### UNITED STATES 

### DISTRICT COURT FOR

### THE DISTRICT OF 

### COLUMBIA
ALEHEGN 

### MEHARI,

Plaintiff, 

### Civil Case 

### No. 16-1889 

### (RJL) THE DISTRICT OF 

### COLUMBIA, 

## ET ALr Defendants.



### ORAND ON



## . (March

# !,2020) [## 44, 451 

### Plaintiff Alehegn 

### Mehari 

### ("Mehari" or 

### "plaintiff') brought 

### this action alleging that defendant 

### Metropolitan Police Department 

### ("MPD") officers Candice 

### Wilkes ("Wilkes,,), Nico 

### Alfredo Scott 

### ("Scott"), Blake Edward Johnson 

### ("Johnson"), and 

### Bryan Francis Christian 

### ("Christian"), as

### well asthe 

### District of Columbia itself, conspired to

### violate his constitutional 

### rights, as

### well as

### committing several torts against 

### him. Specifically, he alleged various 

### violations of his Fourth, 

### Fifth, and Fourteenth Amendrnent rights, negligent supervision, 

### malicious prosecution, and abuse 

### of process.

### Aftel I granted 

### in part and denied in 

### part defendants' 

### Motion for Partial 

### Dismissal or 

### Motion for Partial Summary Judgment, see 

### Mem. Op, 

### [Dkt. #21], the 

### remaining parties 

### (Mehari and the 

### officers) proceeded 

### to discovery astothe remaining clairns: 

### Fifth Amendment



### v ) ) ) ) ) ) ) ) ) ) ) ) ) 

# st

1substantive due process (Count 

### I) and Fourth Arnendment false arrest (Count 

## II).r This

matter is 

### now beforethe Court on the 

### parties' cross 

### motionsfor surnmary 

### judgrnent 

### [Dkt ## 

### 44,45]. Upon consideration 

### of the 

### parties' submissions, defendants' 

### motion is 

### GRANTED in part and 

### DENIED in 

### part. Plaintiff s 

### rnotion is 

### DENIED. The case against 

### Wilkes as

### to false arrest, however, 

### willproceed. 

## All other 

### claims against 

### Wilkes and 

### all other defendants are dismissed.2 

### BACKGROUND Before explaining 

### my reasons

### for granting defendants summary 

### judgrnent in part and denying 

### it 

### in part, a

### little background is necessary. Please note, however, that 

### I am 

### only including those facts that are material 

### to deciding 

### this motion.3 

### After midnight on a 

### Friday 

### in late Septernber 2015, 

### Wilkes was posing as a prostitute at a Shell gas station on 

### New 

### York Avenue in Northeast Washington, 

### D.C. as part 

### of an undercover sting 

### operation. ,See

### Defs.' Statement 

### of Material Facts 

### ("Defb.'

I

### After my 

### prior ruling, Mehari 

### filed an amended 

### complaint namingWilkes and re

### alleging some 

### of the same claims 

### I previously dismissed. See

### Am. Compl. [Dkt. #251. 

### As such, 

### I suasponte disrnissed 

### with prejudice claims that 

### previously had been disnrissed. ,See

### Minute Order 

### of Oct. 16,2017. Mehari's claim 

### of an equal protection 

### violation against the

### officer defendants survived 

### my earlier 

### ruling, but he does not address 

### this claim at summary 

### judgment, so 

### I consider 

### it abandoned and grant summary 

### judgment in favor of the defendants as

### to equal protection.
2

### This includes any claims 

### previously dismissed against the other 

### officer defendants that were not 

### previously dismissed against 

### Wilkes because shewas not named as a defendant 

### until Mehari's amended complaint. 3Where facts are disputed, 

### I must draw all

### justifiable inferences 

### in the 

### plaintiff sfavor, see

### Andersonv. Liberty Lobby, 

### lnc.,477 11.5.242,255 (1986), except where hisversion 

### of events is 

### "blatantly contradicted 

### by the record, sothat no reasonable

### jury could believe 

### tt," Scott v. 

### Harris,550 U.S. 

### 372,380 (2007). 2

### SOMF") lDkt. #44-11

## ll 1.4 Johnson and Scott were also 

### involved 

### with the operation,

tasked respectively 

### with surveilling 

### Wilkes's interaction 

### with suspects and arresting any targets 

### identified by Wilkes 

## . Id. fln

# 24. Christian was supervising the operation 

### from afar and was responsible 

### for approving any arrest paperwork prepared by the arresting 

### officer. 

## Id.I4. Mehari arrived atthe gas station 

### in his taxicab at2

### aln. and 

### pulled up

### to one 

### of the pumps on the station's west

### side. 

### Id, n

### 6. He 

### immediately exited histaxicab and entered the gas

### station's store. 

## Id

# n7 After he entered the store, 

### Wilkes walked around the side 

### of the gas 

### station's storetowards the purnps onthe 

### station'swest 

### side. 

## Id n B. 

### Meanwhile, Merhari purchased a 

### lottery ticket, exited the store, and returned to his 

### taxicab. 

## Id,[n7-9. As he approached his taxicab, 

### Mehari looked at

### Wilkes.s 

### td.1O. Wilkes thenwalked pastthe

### driver's side 

### of the taxicab, aroundthe

### front 

### of it, and past

4

