers had when the conduct occurred,” Mendez, 137 S. Ct. at 1546–47 (quoting Saucier, 533 U.S. at 207). In this case, Plaintiffs wisely concede that (assuming the validity of the warrant) the defendant officers had constitutional authority under Summers to detain the family in a reasonable manner while the officers conducted the search. See Dkt. 11 at 41. They do
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complain, however, that the officers detained them with unreasonable—or excessive—force, and, in particular, that the officers unreasonably kept Sterling in handcuffs for an unreasonable period of time and unreasonably pointed loaded guns at him and S.H. See, e.g., id. at 40, 42–45; Dkt. 24 at 15–17, 23–24 (Am. Compl. ¶¶ 62–78, 104). The Court will address each claim in turn.
a. Use of Handcuffs Defendants assert that Plaintiffs’ Fourth Amendment challenge to the defendant officers’ decision to handcuff Sterling—and to keep him handcuffed for more than thirty minutes—is foreclosed by language in Muehler v. Mena, 544 U.S. 93 (2005). See Dkt. 8 at 15. The Court agrees that Muehler is instructive—but not for the reasons Defendants assert. Rather than establish the type of per se rule Defendants advocate, Muehler reaffirms that the Graham balancing test applies to challenges to the use—and duration of use—of handcuffs. 544 U.S. at 98–100. In Muehler, the police “obtained a search warrant for 1363 Patricia Avenue.” 544 U.S. at 95. “Based on information gleaned from the investigation of a gang-related, driveby shooting,” the investigating officers “had reason to believe that at least one member of [the] gang . . . lived at” that address, and “[t]hey also suspected that the individual was armed and dangerous.” Id. While executing that warrant, a SWAT team found Iris Mena sleeping in her bedroom and “placed her in handcuffs at gunpoint.” Id. at 96. The officers then “handcuffed three other individuals found on the property” and kept all four people handcuffed in the garage for two to three hours while they searched the premises. Id. at 96, 100. Mena brought suit challenging the constitutionality of her detention. Id. at 96. The Supreme Court began by asking whether Mena’s detention was permissible under the per se rule of Summers. See id. at 98. Because that rule is categorical, the answer was “plainly”
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yes: “Mena’s detention for the duration of the search was reasonable under Summers,” the Court held, “because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.” Id. The Court then turned to the more fact-sensitive question whether, under the Graham balancing test, “[t]he officers’ use of force in the form of handcuffs . . . was reasonable.” Id. at 99. Although the Court concluded that the officers acted reasonably, it did so only after considering the particular facts and circumstances. The Court noted, for example, that “this was no ordinary search,” and it stressed that the government’s interest in using handcuffs was “at [its] maximum” because the “warrant authorize[d] a search for weapons” and because “a wanted gang member reside[d] on the premises.”5 Id. at 100. The Court, again applying the Graham balancing test, also concluded that “the duration of the use of handcuffs”—two to three hours—was not unreasonable in that case because “the case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons.” Id.
Justice Kennedy, who provided the fifth vote in Muehler, wrote separately “to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged,” especially when the persons detained “are not themselves suspected of any involvement in criminal activity.” Id. at 102–03 (Kennedy, J., concurring). Of particular relevance here, Justice Kennedy emphasized that, under Graham, the handcuffs should “be removed if, at any point
5 Although the warrant in this case did authorize a search for “weapons” along with many other items, Dkt. 1-1 at 3, this case is distinguishable from Muehler. There, police were investigating an actual shooting and were seeking weapons at a home believed to be occupied by “at least one” gang member. 544 U.S. at 95. Here, Volpe’s affidavit provided no case-specific reason to believe that Box ever possessed a weapon or stored it at his home, and instead relied on the generalized notion that “[i]ndividuals involved in narcotics trafficking often own . . . weapons.” Dkt. 1-1 at 3. In any event, Defendants do not argue that the warrant affidavit’s mention of weapons played a role in the officers’ decision to handcuff Sterling. Dkt. 8 at 15.
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during the search, it would be readily apparent to any objectively reasonable officer that removing the handcuffs would not compromise the officers’ safety or risk interference or substantial delay in the execution of the search.” Id. at 103.
Rather than explain why the facts and circumstances of this case support a similar result, Defendants revert to a version of the Summers per se rule. See Dkt. 8 at 15. Their argument regarding handcuffs consists almost entirely of the following three sentences:
[Muehler] made clear that “Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.” [Muehler], 544 U.S. at 98. Similarly, here, a warrant existed to search [the Harrisons’ residence] and [the Harrisons] were occupants of that address at the time of the search. Thus, detaining [the Harrisons] during the search was reasonable. Id. Defendants never address whether the relevant facts and circumstances justified handcuffing Sterling in the first place, or leaving him in handcuffs for more than thirty minutes. They do not argue that the officers had reason to suspect Sterling of any criminal activity; to fear for their safety or the safety of others; to believe that Sterling might flee if not handcuffed; or to believe that, if not handcuffed, Sterling might interfere in the orderly search of the premises. In short, Defendants make no effort to engage in the required case-specific balancing or to demonstrate that there was any reason to handcuff Sterling that would not apply to virtually anyone present during the search of virtually any residence for evidence of drug trafficking. Thus, on the present record, and absent any meaningful argument from Defendants, the Court will DENY Defendants’ motion to dismiss Count Six as it relates to the handcuffing of Sterling.
b. Use of Guns Defendants’ motion to dismiss Count Six as it relates to the defendant officers’ use of their guns suffers from a similar flaw: Once again, rather than argue that the officers’ actions
