Dukore v. District of Columbia

970 F. Supp. 2d 23, 2013 WL 5278353, 2013 U.S. Dist. LEXIS 134037

• Court: District Court, District of Columbia
• Decided: September 19, 2013
• Docket: Civil Action No. 2012-0409
• Status: Published

Opinion

MEMORANDUM OPINION

RICHARD W. ROBERTS, Chief Judge.

Plaintiffs Samuel Dukore and Kelly Canavan bring damages claims under 42 U.S.C. § 1983 against Metropolitan Police Department (“MPD”) Officers Michael O’Dea, Robert Reese, and Hashim Zrien, and Lieutenant Allan Thomas, and Department of Commerce and Regulatory Affairs (“DCRA”) Inspector Gilbert Davidson (collectively, the “individual defendants”), alleging that they violated the First, Fourth, and Fifth Amendments of the U.S. Constitution and engaged in a civil conspiracy. The plaintiffs also bring common law claims against the individual defendants and the District of Columbia, the MPD, and the DCRA. The defendants move to dismiss the plaintiffs’ second amended complaint or, in the alternative, for summary judgment. Because the individual defendants are entitled to qualified immunity from the plaintiffs’ First and Fourth Amendment claims, and because the plaintiffs failed to state claims of civil conspiracy, false arrest, false imprisonment, and procedural due process violations, the de fendants’ motion will be granted as to those claims. Because the plaintiffs’ second amended complaint states a claim for conversion, the defendants’ motion will be denied as to that claim. At plaintiffs’ request, however, that claim will be dismissed without prejudice.

BACKGROUND

Plaintiffs are members of the Occupy D.C. movement. 1 2d Am. Compl. ¶ 10. Around 10:00 p.m. on February 13, 2012, the plaintiffs set up a tent on a sidewalk in Washington, D.C. in connection with an Occupy D.C. protest. Id. ¶¶ 14, 16; Defs.’ Mot. to Dismiss or, in the Alternative, for Summ. J. (“Defs.’ Mot.”), Stmt, of Material Facts ¶ 1; Pl.’s Stmt, of Facts ¶ 1. The tent “clearly identified the protest as part of Occupy DC.” 2d Am. Compl. ¶ 20. The MPD defendants warned the plaintiffs multiple times that if they did not remove the tent, they would be arrested. Id. ¶¶ 25-27. One of the MPD defendants consulted with Inspector Davidson who advised the officer that the plaintiffs were violating a District of Columbia municipal regulation. Id. ¶ 25. When the plaintiffs refused to leave the tent, the MPD defendants arrested the plaintiffs and took the plaintiffs’ tent. Id. ¶¶ 26-27.

The plaintiffs’ second amended complaint seeks damages from all of the defendants for false arrest and false imprisonment and conversion of their tent. The complaint also brings damages claims under 42 U.S.C. § 1983 against the individual defendants alleging that the defendants violated the plaintiffs’ rights under the First, Fourth, and Fifth Amendments. The complaint also alleges that the individual defendants violated § 1983 by engaging in a civil conspiracy to violate the plaintiffs’ First and Fourth Amendment rights.

The defendants move to dismiss the second amended complaint or, in the alternative, for summary judgment, arguing, in part, that the individual defendants are entitled to qualified immunity from the plaintiffs’ constitutional claims. The defendants also argue that the second amended complaint fails to allege sufficient facts to state Fifth Amendment and D.C. common law claims. The plaintiffs oppose.

DISCUSSION

A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff fails to state a claim under which relief can be granted. See Fed.R.Civ.P. 12(b)(6).

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.” 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Rollins v. Wackenhut Servs., Inc., 708 F.3d 122, 129-30 (D.C.Cir. 2012).