### Although 

### plaintiff filed his 

### own statement 

### of rnaterial facts, he 

### did not

### file an opposition to defendants' statement. Under 

### local rules, hethereby admitted the

### truth of those allegations 

## . See 

### LCvR 7(h)(1) 

### ("In determining a 

### motion 

### for summary 

### judgment, the Court may assume that facts 

### identified by the 

### moving party in its statement 

### of material facts areadmitted, unless such afact is controverted in the statement 

### of genuine issues 

### filed in opposition to the 

### motion."). This local rule tracks thefederal 

### rule. ,See Fed. R. 

### Civ. P.56(e)(2) 

### ("If 

## aparty... failstoproperly address

### anotherparty's assertion 

### of fact as required 

### by Rule 56(c), the court 

### may
. . .considerthe fact undisputed 

### for purposes 

### of the 

### motion."). Unless one

### of defendant's facts is squarely disputed 

### by one the assertions in

### plaintiff sown statement 

### of material facts 

### (or

### wholly unsupported by the record), therefore, 

### I consider 

### it undisputed 

### for purposes 

### of this 

### motion. When, as here, 

### I have relied on such an undisputed fact, 

### I

### will cite solely 

### to defendant's statement 

### of material facts.
5Defendants say that Meharioostared" at

### Wilkes. Defs.' SOMF 

### fl

### 9. To the extentthere is adifference between 

### looking and staring, 

### I conclude based on a 

### review of the video that 

### Mehari looked atWilkes,

a Jthe passenger's side before returning tothe

### driver's side. 

### Id. atfllJ 1

### 0-12, While Wilkes

was

### walking around 

### Mehari's taxicab, he started the car and lowered the

### driver's side 

### window. ld.1,1 

### 1. Wilkes stopped 

### walking several feet 

### from 

### Mehari'swindow and put awaythe cell phone on 

### which she had been 

### talking. 

## Id.fl 13. She and 

### Mehari began speaking. 

### Id. n

## rc. Seconds later, 

### Mehari's taxicab started 

### moving forward but then stopped. 

### Id, 

### n 14. Seconds after that,the same 

### thing happened 

### again. Id. 

### n 15. The

### two continued speaking, and, less than

### two minutes later, 

### Mehari's taxicab moved 

### forward and then stopped a

### third time. Id.lTfl 

### 16-17. The

### two spoke 

### for another minute, and 

### Wilkes extended a hand above thetaxicab and pointed 

### roughly towards the

### west. See id. 

### flfl 18-19. Meharithen drove 

### off towards the south, and 

### Wilkes signaled 

### for him to be arrested. See id. fl 20; 

### Def.'s Mot. for Summ. J. 

### Ex. 6 

### ("Ex. 6"), Camera 

## Ir 2:06:30-36, Camera 142:06:36-50..6 Police intercepted his taxicab 

### just as 

### it was leaving the gas station and arrested 

### Mehari. Defs.' SOMF fl 21. 

### All told, the cameras atthe gas station captured 

### video images 

### only showing 

### Mehari and

### Wilkes speaking

### for around 

### two and 

### half rninutes. See 

### id..]n 16, 

### 18, 19-20; Ex. 6, Camera 11

### 2:03:58-06:32. In a subsequent 

### police report, 

### Wilkes recounted 

### their conversation asfollows : Mehari: Wilkes: Mehari: Wilkes: 

### You're so 

### pretty

Thanks,

### you looking 

### for a date 

### I'm just looking Oh are

### you sure? You don't want any head 

### orfuck

6The defendant 

### provided the Court 

### with video footage frorn the gas station 

## . See 

### Ex. 6. The gas station's recording system includes nine 

### different cameras, so 

### I refer to both a camera and atimecode when 

### citing this footage 

### directly. The cameras had no audio recording

# capacity. 4Mehari:



### Wilkes: Mehari: Wilkes: Mehari: 

### Wilkes: Mehari: Wilkes: Mehari: 

### Wilkes: Mehari: Wilkes: 

### I don't know what 

### you are saying.



### Doyou 

### want me

### to suck 

### your dick or 

### fuck you? Oh,

### lhaveawife. So

### you're going 

### to

### tell her that 

### I sucked 

### your dick Yes 

### I didn't know you were married aren't 

### wearing a

### ring 

### I don't need a 

### ring my love is here (puts hand to heart) Oh,

### o. It's $30.00 

### for me

### to suck 

### your dick 

### ok So,

### you got 

### my $30.00 Yes 

### ok Defs.' 

### Mot. for Summ. J. 

### [Dkt.

### #44]Ex.7 ("Police Report") 

### at 

## I-2. Mehari's account 

### of the conversation, 

### frorn his deposition 

### testimony (through atranslator), somewhat agrees 

### with the 

### police report, although 

### it clearly demonstrates that 

### Mehari, for whom English is 

### nothis first language, did not understand much 

### of what 

### wilkes was saying:

Shewas the one