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were justified under the Graham balancing test, they seek to rely on a per se rule permitting officers to use “their guns drawn to secure ‘unquestioned command of the situation.’” Dkt. 8 at 14 (internal quotation marks added) (quoting Summers, 452 U.S. at 703). “The Supreme Court,” they say, “explicitly approved this practice” in Los Angeles County v. Rettele, 550 U.S. 609 (2007) (per curiam). Id. They are incorrect.
To start, Defendants are wrong to suggest that pointing a loaded weapon at an unarmed, naked child is invariably justified by the authority of law enforcement to “exercise unquestioned command of the situation” inherent in a lawful detention. Summers, 452 U.S. at 703, 705. As explained above, the Supreme Court has held that the per se authority to detain individuals during a court-authorized search does not carry with it the per se authority to use handcuffs as a means of accomplishing that detention; rather, the additional use of force inherent in the use of handcuffs must be “reasonable,” as assessed under the Graham balancing test. Muehler, 544 U.S. at 98–100. The use of a gun to detain an individual, however, represents an even greater use of force and poses an even greater risk of harm. It is thus difficult to imagine that the same logic the Supreme Court applied in Muehler would not also extend to the use of a gun to secure a premises during a search. And, in fact, several federal courts of appeals have held that it was objectively unreasonable for officers to point their weapons at unarmed, nonviolent, and cooperative detainees—particularly if the detainees are children.6 Notably, although Plaintiffs
6 See, e.g., Baird v. Renbarger, 576 F.3d 340, 344–46 (7th Cir. 2009) (“[The officer] pointed a submachine gun at various people when there was no suggestion of danger, either from the alleged crime that was being investigated or the people he was targeting. [It was clearly established that] [t]he Fourth Amendment protects against this type of behavior by the police.”); Turmon v. Jordan, 405 F.3d 202, 208 (4th Cir. 2005) (“We conclude that [as of] March 10, 2001, it would have been clear to a reasonable officer that he could not point his gun at an individual’s face, jerk him from his room, and handcuff him when there was no reasonable suspicion that any crime had been committed, no indication that the individual posed a threat to the officer, and no indication that the individual was attempting to resist or evade detention.”); Robinson v. Solano
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cite these cases, see Dkt. 11 at 43 & n.22, 45, Defendants make no attempt to distinguish or rebut
them, see generally Dkt. 12, or to cite any contrary authority, see Dkt. 8 at 14.
Defendants, instead, rely on a misreading of Los Angeles County v. Rettele, 550 U.S. 609
(2007) (per curiam). They are correct that Rettele declined to find a constitutional violation in a
situation in which police officers entered the wrong house and forced the naked occupants out of
bed at gunpoint. Id. But, the decision did not, as Defendants assert, “explicitly approve[]” the
practice of pointing guns at nude detainees, Dkt. 8 at 14, or establish that such conduct is always
reasonable. To the contrary, Rettele—like all the cases cited above—engaged in a fact-specific
balancing analysis. See id. at 614–15 (citing Muehler, 544 U.S. at 100; Graham, 490 U.S. at
396–99). The Supreme Court thus asked whether the officers “unnecessar[ily]” exposed the
detainees to humiliation and threats of deadly force, and whether they did so for an “unnecessary
period of time.” Id. Although the Supreme Court ultimately answered both questions in the
negative, id. at 615–16, it did so only because the officers faced an objectively reasonable fear
Cty., 278 F.3d 1007, 1013–14 (9th Cir. 2002) (en banc) (“[T]he officers’ use of a drawn gun pointed at [the plaintiff’s] head from close range constituted excessive force [because] . . . [t]he crime under investigation was at most a misdemeanor; the suspect was apparently unarmed and approaching the officers in a peaceful way[;] [t]here were no dangerous or exigent circumstances apparent at the time of the detention[;] and the officers outnumbered the plaintiff.”); Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1193 (10th Cir. 2001) (“Where a person has submitted to the officers’ show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the officer or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person . . . . Pointing a firearm directly at a child calls for even greater sensitivity . . . .”); Petta v. Rivera, 143 F.3d 895, 905 (5th Cir. 1998) (“A police officer who terrorizes a civilian by brandishing a cocked gun in front of that civilian’s face may not cause physical injury, but he has certainly laid the building blocks for a section 1983 claim against him.” (internal quotation marks omitted)); McDonald ex rel. McDonald v. Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (“It should have been obvious to [the officer] that . . . holding a gun to the head of a [nine]-year-old and threatening to pull the trigger . . . was objectively unreasonable given the alleged absence of any danger . . . and the fact that the victim, a child, was neither a suspect nor attempting to evade the officers or posing any other threat.”).
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that the detainees were armed, see id. at 611, 613–14, and because the officers lowered their weapons and permitted the detainees to dress themselves “once [they] were satisfied that no immediate threat was presented,” id. at 615.
As with the MPD’s use of handcuffs, Defendants never engage in the fact-specific analysis required under the governing precedent. They never address whether the defendant officers had reason to believe that Sterling posed a threat to their safety or whether it was necessary to enter the bathroom and to open the shower curtain with a drawn weapon. It seems unlikely, moreover, that these and similar questions are suited for resolution on a motion to dismiss. The amended complaint does not indicate, for example, how long an officer pointed his gun at S.H. while she stood naked in the shower or at Sterling while he was in his bedroom. It does not reflect whether the officers should have known as soon as they encountered Harrison and two of her young children sitting on the couch watching television that they did not face a significant risk. It does not indicate whether the officers could have taken less severe steps to protect their safety. Defendants may be able to show on summary judgment that the governmental interest in the officers’ use of their weapons outweighed the corresponding intrusion on Sterling and S.H.’s Fourth Amendment rights. But, in the present posture, and without any analysis of how the Graham balancing test applies to the facts alleged in the amendment complaint, the Court cannot resolve the issue in Defendants’ favor.