When considering a Rule 12(b)(6) motion, a court construes the complaint “in the light most favorable to the plaintiff and ‘the court must assume the truth of all well-pleaded allegations.’ ” Bonaccorsy v. District of Columbia, 685 F.Supp.2d 18, 22 (D.D.C.2010) (quoting Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004)). In deciding a motion to dismiss, a court may consider “only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). 2

1. CONSTITUTIONAL CLAIMS

The defendants move to dismiss the plaintiffs’ § 1983 damages claims arguing that the individual defendants are entitled to qualified immunity. Defs.’ Mot., Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss or, in the Aternative, for Summ. J. (“Defs.’ Mem.”) at 6-18. The defendants also argue that the plaintiffs did not state a procedural due process claim under the Fifth Amendment. Id. at 18-21.

“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 person would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[T]he defense of qualified immunity challenges the complaint for failure to state a claim upon which relief may be granted.” Bailey v. U.S. Marshal Serv., 584 F.Supp.2d 128, 131 (D.D.C.2008); see also Ford v. Mitchell, 890 F.Supp.2d 24, 32 (D.D.C.2012).

To resolve a government official’s qualified immunity claim, “a court must decide [ (1) ] whether the facts that a plaintiff has alleged ... or shown ... make out a violation of a constitutional right [and (2) ] whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.” Pearson, 555 U.S. at 232, 129 S.Ct. 808 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In analyzing the first issue, courts determine whether “facts alleged show the officer’s conduct violated a constitutional right.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. “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.” Id. at 202, 121 S.Ct. 2151. Courts may exercise their discretion as to which of these prongs to address first, because if a constitutional right is not clearly established, defendants are entitled to qualified immunity whether or not that right was violated. See Pearson, 555 U.S. at 236, 129 S.Ct. 808; Jones v. Home, 634 F.3d 588, 597 (D.C.Cir.2011).

A. First Amendment claim

The First Amendment guarantees the right to free speech. U.S. Const, amend. I. The plaintiffs allege that the defendants violated their clearly established right to be free “from government disruption of, interference with, or retaliation for, engagement in free speech, assembly, association, petition and free press activities,” Mem. of P. & A. in Opp’n to Defs.’ Mot. to Dismiss or, in the Alternative, for Summ. J. (“Pls.’ Opp’n”) at 6 (internal quotation marks omitted), by arresting them in retaliation for their “exercise of their right to express themselves by displaying a tent as part of Occupy DC,” 2d Am. Compl. ¶ 45. The defendants argue that they are entitled to qualified immunity from the plaintiffs’ First Amendment claim, in part, because the existing law at the time of the arrest did not put the officers on notice that their conduct would be clearly unlawful. If the individual defendants reasonably believed that the plaintiffs’ actions violated a law, the plaintiffs “had no clearly established First Amendment right to express [themselves] as [they] did.” Olaniyi v. District of Columbia, 416 F.Supp.2d 43, 54 (D.D.C.2006).

1. Whether the individual defendants reasonably relied on title 24, section 121.1 of the D.C. Municipal Regulations

The individual defendants allege that the MPD defendants arrested the plaintiffs for violating title 24, section 121.1 of the D.C. Municipal Regulations. Section 121.1 provides that “[n]o person or persons shall set up, maintain, or establish any camp or temporary place of abode in any tent ... on public or private property, without the consent of the Mayor of the District of Columbia.” D.C. Mun. Regs. tit. 24, § 121.1.

Generally, an officer is entitled to assume that a regulation enacted by a state legislature is valid. See Lederman v. United States, 291 F.3d 36, 47 (D.C.Cir.2002); cf Grossman -v. City of Portland, 33 F.3d 1200, 1210 (9th Cir.1994) (“[A]n officer who reasonably relies on the legislature’s determination that a statute is constitutional should be shielded from personal liability.”). This is because “ ‘[t]he enactment of a law forecloses speculation by enforcement officers concerning its constitutionality — with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.’ ” Lederman, 291 F.3d at 47 (quoting Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979)). Thus, an officer who relies on a duly enacted regulation is entitled to qualified immunity unless the regulation is grossly and flagrantly unconstitutional. See Kroll v. U.S. Capitol Police, 847 F.2d 899, 902 (D.C.Cir.1988) (explaining that “defendant’s entitlement to qualified immunity raises only a narrow question”).