### that started 

### speaking. 

### I don't remember. Yeah, she was the one that started speaking

### first. And was she speaking 

### in English? Yes. What did

## - after she said something to you, 

### what didyou say to her? 

### Initially, Itold her 

### I don't understand what

## - you 

### know, what she said. 

### And you 

### told her that 

### in English? Yes. 

### I said 

### I don't understand 

### And what did she say 

### in responseto that? Sothat's when she said doyou want a date and 

### Istill didn't understand 

### what that was, so 

## I said, o'What's

### that"

# - you know, "What's that?" So then 

### that's when she said, o'Do

### you want sex" and

### then she said 

### "date" 

### again. That's when 

### I told her, 

## "No. I'm not interested. 

### I am 

### married." 

# a. when you 

### told this woman that 

### you were married, 

### what 

### did she say then 

### in response? 

# A. And so after 

### I said that, 

### I was about 

### to 

### leave. Then she looked at my hand and she saidthat o'I

### don't see a 

### ring on 

### your 

### finger." 

# a. And what, 

### if anything, 

### didyou say 

### in responseto that? 

# A. When she said, 

### I

# - my response was

# - I told her 

### that 

## I don't have a 

### ring because the 

### ring is 

### in my heart. 

### A 

## a A 

## a A 

## a A 

## a A

5

# a. And did shethen say 

### anything in responseto that?



# A. Well, she

### didn't really give me a response 

### to that but she 

### kept on 

### talking and 

### I kept on saying

### what isthat, 

### I didn't understand. 

# a. Okay. And so do you 

### recall- after the comment aboutyour 

### ring being in your heart, doyou 

### recall anything else 

### specific either being said by 

### you or 

### by her? 

# A. She kept on asking doyou 

### want dick and she kept on sayingthat over 

### over again, and 

## I kept on asking her 

### what 

### is that, and she 

### kept on saying doyou want dick. The 

### report suggests 

### that

### you said

### to this

# - the 

### woman

### who cameto 

### yourvehicle, ooYou're so

### pretty." Do you reball sayingthat? 

### I don't

## - I did not say

### that. I don't remember saying that. 

### Okay. The report indicates that 

### you said, 

### "I'm just 

### looking." Didyou say that to the woman? 

### I don't remember that. So

### you indicate that 

### ygu 

### don't remember but 

### my question is, 

### did you say it? 

### I did not say that. 

### The report indicates 

### thatthe wolnan said 

### toyou, 

### "Oh, are

### you sure 

### you don't want any heador

### fuck?" Did she say thatto you? 

### Well, yes, she asked something 

### like that,

### you know, 

## a question something 

### like that, and 

### that's when 

### Itold heroono, 

### I'm married." 

### Okay.

### All right. Skipping ahead here that the report indicates that the woman said 

### to you, oolt's $30.00 

### for me

### to suck

### your 

### dick." Did she say that to you? Yes, she

### did. I do

## - I did hear her say 

### $30.00. I

## - yeah, she said that. So she was saying that, 

### you 

### know, $30.00 and

### would you suck, 

### it's $30.00,you 

### know, would 

### I suck and shewas saying a

### lot of things. 

### Okay. The report indicates 

### in response 

### to that 

### offer frorn a

### wolnan about $30.00

### to suck 

### your dick, you said, 

### 'oOkay." 

### Did you say that? 

### No. I was not saying okay to agree

### with her. I was

## - I wanted to leave and 

### I said, okay, okay, and 

### I was leaving. 

### The 

### report indicates 

### thatthewoman said

### to you, o'So

### you got my $30.00?" 

### Did she say that 

### to you? 

## I remember 

### her saying, 

### you know, something about $30.00 

### but I didn't say anything, you 

### know, to her about that. 

### Okay. So 

### in response 

### tothe question 

### orthe staternent, 

### "So 

### you got 

### my $30.00," the 

### report indicates 

### that

### you said, 

### 'oYes." 

### Did you say that? 

### I did not say

### that. 

### I don't remember 

### a. A. 

### a. A. 

## a A. 

### a. A.


### a.
A. A.


### a. A. 

## a A.


### a.
A.

6

### Defs.' 

### Mot. for Summ. J. 

### Ex. 8

### ("Mehari Dep.") 

### at27-37.

Although mentioned nowhere 

### in her contemporaneous statement recounted 

### in the 

### police report (nor, 

### for that matter, anywhere 

### in the

### text 

### of the defendants' 

### motion 

### for summary judgmentT), 

### Wilkes explains 

### in adeclaration 

### filedwith the defendants' 

### motion for summary 

### judgment that her 

### pointing over the taxicab may have been done 

### in order to arrange a meeting

### with Meharr 

### at anearby hotel: 

### While 

### I do 

### not specifically recall what 

### I said 

### to 

### Plaintiff at [the] rnornent 

### [l pointed 

### in the general 

### direction 

### of thewest], 

## it has been 

### my practice in undercover 

### prostitution operations 

### to

### tell individuals 

### who are 

### soliciting rne that ( 1) 

### I have reserved aroom at the hotel located at 16 15 

### New York Avenue 

### NE; and (2) they should meet me atthe hotel. 

### Defs.' 

### Mot. for Summ. J. 

### Ex. 2 

### ("Wilkes Decl.") fllT6-7. Scott arrested 

### Mehari and cornpleted the arrest 

### report. ,See

### Defs.' Mot. for Summ, J. Ex. 4 

### ("Scott Interrog. Resp.") flfl 

### 6-7; Arrest Report 

### at 

### 1. Mehari was held 

### in custody 

### for several hours after 

### his arrest. See 

### Def.Wilkes's Answer to Pl.'s 

### Am. Compl. 

### ("Wilkes's Answer") [Dkt. #41] 1T46. Scott and Johnson signed a Gerstein 

### affidavit in support 

### of Mehari being charged.8 See 

### Defs,' Mot. for Summ. J. 

### Ex. 1

### ("wilkes's Interrog. Resp.") fl

### 21. Thereafter, he had

### to appear 

### in court on at least 

### four occasions. ,See

### Defs. Scott, Johnson, and 

### Christian's Answer to

### Am. Compl. 

### ("other Defs.'

?This declaration is mentioned 

