Dukore v. District of Columbia

799 F.3d 1137, 419 U.S. App. D.C. 103, 92 Fed. R. Serv. 3d 504, 2015 U.S. App. LEXIS 14935, 2015 WL 5022397
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 25, 2015
Docket13-7150
StatusPublished
Cited by43 cases

This text of 799 F.3d 1137 (Dukore v. District of Columbia) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dukore v. District of Columbia, 799 F.3d 1137, 419 U.S. App. D.C. 103, 92 Fed. R. Serv. 3d 504, 2015 U.S. App. LEXIS 14935, 2015 WL 5022397 (D.C. Cir. 2015).

Opinion

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge:

The “Occupy Movement” claims as its purpose the exposure of “how the wealthiest 1% of society are promulgating an unfair global economy!.]” Second Amended Complaint ¶ 11. A “core component” of the movement’s message is “peaceful protests, or ‘occupations’ ” accomplished through the “physical occupation” of public spaces, which is “expressed through the establishment of tents.” Id. ¶ 14.

In the District of Columbia, however, a municipal regulation forbids any person from “set[ting] up, maintainfing], or establishing] any camp or any temporary place of abode in any tent” on public property without the Mayor’s authorization. D.C.Code. Mun. Regs. Title 24, § 121.1. Occupy members Samuel Dukore and Kel *1139 ly Canavan were arrested for violating that regulation when, late one February evening, they assembled and sat inside an Occupy tent on a sidewalk by Merrill Lynch’s office in Washington, D.C. Dukore and Canavan then sued, alleging that their arrests violated their rights under the federal Constitution and District law. Because their arrests did not violate clearly established law, we affirm the district court’s dismissal of their complaint.

I

Statutory and Regulatory Background

A District of Columbia municipal regulation provides that:

No person or persons shall set up, maintain, or establish any camp or any temporary place of abode in any tent, wagon, van, automobile, truck, or house trailer, of any description, or in any combination, on public or private property, without the consent of the Mayor of the District of Columbia.

D.C.Code. Mun. Regs. Title 24, § 121.1.

The District’s First Amendment Assemblies Act provides, as relevant here, that “individuals conducting a First Amendment assembly * * * may use a stand or structure so long as it does not prevent others from using the sidewalk.” D.C.Code § 5-331.05(g). The Assemblies Act cautions, however, that assemblies and protests may be subject to “reasonable time, place, and manner restrictions^]” D.C.Code § 5-331.04(b).

Factual Background

Because the district court dismissed the complaint for failure to state a claim, we must accept as true the following facts as alleged in the Second Amended Complaint (“Complaint”). See Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C.Cir.2014).

On the evening of February 13, 2012, Dukore and Canavan joined with a group of fewer than fifty protesters and set up tents on the sidewalk outside Merrill Lynch’s Washington, D.C., office to “express Plaintiffs’ statement of the 99% taking back society and government from the grip of banking and financial institutions[.]” Complaint ¶ 20. The tents, which “clearly identified the protest as part of Occupy DC,” did not prevent others from using the sidewalk. Id. Some time after the protesters had set up their tents, officers from the Metropolitan Police Department instructed them to remove their tents or face arrest. Id. ¶ 24. The officers repeated that directive about forty-five minutes later, at which point the protesters took down all of the tents. Id. ¶ 25.

But Dukore.and Canavan then reassembled one of the tents and sat down inside of it. Complaint ¶26. There was “no visible sleeping/living equipment inside or around the tent[J” Id. ¶ 28. After three warnings, the police arrested Dukore and Canavan for violating the regulation against setting up a temporary abode on public grounds. Id. ¶ 26. The arrest occurred “at approximately 10:44 p.m.” Dukore Br. 14 n. 8; see also District Br. 24. Dukore and Canavan were released “approximately 3-4 hours later,” and the charges were subsequently “no-papered” (that is, dropped). Complaint ¶ 26. The tent was seized, and Dukore and Canavan were not told how they could retrieve it. Id. ¶ 27. They believe that the tent was destroyed. Id.

Procedural History

Dukore and Canavan filed suit in the United States District Court for the District of Columbia alleging (i) false arrest and false imprisonment under District of Columbia law, (ii) wrongful conversion of their tent, (iii) retaliatory arrest in violation of the First Amendment, (iv) arrest without probable cause in violation of the Fourth Amendment, and (v) deprivation of their tent without due process, in violation *1140 of the Fifth Amendment. Complaint ¶¶ 37-60. The Complaint named as defendants the District of Columbia, several police officers, and an Inspector at the District’s Department of Consumer and Regulatory Affairs, who allegedly advised the officers on the scene of the applicability of the temporary-abode regulation (collectively, “the District”). Complaint ¶¶ 3-6.

The district court granted the District’s motion to dismiss. It concluded that Dukore and Canavan had failed to state a claim for false arrest or imprisonment, or for the alleged Fifth Amendment violation, and that the individual defendants were entitled to qualified immunity on the First and Fourth Amendment claims. The court dismissed all of those counts with prejudice. See Dukore v. District of Columbia, 970 F.Supp.2d 23, 34 (D.D.C.2013). The court also ruled that Dukore and Canavan had stated a claim for conversion, but at their request, dismissed that count of the complaint “without prejudice to refile in [D.C.] Superior Court.” Id. at 34 n. 9 (internal quotation marks omitted). The court designated its order dismissing the action as “a final, appealable order.” J.A. 41.

Dukore and Canavan timely appealed. The conversion claim is not at issue on appeal because the district court dismissed it at Dukore’s and Canavan’s request. Dukore and Canavan have also chosen not to press their Fifth Amendment due process claim on appeal, so the district court’s dismissal of that claim is conclusive.

II

Analysis

Jurisdiction

The first order of business is always to decide whether we can decide the appeal. The district court had federal question jurisdiction over the constitutional claims, 28 U.S.C. § 1331 and 42 U.S.C. § 1988, and supplemental jurisdiction over the related District law claims, 28 U.S.C. § 1367. This court has appellate jurisdiction under 28 U.S.C. § 1291 over “final decisions” of the district court.

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799 F.3d 1137, 419 U.S. App. D.C. 103, 92 Fed. R. Serv. 3d 504, 2015 U.S. App. LEXIS 14935, 2015 WL 5022397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dukore-v-district-of-columbia-cadc-2015.