In their second amended complaint, the plaintiffs argue that the defendants should have known that § 121.1 was “plainly unconstitutional on its face and as applied to the Plaintiffs’ conduct” under the First Amendment because the regulation grants “completely unfettered discretion to the Mayor, without any standards or guidelines, to determine which protesters are allowed to establish abodes in tents as expressive activity, or activity facilitative of speech, and which ones are not.” 2d Am. Compl. ¶ 30. However, the plaintiffs do not further argue that the regulation was so grossly unconstitutional that a reasonable person should have known that it was unconstitutional. 3 Because the plaintiffs have not shown that § 121.1 was grossly or flagrantly unconstitutional, the individual defendants were entitled to assume that § 121.1 was valid. 4

2. Arresting the plaintiffs

Because the individual defendants were entitled to believe that § 121.1 was valid, the individual defendants’ “assertion of qualified immunity to the [plaintiffs’] First Amendment claim thus hinges on whether a reasonable officer, possessing the same information as the [individual] defendants, could have viewed the [plaintiffs’] behavior” as a violation of § 121.1. See Olaniyi, 416 F.Supp.2d at 54 (internal quotation marks omitted); see also Pearson, 555 U.S. at 244, 129 S.Ct. 808 (explaining that whether an officer’s actions violated a clearly established law turns on the “ ‘objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken’” (quoting Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999))).

An officer must have probable cause to support making an arrest. See U.S. Const, amend. IV. Thus, the individual defendants are immune from suit if “reasonable officers in their positions ‘could have believed that probable cause existed to arrest [the plaintiffs].’ ” Reiver v. District of Columbia, 925 F.Supp.2d 1, 7 (D.D.C.2013) (quoting Hunter v. Bryant, 502 U.S. 224, 228-29, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). A police officer has probable cause for an arrest if the officer “ha[s] enough information to warrant a man of reasonable caution in the belief that a crime has been committed and that the person arrested has committed it.” Barham v. Ramsey, 434 F.3d 565, 572 (D.C.Cir.2006) (internal quotation marks omitted).

The plaintiffs allege that the individual MPD defendants did not have probable cause to arrest them for violating § 121.1. See Pis.’ Opp’n at 7-12. The defendants counter that the plaintiffs have not shown that it would have been clear to a reason able officer that the plaintiffs were not violating § 121.1. Defs.’ Mem. at 16-17.

The defendants argue that the individual MPD defendants had probable cause to arrest the plaintiffs because the plaintiffs set up a tent on a public sidewalk and were inside the tent after 10:00 p.m. They contend that a tent is a “traditional ‘temporary place of abode’ ” and the officers had reasonable cause to believe that a tent occupied late at night was a “temporary place of abode.” See id. at 13-14; see also Reply to Pis.’ Opp’n to Defs.’ Mot. to Dismiss or, in the Alternative, for Summ. J. (“Defs.’ Reply”) at 17. Because the tent was set up on a public sidewalk at a time when most people sleep, tents are commonly used as temporary abodes, and the plaintiffs did not have a permit, say the defendants, it was reasonable for the individual defendants to believe that the plaintiffs were violating § 121.1.

The plaintiffs admit that they set up a tent on the sidewalk, see 2d Am. Compl. ¶ 16, but they argue that the defendants did not have probable cause to believe that the tent was an “abode” for at least two reasons. First, they argue that “there was no visible sleepingfiiving equipment inside or around the tents.” Id. ¶ 28. Second, they argue that the tent was not an abode because signs and messages on the tent demarcated it as “clearly part of a protest,” id., and that evidence that the tent was part of a protest negates any presumption that the tent was being used as an abode, see Pis.’ Opp’n at 9. 5

The plaintiffs have not shown that it was unreasonable for an officer to believe, even mistakenly, that a tent occupied late at night was a temporary abode under § 121.1 because there was no visible sleeping and living equipment. For instance, the plaintiffs have not shown that it was unreasonable for an officer to believe that they could have temporarily resided in the tent without additional equipment or that the plaintiffs could reside in a sparsely populated tent. Moreover, § 121.1 does not require that all “abodes” contain sleeping and living materials.