The Court will, accordingly, also DENY Defendants’ motion to dismiss Count Six with respect to the defendant officers’ use of their weapons. C. Use of a Nighttime Raid (Count Seven)
Count Seven of Plaintiffs’ amended complaint alleges that the defendant officers’ decision to conduct the search at night was negligent per se because they lacked sufficient justification under the Fourth Amendment and D.C. statutory law. See Dkt. 24 at 24–25 (Am.
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Compl. ¶¶ 106–07) (citing D.C. Code §§ 23-522, 523). The briefing on this issue gives new meaning to ships passing in the night. To start, Defendants’ opening brief argued that Plaintiffs “fail to allege the statute that provides the basis for their claim” and that, if Plaintiffs intend to rely on 21 U.S.C. § 879(a), that statute merely requires a finding of “probable cause to believe that grounds exist for the warrant.” Dkt. 8 at 17–18. Plaintiffs, in turn, respond with some bewilderment, noting that their amended complaint does not mention § 879(a), but rather relies on D.C. Code §§ 23-522 and 523. Dkt. 11 at 51. Unlike § 879(a), those statutes permit issuance of a warrant for a nighttime search only upon a showing of “probable cause to believe that (1) [the warrant] cannot be executed during the hours of daylight, (2) the property sought is likely to be removed or destroyed if not seized forthwith, or (3) the property sought is not likely to be found except at certain times or in certain circumstances.” D.C. Code § 23-522(c). Because Defendants’ motion failed to address the statutes that Plaintiffs cite in their amended complaint, they contend that the motion must be denied. That, however, does not end things. In their reply, Defendants return to their contention that only § 879(a) could apply here, noting that the D.C. Circuit has held that § 879(a) trumps §§ 23-522 and 523 in narcotics cases, Dkt. 12 at 6–7 (citing Gooding v. United States, 477 F.2d 428, 432 (D.C. Cir. 1973)). And, although Defendants fail to mention it, the Supreme Court affirmed the Gooding decision, holding that § 879(a) controls in “federal drug cases.” Gooding v. United States, 416 U.S. 430, 453–54 (1974). According to Defendants, because Plaintiffs failed to address their contention that § 879(a) was controlling, the Court should treat the issue as conceded in Defendants’ favor. Dkt. 12 at 7. Finally, Plaintiffs filed a sur-reply in which they disregard the statutory question altogether and argue that Defendants’ motion to dismiss Count Seven fails because Defendants do not “devote[] . . . a word” to Plaintiffs’ allegation that the search was unconstitutional. Dkt. 29 at 6–7.
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From these disconnected arguments, the Court draws the following conclusions: First, it appears that Plaintiffs no longer contend that §§ 23-522 and 523 are applicable here. Although the Supreme Court’s decision in Gooding arguably left open a slice of daylight because the warrant application in that case was submitted to this Court, and not to a judge on the Superior Court, and because the petitioner in that case was indicted for violations of federal law, 416 U.S. at 447, Plaintiffs’ decision to give up on their statutory claim appears to be well-advised. Second, Plaintiffs are correct that Defendants have not challenged their constitutional claim. Although that claim may face an uphill climb, see Youngbey, 676 F.3d at 1124–26, the Court cannot conclude sua sponte that the defendant officers are entitled to qualified immunity.
Accordingly, the Court will GRANT Defendants’ motion to dismiss Count Seven to the extent it relies on D.C. Code §§ 23-522 and 523, and will DENY the motion to the extent Count Seven relies on the Fourth Amendment. D. Municipal Liability (Counts Five and Eight)
Finally, Counts Five and Eight of the amended complaint seek to hold the District of Columbia liable under Monell v. Dep’t of Social Services of N.Y., 436 U.S. 658 (1978). Count Five alleges that “[t]he MPD has established a pattern, policy, and practice of training its officers to include in search warrant applications statements of ‘training’ and ‘experience’ that are unsubstantiated, vague, self-defeating, contradictory, woefully insufficient[,] . . . and materially false and recklessly misleading.” Dkt. 24 at 22 (Am. Compl. ¶ 102). Similarly, Count Eight alleges “a policy, practice, and custom of the MPD failing to train its officers that nighttime raids require reasonable justification” and “a policy and practice of executing warrants at night without proper justification for that serious and dangerous intrusion on private homes.” Id. at 25 (Am. Compl. ¶ 109).
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The Court must conduct a two-step inquiry when evaluating a claim for municipal liability. See Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)). “First, the court must determine whether the complaint states a claim for a predicate constitutional violation. Second, . . . [it] must determine whether the complaint states a claim that a custom or policy of the municipality caused the violation.” Id. (citing Collins, 503 U.S. at 120).
Here, the District’s sole argument for dismissing Plaintiffs’ claims for municipal liability rests on the premise that Plaintiffs have failed to adequately allege the required “predicate constitutional violation[s].” Dkt. 8 at 17. As explained above, however, the Court has already concluded that Plaintiffs’ have stated claims that the warrant would not have issued but for false and reckless statements and omissions contained in the Volpe affidavit and that, even if taken at face value, the warrant application was deficient. See supra pp. 14–41. In addition, the Court has also permitted Plaintiffs’ challenge to the nighttime search of their home to go forward under the Fourth Amendment. See supra pp. 52–54. Because those conclusions hold with respect to Counts Five and Eight, and because Defendants make no argument as to the second prong of the Baker test, Defendants’ motion to dismiss Counts Five and Eight must also fail.
The Court will, accordingly, DENY Defendants’ motion to dismiss Counts Five and Eight.
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CONCLUSION Defendants’ motion to dismiss, Dkt. 8, is hereby GRANTED as to Count Four, GRANTED in part and DENIED in part as to Counts One and Seven, and otherwise DENIED. SO ORDERED.