### for the

### first time in defendants' later opposition to 

### plaintiff s

### motion

### for summary judgment,

8Despite repeated references to

### this Gerstein 

### affidavit in Mehari's complaint, his 

### motion for summary 

### judgment, andthe interrogatories he propounded, there is no copy of this 

### affidavit in the record, nor was the Court able

### to accessthe copy ostensibly available on the Superior 

### Court's online case records 

### system. As such, 

### I do not 

### know the contents 

### of this

### affidavit and cannot 

### rely on those contents 

### in deciding 

### this motion. 7

### Answer") lDl<t. 

### #271fl 

### 50. Mehari refused an

### offer of 

### probation and adiversion program

and demanded a

### trial. Id. tifl

### 52-53. But the Government declined to prosecute 

### him on the day 

### of his

### trial. See 

### id.1154. 

### STANDARD OF 

### REVIEW Under 

### Rule 56(a) 

### of the Federal Rules 

### of 

### Civil Procedure, 

### this Court should render summary 

### judgment 

### infavor 

### of defendants unless the pleadings, and any attachments to the pleadings, establish aoogenuine issue as

### to any rnaterial 

### fact." The 

### moving party bears the 

### initial burden

### of identifying evidence that demonstrates thatthere is no genuine issue 

### of material 

### fact. Celotex Corp. 

### v. Catrett, 477 

### U.5. 317 

### , 323 ( 

### 1986). Once the movant makes that showing, the burden shifts to the 

### non-moving party to'ocome 

### forward 

### with specific facts showing that there is agenuine issue

### for

## trial." Matsushita Elec, Indus. Co,

v. Zenith 

### Radio,475 

### U.S. 574,587 

### (1986). Unless the non-movant can demonstrate a genuine issue

### of material 

### fact-which requires 

### him to "cast morethan metaphysical 

### doubt" onthe

### evidence-the movant is entitled to

### judgment as

### a matter 

### of 

### law. Doe v. Gates,981 

### F.2d 1316, 1323 

### (D.C. 

### Cir. 1993). 

### ANALYSIS 

# A. Count

# I: Fifth Amendment Substantive Due Process 

### Mehari's motion for summary 

### judgment contends that defendants' actions amounted 

### to a 

### Fifth Amendment 

### violation of due 

### process.As 

### I explained above, 

### I already disrnissed 

### Mehari's procedural due process arguments, so 

### only his substantive due process arguments 

### remain. Nevertheless, much 

### of 

### Mehari's motion focuses on

8procedural due process and attempts to 

### relitigate my earlier 

### ruling. I reject 

### this atternpt



### for the reasons already stated 

### in my earlier 

### opinion. See 

### Mem. Op. at

### 6-8. As for substantive due process, 

### Mehari cttes Castellano v. 

### Fragozo,352 F,3d 939 (5th 

### Cir. 2003) and Garnett 

### v. Undercover 

### Officer C003g),838 

### F.3d 265 

### (2d Cir,2016) to contend that post-arrest false statements and

### fabrication 

### of evidence 

### by officers effectuated a

### violation of his 

### right to a

### fair

### trial. But there are

### two problems 

### with this 

### argument. First, unlike in Castellano and Garnett, 

### Mehari was not 

### actually

### tried for 

### his alleged crime because the Government, 

### correctly in myview, dropped the case against 

### hirn. Second, although 

### Mehari seefirs

### to focus on alleged false staternents 

### by Scott and Johnson, nowhere does he explain what false statements these 

### officers allegedly uttered 

### in more than the most generic 

### terms. See, e,g., 

### Pl.'s 

### Mot..for Summ. J. at 9 

### ("Mehari demonstrates that Defendants Scott and Johnson made false oath(s) to prosecutors and the 

### SuperiorCourtafterMeharirebuffedWilkes's 

### advances.... Defendants... filedafalse criminal complaint

### with the 

### United States

### Attorney's 

### Office."). The 

### allegedly false Gerstein 

### affidavit sworn out by these 

### officers is nowhere to befound 

### in the record 

### of

### tliis
case. ,Seenote 6, supra p.

### 7. Thus, 

### Mehari does not set

### forth particular enough allegations, 

### let alone evidence, 

### to survive sulnlnary 

### judgment as

### to Scott and Johnson. 

### And as he does not even m6ntion Christian, summary 

### judgment is 

### likewise appropriate 

### for 

### him. Mehari does make passing 

### fifth-arnendment allegations against 

### Wilkes, but they

are based 

### solely on his 

### initial arrest and

### duplicative of hisfalse arrest 

### claim, so

### I likewise grant summary 

### judgment to Wilkes onthe 

### Fifth Amendment clairn.

9

# B. Count

# II: Fourth Amendment False 

### Arrest

Mehari next arguesthat Scott and Johnson, acting on asignal 