Similarly, that the plaintiffs’ tent had signs and messages on it did not make the officers’ conduct unreasonable. The plaintiffs admit that other Occupy D.C. protestors were using tents as both instruments of protest and abodes several blocks away. See Pis.’ Opp’n at 9-10. The plaintiffs identified themselves to the officers as part of the Occupy movement. See 2d Am. Compl. ¶ 20. It was not unreasonable for the individual defendants to believe that the plaintiffs’ tent was being used both as a sign of protest and an abode. 6 See Defs.’ Reply at 17. Accordingly, the individual defendants are entitled to qualified immunity on the plaintiffs’ claim that arresting them violated their rights under the First Amendment because it was not unreasonable for the individual defendants to believe that probable cause existed that the plaintiffs were violating § 121.1.

3. Taking the plaintiffs’ tent

“[W]hile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.” Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989). The plaintiffs argue that their tent was material “presumptively protected by the First Amendment.” As such, taking their tent, even after a valid arrest, violated the First Amendment. See Pis.’ Opp’n at 24. In Fort Wayne Books, the Supreme Court considered whether seizing pretrial all of the publications of a bookstore that was allegedly distributing obscene materials was constitutional. There, Fort Wayne Books was charged, along with two other corporations, with violating Indiana’s RICO law by “engaging] in a pattern of racketeering activity by repeatedly violating the state laws barring the distribution of obscene books and films.” Fort Wayne Books, 489 U.S. at 51, 109 S.Ct. 916. The trial court found that there was probable cause that the bookstore had violated Indiana’s RICO law and ordered that the bookstore, including all of its publications, be seized. The Supreme Court reversed the pretrial seizure order. The Court held that “[w]hile a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.” Id. at 63, 109 S.Ct. 916. Thus, there is an exception to the general rule that any evidence of a crime can be “seized on probable cause” where “materials presumptively protected by the First Amendment are involved.” Id.

Here, the plaintiffs assume without explanation that Fort Wayne Books applies to this case. However, Fort Wayne Books was an obscenity case and the plaintiffs have not established that their case is entitled to the same additional protections. Cf. Boggs v. Rubin, 161 F.3d 37, 41 (D.C.Cir.1998) (noting that Fort Wayne Books is an obscenity case “where significant judgment was needed to determine if the seized materials violated community standards” and distinguishing the seizure of counterfeit currency an artist created because “[t]he important First Amendment concerns advanced by the Supreme Court in the obscenity cases [were] not present to the same extent” in the counterfeit currency case). Even if Fort Wayne Books could apply to the seizure of all tents of Occupy D.C. protestors, the plaintiffs complain only that it was unconstitutional for the officers to take their one tent. Taking the plaintiffs’ single tent is more similar to seizing a single copy of a book — which the Fort Wayne Books Court allowed on a finding of probable cause— than to taking all copies of a publication completely out of circulation, which requires a greater showing. Because the plaintiffs have not shown that taking their tent requires more than a showing of probable cause, seizing the plaintiffs’ tent after a valid arrest did not violate the plaintiffs’ First Amendment rights. Thus, the individual defendants are entitled to qualified immunity from the plaintiffs’ claim that taking their tent violated the First Amendment.

B. Fourth Amendment claim

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const, amend. IV. The plaintiffs allege that the defendants violated this clearly established right. The defendants counter that the officers had probable cause to arrest the plaintiffs and thus did not violate the plaintiffs’ Fourth Amendment rights.