Date: September 16, 2017

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

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 Case 1:14-cv-01317-RDM Document 49 Filed 04/03/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA

___________________________________

)

S.H., et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 14-cv-1317 (RDM)

)

DISTRICT OF COLUMBIA, et al.,

)

)

Defendants.

)

___________________________________ )

CONSENT MOTION TO APPROVE SETTLEMENT OF MINORS Plaintiffs, by and through their attorneys, and pursuant to Title 21, Section 120 of the D.C. Code, move this Honorable Court to approve the settlement of three minors and, in support of the same, state as follows: 1. Plaintiffs commenced this civil rights action in August 2014, seeking compensatory and punitive damages to redress violations of their rights stemming from an execution of a search warrant in their home on April 18, 2013. Plaintiffs alleged that the Defendant Metropolitan Police Department (MPD) officers deliberately made false and misleading statements to obtain a warrant to search their home and committed various constitutional violations while executing the warrant. Plaintiffs further alleged that the warrant’s lack of probable cause was the result of a policy, pattern, and custom of such conduct by the MPD as a result of the MPD’s failure to properly train and supervise its officers. 2. Plaintiffs S.H., S.B., and S.R., all minor children, were present in the home when the MPD officers executed the search warrant. Plaintiffs allege that S.H., who was 11 years old at the time of the search, was taking a shower when a male MPD officer flung the shower curtain open and pointed a loaded gun at her naked body. Doc. 24, ¶¶ 70-72. Plaintiffs allege the minor

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children were detained on a couch while the MPD officers searched the home. Id. at ¶ 74. Plaintiffs allege that one of the defendant MPD officers told the family that S.B.’s father did not care about them and suggested that the armed home invasion was only happening to them because S.B.’s father was a bad man. Id. at ¶ 76. Plaintiffs further allege that the raid of the home was traumatizing and humiliating to them. Id. at 78.
3. The Plaintiffs and Defendant District of Columbia have reached a final agreement to settle Plaintiffs’ claims for the amount of $75,000.00.
4. $10,500.00 of the settlement will go to Sterling Harrison. Plaintiffs allege that Mr. Harrison, who was 19 years old at the time of the warrant execution, was peacefully playing video games when MPD officers burst into the room, pointed guns at him, handcuffed him, and kept him in handcuffs even after it was clear that he did not pose any threat. Id. at ¶¶ 67-68.
5. $42,000.00 of the settlement will go to Shandalyn Harrison.1 Shandalyn Harrison is the mother of S.H., S.B., and S.R. Plaintiffs allege that when Defendant MPD officers arrived at the home, Ms. Harrison was watching television with two of her daughters. Id. at ¶ 63. She was frightened when she heard her daughter screaming upstairs. Id. at ¶ 73. She spent days laboring to clean her home following the execution of the warrant. Id. at ¶ 75.
6. Plaintiffs entered into a contingency fee arrangement with their attorneys, agreeing that attorney’s fees would be deducted from the settlement. Attorney’s fees for Equal Justice Under Law total $22,500.00.2
1 Ms. Harrison has set up a trust for her daughters and will divide her portion of the settlement equally among her three daughters and herself, totaling $10,500.00 for each minor child and $10,500.00 for Ms. Harrison. 2 Plaintiffs’ counsel Katherine Hubbard and Alec Karakatsanis left employment with Equal Justice Under Law during the pendency of this case and are now attorneys with the non-profit organization Civil Rights Corps. Plaintiffs subsequently retained Civil Rights Corps to represent them. Civil Rights Corps waives any claim to attorneys’ fees in this matter.

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7. Title 21, Section 120(a) of the D.C. Code requires that settlement of actions involving minor children be approved by a judge of the court in which the action is pending.
8. Because the net value of the money that is due directly from Defendant to the minor children does not exceed $3,000.00, a guardian is not required to be appointed pursuant to D.C. Code section 21-120(b).
9. Pursuant to Local Rule 7(m), Plaintiffs’ counsel has conferred with counsel for the Defendants, who have consented to the relief sought in this motion.
10. Plaintiffs respectfully request that this Honorable Court approve the settlement entered into with Defendant District of Columbia with regard to the search warrant execution that occurred on June 7, 2013.
WHEREFORE; the Plaintiffs respectfully request that: A. The Motion to Approve Settlement of Minors be granted; B. the Settlement with Defendant District of Columbia with regard to each of the minor children be approved for $0; C. such other and further relief as the nature of the case may require.
Respectfully submitted, /s/ Katherine Hubbard Katherine Hubbard (DC Bar No. 1500503) Premal Dharia (DC Bar No. 484091) Civil Rights Corps 910 17th St NW, Suite 200 Washington, DC 20006 (202) 930-3835 katherine@civilrightscorps.org premal@civilrightscorps.org

Case 1:14-cv-01317-RDM Document 49 Filed 04/03/18 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion to Approve Settlement and the Proposed Order were forwarded electronically via CM/ECF this 3rd day of April, 2018 to:
Robert Deberardinis Aaron Finkhousen Assistant Attorneys General Office of the Attorney General 441 Fourth Street, NW, Suite 630 South Washington, D.C. 20001 Counsel for Defendants
/s/ Katherine Hubbard__________ Katherine Hubbard

 
 Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 1 of 10
CLOSED,JURY,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:14−cv−01317−RDM

S.H. et al v. DISTRICT OF COLUMBIA et al Assigned to: Judge Randolph D. Moss Cause: 42:1983 Civil Rights Act Plaintiff S.H. A minor child
Plaintiff S.B. A minor child

Date Filed: 08/04/2014 Date Terminated: 04/04/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alec George Karakatsanis Civil Rights Corps 910 17th Street, NW Suite 200 Washington, DC 20006 (202) 681−2721 Email: alec@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine Hubbard CIVIL RIGHTS CORPS 916 G Street, NW Suite 701 Washington, DC 20001 (202) 930−3835 Email: katherine@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Premal Dharia CIVIL RIGHTS CORPS 910 17th Street, NW 5th Floor Washington, DC 20006 (202) 780−7594 Email: premal@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phil Telfeyan EQUAL JUSTICE UNDER LAW 601 Pennsylvania Avenue NW Suite 900 Washington, DC 20004 (202) 505−2058 Email: ptelfeyan@equaljusticeunderlaw.org TERMINATED: 09/18/2017
represented by Alec George Karakatsanis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine Hubbard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Premal Dharia

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 2 of 10

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phil Telfeyan (See above for address) TERMINATED: 09/18/2017

Plaintiff
S.R. A minor child

represented by Alec George Karakatsanis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Hubbard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Premal Dharia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phil Telfeyan (See above for address) TERMINATED: 09/18/2017

Plaintiff SHANDALYN HARRISON

represented by Alec George Karakatsanis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Hubbard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Premal Dharia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phil Telfeyan (See above for address) TERMINATED: 09/18/2017

Plaintiff STERLING HARRISON

represented by Alec George Karakatsanis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Hubbard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Premal Dharia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 3 of 10