### from Wilkes, arrested 

### Mehari without probable cause, 

### in

### violation of his 

### rights underthe Fourth 

### Amendment. 

### I conclude that Scott and Johnson areentitled 

### to qualified 

### immunity (and therefore summary 

### judgment) based on

### Wilkes's signal 

### indicating that she had probable

cause

### to arrest 

### Mehari but that 

### Wilkes herself is not entitled 

### to qualified imrnunity atthis stage because, 

### resolving genuine factual disputes 

### in 

### Mehari's favor, 

### it would have been clear to a reasonable 

### officer in Wilkes's position that shedid not have probable cause to arrest hirn.e 

# ' Officers facing a

### claim 

### of false arrest under 42 

### U.S.C. $ 1983 are entitled to 

### qualified imrnunity "unless (1) they 

### violated afederal statutory or 

### constitutional 

### right and (2) the unlawfulness 

### of their conduct was 

### 'clearly established atthe

### time."' District 

## of columbia 

### v. wesby,138 

### s. ct. 577,589 (2018) (quotin g Reichle v. 

### Howards, 566 

### u.s. 658,664 

### (2012)). Applying this 

### two-part test here, 

### Wilkes must have 

### (1) called 

### for Mehari's arrest

### without probable cause 

### (2) incircumstances that made 

### it clear underthe law that she lacked probable cause. 

### Both requirements aresatisfied here. 

### First, onthe record before rne (and 

### resolving genuine disputes 

### in Mehari's favor), 

### Wilkes has not proven that she had probable causd

### to call 

### for Mehari's arrest. The Fourth Amendment protects 

### "[t]he right of the peopleto be secure 

### in their persons, houses, papers, and effects, against unreasonable searches and

### seizglss." U.S. Const. amend. 

### IV.

e

### Of course, 

### Mehari is 

### not entitled 

### to summary 

### judgment at

### this stage either. 10

### In the absence 

### of awarrant, an arrest is reasonable 

### if an

### officer has probable cause to

believe that the suspect 

### committed acrime 

### inthe

### officer's presence. Iilesby,138 S. Ct. at 

### 586. To determinewhether an

### officer had probable cause 

### for an arrest, 

### I rnust "examine the events leading up to the arrest, andthen decide whether the 

### historical facts, viewed 

### from the standpoint 

### of an 

### objectively ieasonable 

### police

## oifi..r, amount to probable cause." 

### Id. (internal quotation marks 

### omitted). Probable cause 

### "is a

### fluid concept that is not 

### readily, or even 

### usefully, reduced 

### to a neat set 

### of legal rules

## ." Id. (internal quotation marks 

### omitted). Rather, 

### "[i]t requires 

### only a

### probability or 

### substantial chance 

### of criminal activity, not an actual 

### showing of such 

### activity." Id. (internal quotation marks ornitted) (emphasis 

### added).As such, 

### it is 

### "not a

### high bar," 

## Id. (internal quotation marks ornitted). 

### Yetthe

### officer here 

### failedto clear even a

### low 

### bar. To 

### "solicit for 

### prostitution," as 

### Mehari was arrested

### for doing, means

### to 

### "invite, entice, 

### offer, persuade, or agree to engage in 

### prostitution or address 

### for the purpose

### of inviting, enticing, offering, persuading, or agreeing 

### to engage 

### in 

### prostitution." D.C. Code. 

### Ann. SS

### z2-2701(a),22- 270L01(7). "The crime is cornpleted 

### by agreeing 

### to engageor 

### offering to engage 

### in sex 

### for money or other material 

### gain." Nche

### v. United States, 526

### A.2d 23, 24 

### (D.C. 1987) (emphasis 

### added). 

### "To establish the offense 

### it is not necessaryto 

### prove any 

### particular language or 

### conduct. Ordinarily 

### it is aquestion 

### of fact whether the acts andwords 

### of the defendant, viewed 

### inthe 

### light of surrounding circumstances,

### constituting the 

### inviting or enticing 

### prohibited by the 

### fstatute]." united states v.

### smith,330 

### A.2d759,761 (D.c. r97 s).

11The facts 

### weighing against probable cause are:

Here, based on the undisputed facts and 

### resolving genuine factual disputes 

### in Mehari's favor, Wilkes has

### failed to prove that an

### objectively reasonable 

### officer in her shoes

### would consider 

### it likely, let alone probable, that 

### Mehari committed acrime. Indeed, the

### totality of the evidence suggests the merest 

### possibility of solicitation and nothing 

### more. Reviewing the evidence again, the undisputed,l0 contemporaneous facts 

### weighing 

### infavor of probable cause are:



# . Mehari looked at

### Wilkes as he

### walkedfrornthe store atthe gas station to his 

### carll 

# o Mehari lowered his 

### driver's side

### window 

# e Mehari saidoookay, 

### okay" after 

### Wilkes mentioned the arnount $30



### Mehari purchased a 

### lottery 

### ticket at 

### the gas 

### station (and so had 

### at least some reason 

### for being atthe gas station aside 

### from soliciting) Many times throughout 

### their conversation, 

### Mehari either said that he did 

## not understand 

## what Wilkeswas saying

## or asked 

## her questions demonstrating his 

### lack of understanding 

### From the

### video evidence, 

### Wilkes and 

### Mehari spoke 

### for about

### two and 

### half rninutes, 

### which 

### is far longer than 

## it would have 

### taken

### to have the conversation as

### Wilkcs rccounted 

### it in the 

### police repofi Wilkes initiated all

### talk of sexual 

### activitvl2 r0

### Most importantly, Mehari disputes that he called 

### Wilkes prbtty andthat he said 

### "Yes" after she asked

### if he had her $30, so 

### I do not 

### rely upon these facts 

### in deciding summary judgrnent. 