1. Arresting the plaintiffs

An officer making an arrest is entitled to qualified immunity where clearly established law does not show that the seizure violates the Fourth Amendment. “It is well settled that an arrest without probable cause violates the [F]ourth [A]mendment.” Martin v. Malhoyt, 830 F.2d 237, 262 (D.C.Cir.1987) (citing Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). As is discussed above, it was reasonable for the individual defendants to believe that probable cause existed to arrest the plaintiffs for violating § 121.1. Thus, the defendants are entitled to qualified immunity from the plaintiffs’ claim that their arrest violated the Fourth Amendment because the facts alleged do not show that the defendants’ conduct violated the plaintiffs’ Fourth Amendment rights.

2. Taking the plaintiffs’ tent

The plaintiffs also claim that taking their tent without a warrant violated their Fourth Amendment rights. 2d Am. Compl. ¶ 51. Seizure incident to arrest is justified “when used to seize the fruits, implements or evidence of the crime for which the arrestee is seized in order to prevent its destruction.” United States v. Green, 465 F.2d 620, 621-22 (D.C.Cir.1972). Here, the plaintiffs were reasonably arrested for violating § 121.1. During their arrest, the defendants seized the plaintiffs’ tent which the officers could reasonably believe was a temporary abode. Because § 121.1 makes setting up a temporary abode in a tent in a public place illegal, it was reasonable for the officers to believe that the tent was evidence that the plaintiffs violated § 121.1.

C. Fifth Amendment claim

“The Fifth Amendment Due Process Clause protects individuals from deprivations of ‘life, liberty, or property, without due process of law.’ ” Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 689 (D.C.Cir.2009) (quoting U.S. Const, amend. V). The plaintiffs allege that the defendants took their tent without notice or a hearing, and without providing the plaintiffs “an opportunity to present their claim of entitlement to recover the property,” in violation of the Fifth Amendment’s procedural due process guarantee. See 2d Am. Compl. ¶¶ 58-59. The defendants argue that the plaintiffs have not stated a procedural due process claim.

“In general, a procedural due process violation consists of a(1) deprivation by the government, (2) of life, liberty, or property, (3) without due process of law.” Spadone v. McHugh, 864 F.Supp.2d 181, 188 (D.D.C.2012); see also Propert v. District of Columbia, 948 F.2d 1327, 1331 (D.C.Cir.1991). Where adequate post-deprivation state remedies are available, no cognizable constitutional claim for procedural due process can be stated. Crawford v. Parron, 709 F.Supp. 234, 237 (D.D.C.1986) (citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).

D.C. law provides that confiscated property may be returned to the owner “[u]pon satisfactory evidence of the ownership of property.” D.C.Code § 5-119.06(a). “Seizure or impoundment of property by the Metropolitan Police Department from an individual is prima facie evidence of that person’s ownership of the property.” D.C.Code § 5-119.06(a-1). Because this adequate post-deprivation remedy exists, see Dickson v. Mattera, 38 Fed.Appx. 21, 22 (D.C.Cir.2002), the plaintiffs cannot state a procedural due process claim. 7

II. SECTION 1983 CIVIL CONSPIRACY CLAIM

The plaintiffs allege that the individual defendants conspired to violate the plaintiffs’ First and Fourth Amendment rights. To state a civil conspiracy claim, a plaintiff must demonstrate

(1) an agreement between two or more persons; (2) to commit an unlawful action, or to commit a lawful act by unlawful means; (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; and (4) the overt act was done pursuant to a common scheme.

Bush v. Butler, 521 F.Supp.2d 63, 68 (D.D.C.2007) (citing Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir.1983)). To recover under 42 U.S.C. § 1983, plaintiffs must additionally show “that the purpose of the alleged conspiracy was to deprive the plaintiffs of their constitutional rights.” Parker v. Grand Hyatt Hotel, 124 F.Supp.2d 79, 88 (D.D.C.2000).

