UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

MAKHI WHITTAKER 

 Plaintiff, 

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

CHRISTIAN MUNOZ, in his 

Individual capacity 

 Defendant. 

MEMORANDUM OPINION 

 Plaintiff Makhi Whittaker brings this action under 42 

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

when defendant Christian Munoz, an MPD Officer, allegedly 

arrested Mr. Whittaker without probable cause in violation of 

the Fourth Amendment. Mr. Whittaker also alleges that Officer 

Munoz violated his First Amendment rights by arresting him in 

retaliation for his speech. Officer Munoz moves for summary 

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

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

violation, qualified immunity precludes this lawsuit. Upon 

consideration of Officer Munoz’s motion for summary judgment, 

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

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

summary judgment. 
2 

I. Background1

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

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

See Statement of Undisputed Facts (“SOF”), ECF No. 19-1 at 23.2

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

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

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

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

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

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

local store. Id. at 23–24. 

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

attempted to catch a metrobus at the Minnesota Avenue Metro 

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

Ms. Shelton entered the metrobus along with other 

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

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

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

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

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

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

 

1 Unless otherwise noted, the following facts are undisputed. 

2 When citing electronic filings throughout this Memorandum 

Opinion, the Court cites to the ECF header page number not the 

page number of the filed document. 
3 

Id. Mr. Whittaker was waived onto the bus by the driver as the 

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

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

boarded the bus. Id. at 25. 

Meanwhile, Officer Munoz, an MPD Officer, was patrolling 

the Minnesota Avenue Metro Station, an area that has had 

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

patrolling the station when Mr. Whittaker and Ms. Shelton 

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

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

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

metrobus and arrested Mr. Whittaker for fare evasion by placing 

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

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

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

and also asked Officer Munoz to explain what probable cause he 

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

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

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

¶ 46. 

 

3 The parties dispute whether the bus driver waived any 

passengers on to the bus. This disputed fact, however, is not 

material. 
4 

Thereafter, Mr. Whittaker filed this lawsuit alleging 

violations of the First and Fourth Amendments and seeking 

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

After a short discovery period, Officer Munoz moved for summary 

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

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

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

disposition. 

II. Legal Standard 

Under Federal Rule of Civil Procedure 56, summary judgment 

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

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

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

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

moving party must identify “those portions of the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, which it believes 

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

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

quotation marks omitted). 

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

party must come forward with specific facts that would present a 

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

Radio Corp., 475 U.S. 574, 586 (1986). A genuine dispute exists 
5 

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

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

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

facts must be viewed in the light most favorable to the 

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

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

assertion by “citing to particular parts of materials in the 

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

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

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

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

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

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

III. Analysis 

Mr. Whittaker has sued Officer Munoz under Section 1983 

alleging several violations of his constitutional rights. See 

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

violations of the Fourth Amendment right to be free from 

unreasonable search and seizure4; and the First Amendment’s 

 

4 Mr. Whittaker also initially brought a claim for violation of 

the Fourth Amendment’s prohibition against the use of excessive 

force. Compl., ECF No. 1 at 10–11. However, he has conceded that 

“his claim for excessive force must fail and that summary 

judgment should be granted to Defendant Munoz with respect to 

such claim.” Pl.’s Opp’n, ECF No. 19-1 at 5 n.1. The Court 

agrees, Mr. Whittaker has failed to provide support for his 

allegation that he suffered an injury from the use of force, and 
6 

prohibition against retaliatory arrest. Id. at 7–10. Officer 

Munoz alleges that both claims fail because he had probable 

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

No. 17. 

Mr. Whittaker does not dispute the fact that his claims 

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

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

Fourth Amendment’s prohibition against unreasonable search and 

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

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

individual has committed even a very minor criminal offense in 

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

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

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

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

a retaliatory arrest that is supported by probable cause.” 

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

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

held that, generally, a First Amendment retaliatory arrest claim 

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

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

 

therefore his excessive force claim fails as a matter of law. 

See Garay v. Liriano, 943 F. Supp. 2d 1, 19 (D.D.C). 

5 The Supreme Court identified one circumstance when probable 

cause to arrest may not defeat a claim for retaliatory arrest 
7 

finds that Officer Munoz had probable cause to arrest Mr. 

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

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

A. Fourth Amendment Claim: Unlawful Search and Arrest 

An arrest is supported by probable cause “when known facts 

and circumstances are sufficient to warrant [an officer] of 

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

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

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

objective considerations, rather than the actual mental state of 

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

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

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

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

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

believe that [a plaintiff was] violating District of Columbia 

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

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

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

marks omitted). 

 

under the First Amendment. This circumstance is where officers 

have probable cause to make arrests, “but typically exercise 

their discretion not to do so.” Nieves, 139 S.Ct. at 1727. 
8 

Based on the undisputed facts in this case, the Court is 

satisfied that Officer Munoz had probable cause to arrest Mr. 