Phil Telfeyan (See above for address) TERMINATED: 09/18/2017

V. Defendant DISTRICT OF COLUMBIA
Defendant TAYLOR VOLPE Officer Defendant JOHN DOE OFFICERS 1−20 Defendant ZACHARY BLIER Officer

represented by Aaron Josiah Finkhousen OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−7334 Fax: (202) 730−0493 Email: aaron.finkhousen@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert A. DeBerardinis , Jr. OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6642 Fax: (202) 741−8895 Email: robert.deberardinis@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Alfonso Gonzalez SCHERTLER & ONORATO, LLP 901 New York Avenue, NW Suite 500 West Washington, DC 20001 (202) 628−4199 Fax: (202) 628−4177 Email: jgonzalez@schertlerlaw.com TERMINATED: 04/06/2017
represented by Aaron Josiah Finkhousen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Josiah Finkhousen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Aaron Josiah Finkhousen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 4 of 10

Robert A. DeBerardinis , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JAMES BOETLER Lieutenant

represented by Aaron Josiah Finkhousen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert A. DeBerardinis , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
GREGORY COLLINS Officer

represented by Aaron Josiah Finkhousen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert A. DeBerardinis , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
HERBERT NICHOLLS Officer

represented by Aaron Josiah Finkhousen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert A. DeBerardinis , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/04/2014
08/04/2014 08/04/2014 08/04/2014
08/05/2014 08/06/2014

# Docket Text
1 COMPLAINT against All Defendants with Jury Demand ( Filing fee $ 400 receipt number 0090−3798532) filed by S.H., SHANDALYN HARRISON, S.R., S.B., STERLING HARRISON. (Attachments: # 1 Exhibit 1, # 2 Civil Cover Sheet, # 3 Summons, # 4 Summons)(Karakatsanis, Alec) (Entered: 08/04/2014)
Case Assigned to Judge Ketanji Brown Jackson. (kb) (Entered: 08/04/2014)
2 NOTICE of Filing by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Attachments: # 1 Summons, # 2 Summons)(Karakatsanis, Alec) (Entered: 08/04/2014)
3 GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives; failure to conform to this Order may, when appropriate, result in the imposition of sanctions. Signed by Judge Ketanji Brown Jackson on 08/04/2014. (lckbj1) (Entered: 08/04/2014)
4 SUMMONS (3) Issued Electronically as to TAYLOR VOLPE, District of Columbia Attorney General, and the District of Columbia Mayor. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth, ) (Entered: 08/05/2014)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the District of Columbia Attorney General. Date of Service Upon District of Columbia

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 5 of 10

08/26/2014 08/27/2014
09/05/2014 09/08/2014
09/15/2014 09/22/2014
09/22/2014 09/22/2014
10/13/2014 10/23/2014 10/27/2014 11/13/2014 11/20/2014 01/27/2015 01/27/2015

Attorney General 8/5/2014. ( Answer due for ALL D.C. DEFENDANTS by 8/26/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DISTRICT OF COLUMBIA served on 8/5/2014, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on the Mayor of the District of Columbia. Date of Service Upon the Mayor for the District of Columbia on 08/05/2014. (Karakatsanis, Alec) (Entered: 08/06/2014)
6 Consent MOTION for Extension of Time to File Answer re 1 Complaint, by DISTRICT OF COLUMBIA (Gonzalez, Joseph) (Entered: 08/26/2014)
MINUTE ORDER granting, for good cause shown, 6 Consent Motion for Extension of Time to Answer, nunc pro tunc to 9/26/2014. Defendant District of Columbia shall answer or otherwise respond to the Complaint by 9/9/2014. Any further requests for extensions of time must comply with 3 the Court's General Order and Guidelines for Civil Cases. Counsel is specifically directed to Section 5 of the Appendix to the General Order and Guidelines. Signed by Judge Ketanji Brown Jackson on 08/27/2014. (lckbj1, ) (Entered: 08/27/2014)
7 Second MOTION for Extension of Time to File Answer re 1 Complaint, by DISTRICT OF COLUMBIA (Finkhousen, Aaron) (Entered: 09/05/2014)
MINUTE ORDER granting, for good cause shown, 7 Motion for Extension of Time to Answer. Defendant District of Columbia shall answer or otherwise respond to the complaint by 9/15/2014. Signed by Judge Ketanji Brown Jackson on 09/08/2014. (lckbj1) (Entered: 09/08/2014)
8 MOTION to Dismiss by DISTRICT OF COLUMBIA, JOHN DOE OFFICERS 1−20, TAYLOR VOLPE (Finkhousen, Aaron) (Entered: 09/15/2014)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TAYLOR VOLPE served on 8/5/2014, answer due 8/26/2014, WAIVER OF SERVICE by S.R.; S.B.; SHANDALYN HARRISON; S.H.; STERLING HARRISON. TAYLOR VOLPE waiver sent on 8/5/2014, answer due 8/26/2014. (Karakatsanis, Alec) (Entered: 09/22/2014)
10 Unopposed MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Karakatsanis, Alec) (Entered: 09/22/2014)
MINUTE ORDER granting, for good cause shown, 10 Motion for Extension of Time to File Response 8 MOTION to Dismiss. Plaintiffs' response to 8 is due by by 10/16/2014. Signed by Judge Ketanji Brown Jackson on 09/22/2014. (lckbj1) (Entered: 09/22/2014)
11 Memorandum in opposition to re 8 MOTION to Dismiss filed by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R.. (Karakatsanis, Alec) (Entered: 10/13/2014)
12 REPLY to opposition to motion re 8 MOTION to Dismiss filed by DISTRICT OF COLUMBIA, JOHN DOE OFFICERS 1−20, TAYLOR VOLPE. (Finkhousen, Aaron) (Entered: 10/23/2014)
13 MOTION for Leave to File Sur−Reply by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Karakatsanis, Alec) (Entered: 10/27/2014)
14 Memorandum in opposition to re 13 MOTION for Leave to File Sur−Reply filed by DISTRICT OF COLUMBIA, JOHN DOE OFFICERS 1−20, TAYLOR VOLPE. (Finkhousen, Aaron) (Entered: 11/13/2014)
Case randomly reassigned to Judge Randolph D. Moss. Judge Ketanji Brown Jackson no longer assigned to the case. (gt, ) (Entered: 11/20/2014)
15 MOTION to Compel by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Karakatsanis, Alec) (Entered: 01/27/2015)
MINUTE ORDER: It is hereby ORDERED that Defendants shall respond to the Motion to Compel on or before February 10, 2015. Plaintiffs shall file a reply on or before February 17, 2015. The parties shall appear for a status conference on February