The defendants argue that the plaintiffs have not stated a § 1983 civil conspiracy claim, in part, because the plaintiffs have not alleged sufficient facts to show that the defendants agreed to take part in unlawful conduct. Defs.’ Mem. at 24-25. In their opposition, the plaintiffs did not respond to this argument. Thus, the defendants’ argument will be deemed conceded. See Iweala v. Operational Tech. Servs., Inc., 634 F.Supp.2d 73, 80 (D.D.C.2009) (“It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” (internal quotation marks omitted)). Accordingly, the defendants’ motion to dismiss the plaintiffs’ civil conspiracy claim will be granted.

III. COMMON LAW CLAIMS

A. False arrest and false imprisonment

“The focal point of [a false arrest or false imprisonment] action is the question whether the arresting officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting officer is privileged and the action fails.” Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977).

Justification can be established by showing that there was probable cause for arrest of the plaintiff on the grounds charged. A lesser showing can also be made, namely that the arresting officer had reasonable grounds to believe a crime had been committed and that plaintiffs arrest was made for the purpose of securing the administration of the law (i.e., that the officer acted in good faith).

Id. (citations omitted); see also Reiver, 925 F.Supp.2d at 7 (“To succeed under a claim for common law [false arrest or] false imprisonment, a plaintiff must demonstrate that the police acted without probable cause, in an objective constitutional sense, to effectuate his arrest.” (internal quotation marks omitted)). As is discussed above, it was reasonable for the individual defendants to believe that there was probable cause to arrest the plaintiffs. Thus, the plaintiffs’ false arrest and false imprisonment claims will be dismissed.

B. Conversion

The plaintiffs allege that the defendants “dispossessed” the plaintiffs of their tent or “disposed” of their tent and “wrongfully destroyed” their tent.2d Am. Compl. ¶ 41. Under D.C. law, conversion is “an unlawful exercise of ownership, dominion and control over the personalty of another in denial or repudiation of his right to such property.” Blanken v. Harris, Upham & Co., Inc., 359 A.2d 281, 283 (D.C.1976). Thus, “[a] defendant will be liable for conversion if the plaintiff shows that the defendant participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3) over the personal property of another, (4) in denial or repudiation of that person’s rights thereto.” Gov’t of Rwanda v. Rwanda Working Grp., 227 F.Supp.2d 45, 62 (D.D.C.2002). The defendants argue that the plaintiffs have not pled facts sufficient to show that the defendants unlawfully exercised ownership of the plaintiffs’ tent. 8

In their second amended complaint, the plaintiffs allege that they were unlawfully arrested by the individual defendants, see 2d Am. Compl. ¶ 28, that the plaintiffs were in rightful possession of the tent, id. ¶42, and that after they were arrested, the individual defendants took and destroyed the tent, id. ¶ 27. Thus, the plaintiffs have sufficiently stated a claim of conversion by alleging that their arrest was improper and thus the subsequent taking and dominion over their tent was unlawful. Accordingly, the defendants’ motion to dismiss this claim will be denied. 9

CONCLUSION

The individual defendants are entitled to qualified immunity from the plaintiffs’ First and Fourth Amendment claims. The plaintiffs did not state a claim for violation of the Fifth Amendment, civil conspiracy, and false arrest and false imprisonment. The plaintiffs have stated a claim for conversion. However, at the plaintiffs’ request, their conversion claim will be dismissed without prejudice. A separate Order accompanies this Memorandum Opinion.

1 . The plaintiffs describe the Occupy Movement as

a people-initiated movement that commenced with Occupy Wall Street in Zucotti Park, now called Liberty Square, in Manhattan's Financial District in New York City on September 17, 2011. At its peak, Occupy had spread to hundreds of cities, towns and states in the United States and to more than 1500 locations worldwide. The movement seeks to expose how the wealthiest \% of society are promulgating an unfair global economy that is harming people, and destroying communities worldwide. The Occupy protesters have come out to protest and to petition the government for more economic equality through societal and governmental changes.

2d Am. Compl. ¶ 11.

2 . In support of their motion, the defendants present matters outside the pleadings. Because the matters are not considered in resolving the defendants’ motion, this motion will be treated as a motion to dismiss and will not be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(d).