1l Defendants describe 

### Wilkes as 

### "provocatively dressed," 

### Defs.' Opp'n to 

### Pl.'s 

### Mot. for Summ. J. 10, but based on my 

### review of the

### video evidence, 

### Ithink reasonable minds could 

### differ asto whether 

### Wilkes's attire was o'provocative."

12

### It is

### of course true, as defendants 

### point out,that a defendant need 

### not initiate a conversation

### to ultimately be

### guilty ofsolicitation. See Thompson 

### v. United States, 618 

## A2d 110, 

### 1i3 (D.C. 1992) 

### ("[T]his court has

### affirmed the

### convictions of individuals who initiated the conversations as

### well asthe

### convictions 

### of individuals who clearly did not 

### initiate the conversations 

### for which they were 

### arrested."). But the fact that 

### Wilkes initiated not 

### only the conversation but also 

### all

### talk of sexual 

### activity is

### still relevant to 

### l2 o

a

a

# o Mehari

### affirmatively told Wilkes 

### "No. I'm not interested. 

### I am 

### married." when 

### Wilkes asked 

### if he wanted

### to have sex

### with her 

# o Mehari repeated oono, 

### I'm married" when

### Wilkes asked again 

### if hewanted to have sex or oral sex 

### with her 

# o By Wilkes's 

### telling, Mehari made

### thefantastical statement 

### (indicating non-comprehension) 

### that he

### would 

### tell his

### wife thatWilkes performed oral sex on hirn 

# o Mehari explained that hedid not need to wear awedding 

### ring because his love 

### for his

### wife was 

### in his heart



# . Mehari pulled 

### his car forward, as

## if to leave, three 

### times during the conversation

### with Wilkes before any amount 

### of money was mentioned 

# o Mehari never gave 

### Wilkes any money 

# o Mehari drove awayfrom the gas station 

### without Wilkes and began 

### pulling onto the street before hewas arrested The obvious comfirunication 

### difficulties, Wilkes's initiation of the conversation and all 

### talk of sexual 

### activity, 

### Mehari's failure to actually pay or even agree to pay any money, 

### Mehari's multiple attempts 

### to

### drive away

### during his conv'ersation 

### with Wilkes, thefact that heactually 

### did 

### drive away, and the apparently repeated references 

### by Mehari to his 

### wife and his love 

### for her 

### all cornbine to prevent me 

### from concluding at summary judgrnent that a reasonable 

### officer in

### Wilkes's shoes

### would have had probable cause. 

### In a somewhat 

### confusing atternpt to salvage 

### their case,the defendants attached a declaration 

### by 

### OfficerWilkes to 

### their motion 

### for summary 

### judgrnent referencing 

### for the 

### first time the supposed importance 

### of officer Wilkes 

### pointing over 

### Mehari's taxicab towards the

### west.l3 

### By Wilkes'stelling, it was her regular practice 

### totell those 

### soliciting

determining "whether the acts and words 

### of the defendant, 

### viewed in the 

### light

### of surrounding circumstances" amounted 

### to a crime 

## . Smith, 330

### A.2d at 76I

. l3

### As 

### I noted above, however, defendants referenced 

### this evidence nowhere in

### their motion for summary 

### judgrnent. They 

### did reference 

### it several 

### times in response to 

### plaintiff s

### motion for summary judgment. 13her that she had reserved a 

### room at a nearby hotel where she

### would meet

### them. This

evidence has

### two problems 

### inthe context 

### of this case. 

### First, Wilkes candidly adrnits that she does not remember actually 

### telling Mehari she

### would meet 

### hirn atthe 

### hotel; she 

### merely aversthat 

### it had been her practice 

### to do 

### so. This general statement, especially when 

### it was made 

### in adeclaration not subject

### to cross-examination, is 

### insufficientfor summary 

### judgment. Cf, 

### Londriganv. 

### FBI,670F.2d 

### l164,l174 (D.c. Cir. 1981) 

### ("[Rule 56(e)'s] requirement of personal knowledge by the

### affiant is unequivocal and cannot be 

### circumvented. 

### An affidavit based 

### merely on 

### information and 

### belief is unacceptable." 

### (internal quotation marks 

### ornitted)). Second, even 

### if Wilkes actually said those words to 

### Mehari, nowhere in the record is

### it even claimed that he agreed

### to meet her atthe hotel. The defendants note that 

### Mehari drove 

### off after 

### Wilkes pointed in the 

### direction of the hotel, see 

### Defs.' 