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 6 of 10

01/28/2015
02/04/2015 02/10/2015 02/11/2015 02/11/2015
02/12/2015 02/13/2015 02/16/2015
02/16/2015 02/20/2015 02/20/2015 02/20/2015
02/23/2015 03/11/2015 03/20/2015
04/22/2015 09/25/2015

20, 2015 at 10:00 AM, in Courtroom 21. Signed by Judge Randolph D. Moss on January 27, 2015. (lcrdm3, ) (Entered: 01/27/2015)
Set/Reset Deadlines/Hearing: The Defendants shall respond to the Motion to Compel on or before 2/10/2015; Plaintiffs shall file a reply on or before 2/17/2015. A Status Conference is set for 2/20/2015, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 01/28/2015)
16 NOTICE of Appearance by Phil Telfeyan on behalf of SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (znmw, ) (Entered: 02/05/2015)
17 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Compel by DISTRICT OF COLUMBIA (Gonzalez, Joseph) (Entered: 02/10/2015)
18 RESPONSE re 17 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Compel filed by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R.. (Telfeyan, Phil) (Entered: 02/11/2015)
MINUTE ORDER: Upon consideration of Defendants' Motion for Extension of Time to File Response/Reply 17 , it is hereby ORDERED that the motion is GRANTED. Defendants shall respond to Plaintiffs' Motion to Compel 15 on or before February 13, 2015. Signed by Judge Randolph D. Moss on 2/11/2015. (lcrdm2, ) (Entered: 02/11/2015)
Set/Reset Deadline: Defendants shall respond to Plaintiffs' Motion to Compel 15 on or before 2/13/2015. (kt) (Entered: 02/12/2015)
19 RESPONSE re 15 MOTION to Compel filed by DISTRICT OF COLUMBIA. (Attachments: # 1 Exhibit)(Gonzalez, Joseph) (Entered: 02/13/2015)
MINUTE ORDER: It is hereby ORDERED that the parties shall be prepared to discuss the pending motion to compel and whether limited discovery should be authorized at this time at the February 20, 2015 status conference. Signed by Judge Randolph D. Moss on February 16, 2015. (lcrdm3, ) (Entered: 02/16/2015)
20 REPLY to opposition to motion re 15 MOTION to Compel filed by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R.. (Telfeyan, Phil) (Entered: 02/16/2015)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 2/20/2015. (Court Reporter Lisa Foradori) (kt) (Entered: 02/20/2015)
21 NOTICE OF WITHDRAWAL OF APPEARANCE as to DISTRICT OF COLUMBIA, JOHN DOE OFFICERS 1−20, TAYLOR VOLPE. Attorney Aaron Josiah Finkhousen terminated. (Finkhousen, Aaron) (Entered: 02/20/2015)
MINUTE ORDER: As discussed at today's status conference, the Court shall construe Plaintiff's Motion to Compel 15 as a Motion for Expedited Discovery. It is hereby ORDERED that Defendants may file any supplemental opposition to the motion on or before March 6, 2015. Signed by Judge Randolph D. Moss on 2/20/2015. (lcrdm2, ) (Entered: 02/20/2015)
Set/Reset Deadline: The Defendants may file any supplemental opposition to the motion on or before 3/6/2015. (kt) (Entered: 02/23/2015)
22 NOTICE regarding consent to expedited discovery by DISTRICT OF COLUMBIA (Gonzalez, Joseph) (Entered: 03/11/2015)
MINUTE ORDER: In light of Defendants' Notice Regarding Consent to Expedited Discovery 22 , it is hereby ORDERED that Plaintiffs' Motion to Compel 15 is DENIED without prejudice as moot. Signed by Judge Randolph D. Moss on March 20, 2015. (lcrdm3, ) (Entered: 03/20/2015)
23 MOTION for Leave to File Amended Complaint by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Attachments: # 1 Exhibit Exhibit 1: First Amended Complaint)(Karakatsanis, Alec) (Entered: 04/22/2015)
MINUTE ORDER: Upon consideration of Plaintiffs' Motion for Leave to File Sur−Reply 13 and Defendants' Opposition 14 , it is hereby ORDERED that the motion

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 7 of 10

09/25/2015 09/25/2015
09/29/2015 09/29/2015 09/29/2015 09/29/2015 09/30/2015 10/13/2015 10/14/2015 10/15/2015 10/23/2015 10/28/2015 12/04/2015 12/09/2016
12/09/2016