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

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

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

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

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

the Washington Metropolitan Area Transit Authority . . . without 

paying the established fare or presenting a valid transfer for 

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

students are not charged a fare when taking an eligible bus 

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

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

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

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

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

uniform, and was not going to school or engaged in a schoolrelated activity. See SOF, ECF No. 19-1 at 23–24. It is also 

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

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

Accordingly, the probable-cause question boils down to whether 

 

6 A violation of § 35-216 is “punishable by a fine of not more 

than $300, by imprisonment for not more than 10 days or both.” 

D.C. CODE § 35-253. 
9 

it was reasonably prudent for Officer Munoz to conclude that Mr. 

Whittaker was committing the crime of fare evasion. Under these 

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

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

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

Card, the Court concludes that Officer Munoz had a reasonable 

belief that the offense of fare evasion was being committed. 

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

Mr. Whittaker makes several arguments for why Officer 

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

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

evidence that he knowingly violated the intent requirement of 

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

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

Whittaker is correct that when specific intent is an element of 

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

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

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

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

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

only possessed a dagger when the law prohibited possession of 

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

Because there was no evidence witnessed by the arresting 

officer, direct or circumstantial, that showed that the arrestee 
10 

intended to use the dagger unlawfully, the Court held the 

officer lacked probable cause to arrest him. Id. 

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

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

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

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

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

inadvertent product of . . . confusion concerning the absence of 

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

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

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

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

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

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

fare was sufficient evidence for Officer Munoz to believe the 

crime of fare evasion occurred in his presence. 

Mr. Whittaker also argues that because the bus driver 

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

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

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

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

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

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

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

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

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

Supreme Court has held that the Fourth Amendment is not violated 

when an Officer seizes someone but makes a reasonable mistake of 

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

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

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

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

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

Fourth Amendment violation, but noting that “[w]hen a probablecause determination was based on reasonable but mistaken 

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

necessarily been the victim of a constitutional violation”). 

Accordingly, the Court GRANTS Officer Munoz summary judgment on 

the unlawful arrest claim.7

B. First Amendment Claim: Retaliatory Arrest 

When an arrest is supported by probable cause, a First 

Amendment retaliatory arrest claim will generally fail as a 

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

cause for an arrest will typically defeat a retaliatory arrest 

 

7 Mr. Whittaker agrees that if the arrest was lawful then the 

search incident to arrest could not have violated the Fourth 

Amendment. See Pl.’s Opp’n, ECF No. 19-1 at 16. Therefore the 

Court GRANTS Officer Munoz’s motion for summary judgment related 

to the allegation of unreasonable search. 
12 

claim). However, in Nieves the Supreme Court identified one 

circumstance under which probable cause may not defeat a claim 

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

This circumstance is “where officers have probable cause to make 

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

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

not apply when a plaintiff presents objective evidence that he 

was arrested when otherwise similarly situated individuals not 

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

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

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

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

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

parties understandably did not brief this issue, and it appears 

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

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

discovery in this case. Although this Court would typically 

order supplemental briefing in such a circumstance, the Court 

need not follow that course in this case because qualified 

immunity disposes this claim. 

The doctrine of qualified immunity entitles officers to 

immunity from suit unless their conduct violated “clearly 

established statutory or constitutional rights of which a 

reasonable person would have known.” Pearson v. Callahan, 555 
13 

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

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

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

officer that his conduct was unlawful in the situation he 

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

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

a court need not “broach the question of whether a 

constitutional violation occurred because the officers are 

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

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

555 U.S. at 236). 

In reviewing a grant of qualified immunity, a Court must 

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

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

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

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

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

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

free from a retaliatory arrest that is otherwise supported by 

probable cause.” Id.

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

precedent in this Circuit was inconclusive on the question of 

whether an arrest supported by probable cause could violate the 

First Amendment’s protection against retaliatory arrests. See
14 

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

question in 2018, but “ultimately left the question 

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

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

typically exercise his or her discretion not to, will violate 

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

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

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

violation for retaliatory arrest notwithstanding the fact 

Officer Munoz had probable cause to arrest Mr. Whittaker, 

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

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

First Amendment retaliatory arrest claim. 

IV. Conclusion 

For the foregoing reasons Officer Munoz’s motion for 

summary judgment is GRANTED. An appropriate Order accompanies 

this Memorandum Opinion. 

 

8 The D.C. Circuit, in 2015, explicitly stated that the question 

was inconclusive in 2011. Dukore, 799 F.3d at 1145. Mr. 

Whittaker has not identified, and this Court has not found, any 

precedent that shows that the right was clearly established as 

of 2017. 

9 The Court notes that, as of May 28, 2019, it is clearly 

established that probable cause may not defeat a claim for 

retaliatory arrest when an officer arrests and individual who 

engages in protected speech but chooses not to arrest otherwise 

similarly situated individuals not engaged in the same type of 

protected speech. See Nieves, 139 S.Ct. at 1728. 
15 

SO ORDERED. 

Signed: Emmet G. Sullivan 

United States District Judge 

September 4, 2019