### opp'n to 

### Pl.'s 

### Mot. for Summ. J. at 5, but the 

### video reflects that he drove south rather 

### thanwest towards the 

### identified 

### hotel.la Simply put, leaving the gas station cannot have provided probable cause 

### to arrest 

### Mehari-he had

### to 

### leave! And the 

### officers arrested 

### him before he could even make good on any theoretical plan to meet at a 

### hotel. Thus, onthe record before me, 

### I conclude that the defendants have 

### not shown that 

### Wilkes had probable cause when she called 

### for Mehari's arrest. 

### Nor is

### Wilkes entitled 

### to qualified 

### immunity at

### this stage because the 

### law clearly established that she lacked probable cause

### to arrest 

### Mehari based on the record before

l4

### It istrue, 

### of course, that 

### Mehari could have circled the 

### block to approach the 

### identified 

### hotel. But he could

### just as easily have gone 

### in any other 

### direction. 

### At summary judgrnent, 

### I must draw all

### justifiable inferences 

### in the 

### non-movant's favor. T4

### tne. o'Clearly established means that, atthe 

### time of the

### officer's conduct,the 

### law was



### sufficiently clear that every reasonable 

### official would understand that what he is 

### doing is 

### unlawful." l4/esby,138

### s.

### ct. at 589 

### (internal quotation marks 

### ornitted). "This demanding standard protects 

### all but the 

### plainly incompetent orthose 

### who 

### knowingly violate the 

### law." Id. (intemal quotation marks omitted). Decades 

### of 

### District of Columbia 

### law have made clear that the 

### crime 

### of solicitation requires 

### "proof

. . .thatthe fdefendant] offered or agreed 

### to engage 

### in asexual act 

### in return 

### for a

### fee." Ford 

### v. United States, 533

### A.zd 617,619 (1987) (en 

### banc). Courts repeatedly have overturned convictions either where there was no 

### proof 

### of an

### offer or agreement that unambiguously related 

### to asexual act, see, 

### e.g., Rose

### v. United 

### States,535 

### A.2d 849,853 

### (D.C. 1987), or no 

### proof that monetary or other valuable consideration

was part 

### of that 

### offer or agreement ,see

### Williams

### y. (lnited 

### States,1l0 

### F.2d 554,554 (D.C 

### Cir. 1940); Graves

### v. United States,515 

### A.2d 1136,1144-46 

### (D.C. 1986); see also 

### Ford, 533

### A.2d at 625 n.12 (citin 

### g Williams). Here, both elernents were 

### lacking. To be sure, Wilkes attempted to satisfli these

### elements. She brought upvarious 

### sexual acts, she mentioned the sum $30, and shetried

### to entice 

### Mehari to accept 

### her propositions. 

### But on the record before me, there is no undisputed evidence that 

### Mehari agreed 

### to any 

### of it. The language in the Rose case is

### particularly on 

### point. There,the 

### D.C. Court

### of Appeals overturned a

### solicitation conviction where 

### officers merely observed 

### but did not actually overhear the interactions that led to the defendant's 

### arrest. See 535

### A.2d at 852. Instead, the 

### conviction rested onthe defendant's repeated beckoning to passing motorists,

15female attire (on a male defendant), presence 

### in an area 

### known for prostitution, and the



### time

### of day. See 

### id. Rejecting the

### sufficiency ofthis evidence,the court explained: 

### The conduct required 

### to establish 

### the offense 

## of fsolicitation] invariably includes 

### otherwise innocent 

### behavior; 

### it becomes 

### unlawful only because 

### it betrays

### an unmistakable 

### intent 

## to invite

## for fprostitution].ls Thus, a 

### conviction must 

### rest on the accused's 

### unambiguous manifestation 

### of the 

### intent 

### to engage 

### in fprostitution]. otherwise, no citizen could 

### hail a cab, wave 

### to a

### friend, talk to a

### stranger, wait 

### for a date on astreet corner, or take an aimless 

### stroll, and shortly return tothe scene,

### without fear

### of a

### conviction under S22-2701.t6 

### Id. at 853 (emphasis 

### added). What happened here, when 

### factual disputes are resolved and inferences drawn 

### in Mehari's favor, was that he looked at and spoke

### to a suppo3edly provocatively-dressed stranger 

### who mentioned sex and money, and then hedrove away. 

### Ultimately, 

### Wilkes's argument 

### for the existence 

### of qualified irnmunity rests on the 

### word 

### "okay." InWilkes's view, her

### offer to 

### perform sexual acts and her setting aprice 

### of $30, when combined

### with Mehari sayingoookay" thereafter, gets her close enough to

l5The Rose case dealt 

### with aprong 

### of the 

### solicitation 

### statute-soliciting for a lewd or 

### immoral 

### purpose-that was confined 

### to sodomy butwas 

### in all other respects identical to 

### soliciting for 

### prostitution. See 

### Ford, 533

### A.2d at622 (setting out 

### statute); Rose 535

### A.2d at 851 n.2 

### ("soliciting for a

### lewd or 

### immoral purpose is 

### lirnited inthe 

### District 

### of Colurnbia to 

### soliciting 

### for sodomy.").

16The Supreme 