is GRANTED. It is further ORDERED that Plaintiffs may file a sur−reply of no more than seven pages on or before September 30, 2015. Signed by Judge Randolph D. Moss on 9/25/2015. (lcrdm3, ) (Entered: 09/25/2015)
MINUTE ORDER: Upon consideration of Plaintiffs' Motion for Leave to File Amended Complaint 23 , it is hereby ORDERED that the motion is GRANTED. The Amended Complaint [23−1] is deemed FILED. Signed by Judge Randolph D. Moss on 9/25/2015. (lcrdm3, ) (Entered: 09/25/2015)
24 First AMENDED COMPLAINT against ZACHARY BLIER, JAMES BOETLER, GREGORY COLLINS, DISTRICT OF COLUMBIA, JOHN DOE OFFICERS 1−20, HERBERT NICHOLLS, TAYLOR VOLPE with Jury Demand filed by S.R., S.B., SHANDALYN HARRISON, S.H., STERLING HARRISON.(zrdj) (Entered: 09/28/2015)
25 ENTERED IN ERROR.....NOTICE by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. re 24 Amended Complaint (Karakatsanis, Alec) Modified on 9/29/2015 counsel WILL Refile (zrdj). (Entered: 09/29/2015)
26 NOTICE of Summons by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. re 24 Amended Complaint (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(Karakatsanis, Alec) (Entered: 09/29/2015)
27 SUMMONS (4) Issued Electronically as to ZACHARY BLIER, JAMES BOETLER, GREGORY COLLINS, HERBERT NICHOLLS. (Attachments: # 1 Consent Forms)(zrdj) (Entered: 09/29/2015)
28 NOTICE by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. re 24 Amended Complaint (Attachments: # 1 Exhibit Search Warrant Application)(Karakatsanis, Alec) (Entered: 09/29/2015)
29 SURREPLY to re 8 MOTION to Dismiss filed by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R.. (Karakatsanis, Alec) (Entered: 09/30/2015)
30 Consent MOTION for Extension of Time to File Answer re 24 Amended Complaint by DISTRICT OF COLUMBIA (Gonzalez, Joseph) (Entered: 10/13/2015)
MINUTE ORDER: Defendants' Consent Motion for Extension of Time 30 is hereby GRANTED. Defendants shall respond to Plaintiffs' First Amended Complaint 24 on or before October 23, 2015. Signed by Judge Randolph D. Moss on 10/14/2015. (lcrdm3, ) (Entered: 10/14/2015)
Set/Reset Deadline: Defendants shall respond to Plaintiffs' First Amended Complaint 24 on or before 10/23/2015. (kt) (Entered: 10/15/2015)
31 Joint MOTION for Order permitting the Parties to incorporate previous Motion to Dismiss briefing by DISTRICT OF COLUMBIA (Gonzalez, Joseph) (Entered: 10/23/2015)
MINUTE ORDER: The parties' Joint Motion to Incorporate Prior Briefing 31 is hereby GRANTED. The motion to dismiss 8 , opposition 11 , reply 12 , and sur−reply 29 are hereby deemed applicable to the Amended Complaint. Signed by Judge Randolph D. Moss on 10/28/2015. (lcrdm3, ) (Entered: 10/28/2015)
32 NOTICE of Acceptance of Service by ZACHARY BLIER, JAMES BOETLER, GREGORY COLLINS, HERBERT NICHOLLS re 24 Amended Complaint (Gonzalez, Joseph) (Entered: 12/04/2015)
MINUTE ORDER: In light of the parties' representation that they have agreed to stay this case in order to focus on settlement efforts, it is hereby ORDERED that this case be STAYED pending further notice. The parties shall notify the Court if at any time they wish to employ alternative dispute resolution or mediation before a magistrate judge. It is FURTHER ORDERED that the parties shall file a joint status report on or before January 9, 2017, regarding the status of the settlement talks. Signed by Judge Randolph D. Moss on 12/9/2016. (lcrdm3, ) (Entered: 12/09/2016)
Set/Reset Deadlines: The parties shall file a joint status report on or before 1/9/2017. (kt) (Entered: 12/09/2016)

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 8 of 10

01/09/2017 01/09/2017 01/09/2017 01/10/2017 02/08/2017 02/08/2017
02/08/2017 02/22/2017 03/05/2017 03/06/2017 04/04/2017 04/06/2017 04/11/2017 04/11/2017 09/16/2017
09/18/2017

33 NOTICE of Appearance by Katherine Hubbard on behalf of All Plaintiffs (Hubbard, Katherine) (Entered: 01/09/2017)
34 Joint STATUS REPORT by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R.. (Hubbard, Katherine) (Entered: 01/09/2017)
MINUTE ORDER: As the parties requested in their Joint Status Report 34 , it is hereby ORDERED that the parties shall file a further joint status report on or before February 8, 2017, unless the parties have filed a stipulation of dismissal by that date. Signed by Judge Randolph D. Moss on 1/9/2017. (lcrdm3, ) (Entered: 01/09/2017)
Set/Reset Deadlines: The parties shall file a further joint status report on or before 2/8/2017. (kt) (Entered: 01/10/2017)
35 Joint STATUS REPORT by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R.. (Hubbard, Katherine) (Entered: 02/08/2017)
MINUTE ORDER: Upon consideration of the parties' Joint Status Report 35 , it is hereby ORDERED that, on or before February 22, 2017, unless the parties have filed a stipulation of dismissal by that date, the parties shall file a further joint status report. The status report shall (1) advise the Court as to the status of the settlement negotiations and (2) state both parties' views as to whether mediation before a magistrate judge or in the Circuit Executive's Office would further the negotiation process. Signed by Judge Randolph D. Moss on 2/8/2017. (lcrdm3, ) (Entered: 02/08/2017)
Set/Reset Deadlines: Joint Status Report due by 2/22/2017. (dot) (Entered: 02/09/2017)
36 Joint STATUS REPORT by ZACHARY BLIER, JAMES BOETLER, GREGORY COLLINS, DISTRICT OF COLUMBIA, HERBERT NICHOLLS, TAYLOR VOLPE. (Finkhousen, Aaron) (Entered: 02/22/2017)
MINUTE ORDER: Upon consideration of the parties' Joint Status Report 36 , it is hereby ORDERED that the parties appear for a status conference on April 4, 2017, at 2:30 p.m. Signed by Judge Randolph D. Moss on 3/5/2017. (lcrdm3, ) (Entered: 03/05/2017)
Set/Reset Hearings: A Status Conference is set for 4/4/2017, at 2:30 PM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 03/06/2017)
Minute Entry for proceedings held before Judge Randolph D. Moss: Status Conference held on 4/4/2017. Case UNSTAYED. Briefs identifying additional authorities and/or cases, due within one week. (Court Reporter: Pat Kaneshiro−Miller). (kt) (Entered: 04/04/2017)
37 NOTICE OF SUBSTITUTION OF COUNSEL by Aaron Josiah Finkhousen on behalf of ZACHARY BLIER, JAMES BOETLER, GREGORY COLLINS, DISTRICT OF COLUMBIA, HERBERT NICHOLLS, TAYLOR VOLPE Substituting for attorney Joseph Gonzalez (Finkhousen, Aaron) (Entered: 04/06/2017)
38 NOTICE OF SUPPLEMENTAL AUTHORITY by ZACHARY BLIER, JAMES BOETLER, GREGORY COLLINS, DISTRICT OF COLUMBIA, HERBERT NICHOLLS, TAYLOR VOLPE (Finkhousen, Aaron) (Entered: 04/11/2017)
39 NOTICE OF SUPPLEMENTAL AUTHORITY by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Hubbard, Katherine) (Entered: 04/11/2017)
40 MEMORANDUM OPINION AND ORDER: Defendants' motion to dismiss, Dkt. 8 , is hereby GRANTED as to Count Four, GRANTED in part and DENIED in part as to Counts One and Seven, and otherwise DENIED. See document for details. Signed by Judge Randolph D. Moss on 9/16/2017. (lcrdm1, ) (Main Document 40 replaced on 9/18/2017) (zkt). (Entered: 09/16/2017)
41 ORDER setting Initial Scheduling Conference for October 25, 2017 at 2:45 pm, in Courtroom 21. See document for details. Signed by Judge Randolph D. Moss on 9/18/17. (lcrdm3, ) (Entered: 09/18/2017)