3 . In their opposition, the plaintiffs argue that a reasonable person would have known that § 121.1 is not narrowly tailored to serve a significant government interest and that the regulation’s licensing scheme does not " 'contain adequate standards to guide the official’s decision and render it subject to effective judicial review.’ ” Pls.’ Opp’n at 13-14 (quoting Thomas v. Chi. Park Dist., 534 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002)). Even if the plaintiffs were correct that § 121.1 is not narrowly tailored, they have not shown that the regulation is flagrantly unconstitutional. See Lederman, 291 F.3d at 47 (finding that although regulatory qualifiers "cannot begin to satisfy the narrow tailoring requirement” the regulation was not grossly unconstitutional because the regulation made some attempt to narrow its breadth). Section 121.1 does not require that a person obtain a permit before using any public space. Instead, the regulation requires a permit before a person can establish a “temporary place of abode." D.C. Mun. Regs. tit. 24, § 121.1. Thus, there is some attempt to tailor the regulation. Moreover, contrary to the plaintiffs’ assertion that “there are no standards [in § 121.1] to guide [the Mayor’s] discretion," Pis.’ Opp’n at 14, the municipal regulations provide general guidelines for when the May- or may issue a permit to use public space, see D.C. Mun. Regs. tit. 24, § 100.

4 . The plaintiffs also argue that the defendants knew or should have known that § 121.1 “does not prohibit the use of tents for First Amendment assemblies” because the First Amendment Assemblies Act (“FAAA”), D.C.Code § 5-331.05(g), "establishes a right to use a stand or structure in connection with a First Amendment assembly” without a permit. See 2d Am. Compl. ¶31. Even assuming, as the plaintiffs argue, that § 121.1 is unlawful under the FAAA, the plaintiffs have shown only that the defendants applied the wrong law. However, the individual defendants are still entitled to qualified immunity because qualified immunity extends to officers who make “mere mistakes in judgment, whether the mistake is one of fact or one of law.” See Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Furthermore, if anything, the alleged conflict between § 121.1 and the FAAA makes the law, and thus the plaintiffs' rights under the law, less clear. Therefore, the plaintiffs have not shown that they had a clearly established right to set up their tent on a public sidewalk as part of a protest.

5 . Plaintiffs also argue that because they had not yet slept in the tent, it was not an abode, and that at the time of their arrest there was only a remote possibility that they would use it as an abode at some point in the future. See Pis.' Opp’n at 11. However, § 121.1 prohibits setting up a temporary abode and does not require a person to have already slept in the abode for a violation to occur. See D.C. Mun. Reg. tit. 24, § 121.1.

6 . The fact that other Occupy D.C. protestors in Farragut Park were using tents as abodes does not itself establish probable cause or create "guilt by association,” as the plaintiffs suggest. Pis.' Opp’n at 9. Rather, a reasonable officer would understand that some tents used to protest can also be abodes.

7 . In their opposition, the plaintiffs argue that the defendants have not notified the plaintiffs of any post-deprivation procedures to get their tent back. The Fifth Amendment does not require the defendants to notify the plaintiffs of these procedures. See City ofW. Covina v. Perkins, 525 U.S. 234, 241, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999) (explaining that the Due Process Clause does not require "individualized notice of state-law remedies which ... are established by published, generally available state statutes”).

8 . In their opposition, the plaintiffs do not directly address the defendants’ legal arguments. However, contrary to the defendants' assertion in their reply, see Defs.’ Reply at 25 n. 18, the plaintiffs did not concede the defendants’ arguments. Instead, the plaintiffs argue that they should "succeed on their common law claims” because they "established that their rights were violated under § 1983.” Pis.' Opp'n at 31.

9 . However, in their opposition, the plaintiffs request that "[i]f the Court dismisses Plaintiffs' § 1983 claims, [their conversion claim] be dismissed without prejudice to re-file in Superior Court.” Pis.’Opp’n at 31. Accordingly, the conversion claim will be dismissed without prejudice.