### Court's Wesby decision is not to the

### contrary. There, the Court explained that the 

### inquiry is not whether 

### particular conduct is 

### "innocent" or 

### "guilty" but rather the degree

### of suspicion that attaches to 

### particular types 

### of noncriminal acts. See 138 S.Ct. at 

### 588. Certainly, had 

### Mehari engaged 

### in sexual banter, see, e.g., 

### Moten

### v. United States, 81

### A.3d 1274,1280 

### (D.C.2013) (defendant's stamenthat hewas 'ohorny" supporting 

### solicitation conviction), or 

### invited Wilkes into 

### his car, see, e.g., Wood

### v. United States, 498

### A,2d 1140, 

### II42 (D.C. 1985), those 

### potentially-innocent actions 

### would nonetheless have supported probable 

### cause. But here, 

### unlike 

### in Wesby, any 

### potentially suspicious conduct could not have been 

### criminal because 

### Wilkes knew no crime had occurred atthe 

### time she called 

### for 

### Mehari's arrest. 

### t6probable causethat she is entitled 

### to qualified 

### immunity. See 

### Defs.' Opp'n to 

### Pl.'s Mot.



### for Summ, J. 

### at 

### 12. Uttering the 

### word'ookay" inthis context, when 

### Mehari clearly had trouble understanding 

### Wilkes, rnight have 

### provided qualified irnrnunity had 

### Mehari reached 

### for his 

### wallet, invited Wilkes into his car, or 

### simply remained atthe gas station. 

### But that is not what happened 

### here! As Mehari notes 

### in his 

### brief, any suggestion

### of an agreement between 

### him and

### Wilkes evaporated when 

### Mehari drove 

### away. See 

### Pl.'s 

### Mot for Summ. J. 

### at 10 

### (citing Sornberger 

### v. City of 

### Knoxville,434 F.3d 1006, 1016 (7th Cir. 2006).17 Because 

### Mehari 

### drove away,no reasonable 

### officer inWilkes's position could have believed she had probable cause 

### to signal 

### for an arrest on thefacts before me on summary 

### judgment. As such, 

### I deny summary 

### judgrnent asto

### plaintiff sfalse arrest clairn against Wilkes. 

### As 

### for Scott, Johnson, and Christian,ls however, 

### I

### will grant sumrnary 

### judgrnent because, not being present atthe exchange between 

### Mehari and

### Wilkes, they were entitled to 

### rely on

### Wilkes's signal. Officers who make an arrest based on another 

### officer's first-hand knowledge 

### "remain entitled to the protections 

### of qualified 

### immunity

## if

17

### Although Mehari cites a Seventh 

### Circuit case, the 

### proposition that an

### officer's reasonable suspicion or probable cause can be dispelled 

### by subsequent discoveries by the 

### police is clearly established 

### inthe 

### District of Colurnbia. See, e,g., Ramsey 

### v. United States,73 

## A3d 138,142 (D.C. 2013) 

### (explaining that 

### further observation 

### of suspect and surrounding circumstances meant 

### "that what we have assumed was the

### officer's legitimate suspicion that appellant had cornrnitted or was about 

### to 

### commit [a crirne] had been dispelled"). l8Christian was not 

### directly involved in the arrest, so 

### it is unclear 

### what Mehari's theory 

### of false arrest is asto 

### him. Nonetheless, 

### for the sake 

### of completeness, 

### I include 

### him alongside Scott and Johnson. 11

### it was 

### objectively reasonable"to 

### rely onthe other 

### officer's word "under the



### circumstances." Bolger v. 

### District of Columbia,608 F. Supp. 

### 2d 

### l0 (D.D.C. 2009) (citing Barham v. Salazar. 556 F.3d 844, 850 

### (D.C. Cir.2009)); see also 

### Barnhardt v, 

### District of Columbia,723 F. Supp. 

### 2d 

## l9l,216 (D.D.C.2010). Here, 

### Wilkes was posing

as an undercover 

### prostitute and spoke 

### with Mehari for more than enough 

### timeto agree to

afuture 

### liaison or break 

### off an unsuccessful 

### negotiation. To say the least, the

### officers did not need 

### to see money exchanged or asexual act 

### performed 

### in orderto reasonably 

### rely on 

### Wilkes's 

### signal. As such, the other defendants areentitled 

### to qualified 

### immunity on 

### Mehari's false arrest 

### claim, so 

### I grant summary 

### judgment in

### their favor. 

### CONC USION For the foregoing reasons, defendants' 

### Motion for Summary Judgment is 

### GRANTED in part and 

### DENIED in 

### part. The 

### motion is 

### DENiED as

### to Count 

### II against 

### Wilkes. The 

### motion is 

### GRANTED infavor 

### of all other defendants as

### to Count 

### II and 

### in favor of Wilkes and 

### all other defendants as

### to

### all other 

### counts. 

### Plaintiff s

### Motion for SummaryJudgment is 

### DENIED. A separate Order consistent 

### with this decision accompanies 

### this Memorandum Opinion.



### RICHARD EON United States 

### District Judge 

## \

18