Case: 1:14-cv-1317 As of: 02/12/2019 12:50 PM EST 9 of 10

09/18/2017 09/18/2017 10/02/2017
10/18/2017 10/25/2017 10/26/2017
10/26/2017 10/27/2017
11/28/2017 12/04/2017 12/05/2017 12/05/2017 04/03/2018 04/04/2018

Set/Reset Hearings: Initial Scheduling Conference set for 10/25/2017, at 2:45 PM, in Courtroom 21, before Judge Randolph D. Moss. (kt) (Entered: 09/18/2017)
42 NOTICE OF WITHDRAWAL OF APPEARANCE as to SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R.. Attorney Phil Telfeyan terminated. (Telfeyan, Phil) (Entered: 09/18/2017)
43 ANSWER to 24 Amended Complaint by ZACHARY BLIER, JAMES BOETLER, GREGORY COLLINS, DISTRICT OF COLUMBIA, HERBERT NICHOLLS. Related document: 24 Amended Complaint filed by S.H., SHANDALYN HARRISON, S.B., S.R., STERLING HARRISON.(DeBerardinis, Robert) (Entered: 10/02/2017)
44 MEET AND CONFER STATEMENT. (Attachments: # 1 Exhibit Protective Order)(Hubbard, Katherine) (Entered: 10/18/2017)
Minute Entry for proceedings held before Judge Randolph D. Moss: Initial Scheduling Conference held on 10/25/2017. Scheduling Order forthcoming. A Status Conference is set for 5/3/2018, at 10:00 AM, in Courtroom 21, before Judge Randolph D. Moss. (Court Reporter: Jeff Hook.) (kt) (Entered: 10/25/2017)
45 SCHEDULING ORDER: It is hereby ORDERED that (1) Rule 26(a)(1) initial disclosures shall be submitted on or before November 27, 2017; (2) Any additional parties shall be joined on or before December 4, 2017; (3) Any amendments to the pleadings shall be filed on or before December 4, 2017; (4) The parties shall conclude fact discovery on or before May 1, 2018; (5) The parties shall appear for a status conference on May 3, 2018, at 10:00 a.m. in Courtroom 21; (6) Plaintiffs expert reports shall be filed on or before June 1, 2018; (7) Defendants expert reports shall be filed on or before August 1, 2018; (8) Any expert depositions shall occur on or before September 1, 2018; and (9) The Court will set a schedule for briefing dispositive motions, if any, after the close of discovery. Signed by Judge Randolph D. Moss on 10/26/17. (lcrdm3, ) (Entered: 10/26/2017)
46 PROTECTIVE ORDER: The parties are hereby ORDERED to comply with the directives in the attached Protective Order. Signed by Judge Randolph D. Moss on 10/26/17. (lcrdm3, ) (Entered: 10/26/2017)
Set/Reset Deadlines: Rule 26(a)(1) initial disclosures shall be submitted on or before 11/27/2017; Any additional parties shall be joined on or before 12/4/2017; Any amendments to the pleadings shall be filed on or before 12/4/2017; The parties shall conclude fact discovery on or before 5/1/2018; Plaintiffs expert reports shall be filed on or before 6/1/2018; Defendants expert reports shall be filed on or before 8/1/2018; Any expert depositions shall occur on or before 9/1/2018. (kt) (Entered: 10/27/2017)
47 NOTICE of Appearance by Premal Dharia on behalf of All Plaintiffs (Dharia, Premal) (Entered: 11/28/2017)
48 Consent MOTION for Extension of Time to Amend 24 Amended Complaint by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Attachments: # 1 Text of Proposed Order)(Hubbard, Katherine) (Entered: 12/04/2017)
MINUTE ORDER: Upon consideration of Plaintiffs' Motion for Extension of Time to Amend 48 , the motion is hereby GRANTED. Plaintiffs may amend their complaint on or before March 5, 2018. Signed by Judge Randolph D. Moss on 12/5/17. (lcrdm3, ) (Entered: 12/05/2017)
Set/Reset Deadlines: Plaintiffs to amend their complaint on or before 3/5/2018. (kt) (Entered: 12/05/2017)
49 Consent MOTION for Settlement of Minors by SHANDALYN HARRISON, STERLING HARRISON, S.B., S.H., S.R. (Attachments: # 1 Text of Proposed Order)(Hubbard, Katherine) (Entered: 04/03/2018)
MINUTE ORDER: Upon consideration of Plaintiffs' Consent Motion to Approve Settlement of Minor, it is hereby ORDERED that the motion is GRANTED. Plaintiff Shandalyn Harrison is hereby authorized to settle the claims of the minor children, S.H., S.B., and S.R., with Defendant District of Columbia with regard to the search warrant execution of April 13, 2013, for the sum of $0.00, and said settlement is

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hereby APPROVED by the Court. It is further ORDERED that Shandalyn Harrison shall create a trust for her daughters and deposit a portion of the settlement in that trust according the terms set forth by Plaintiffs' motion. See Dkt. 49 at 2 n.1. The Clerk of the Court is directed to terminate this case. Signed by Judge Randolph D. Moss on 4/4/18. (lcrdm3, ) (Entered: 04/04/2018)