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 in favor 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 that there 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 a genuine 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 more than metaphysical
doubt" on the 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
8 procedural 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 my view, 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 be found in the record of tliis
case. ,See note 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 his false arrest claim, so I likewise grant summary judgment to Wilkes on the Fifth Amendment clairn.
9 B. Count II: Fourth Amendment False Arrest
Mehari next argues that Scott and Johnson, acting on a signal from Wilkes,
arrested Mehari without probable cause, in violation of his rights under the Fourth
Amendment. I conclude that Scott and Johnson are entitled 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 at this
stage because, resolving genuine factual disputes in Mehari's favor, it would have been
clear to a reasonable officer in Wilkes's position that she did 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 a federal statutory or constitutional right and
(2) the unlawfulness of their conduct was 'clearly established at the 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 under the
law that she lacked probable cause. Both requirements are satisfied here.
First, on the 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 people to 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 a warrant, an arrest is reasonable if an officer has probable cause to
believe that the suspect committed a crime in the officer's presence. Iilesby,138 S. Ct. at
586. To determine whether an officer had probable cause for an arrest, I rnust "examine
the events leading up to the arrest, and then 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).
Yet the officer here failed to 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 engage or 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 necessary to prove any particular
language or conduct. Ordinarily it is a question of fact whether the acts and words of the
defendant, viewed in the 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).
11 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 a crime.
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 in favor of probable cause are:
. Mehari looked at Wilkes as he walked frorn the store at the gas station to his carll o Mehari lowered his driver's side window e Mehari saidoookay, okay" after Wilkes mentioned the arnount $30
The facts weighing against probable cause are:
o Mehari purchased a lottery ticket at the gas station (and so had at least some reason for being at the gas station aside from soliciting) Many times throughout their conversation, Mehari either said that he did not understand what Wilkes was saying or asked her questions demonstrating his lack of understanding a 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 a Wilkes initiated all talk of sexual activitvl2 r0 Most importantly, Mehari disputes that he called Wilkes prbtty and that 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, I think reasonable minds could differ as to whether Wilkes's attire was o'provocative."
12 It is of course true, point out, that a defendant need not initiate a as defendants conversation to ultimately be guilty of solicitation. 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 as the 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 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 he wanted to have sex or oral sex with her o By Wilkes's telling, Mehari made the fantastical statement (indicating non-comprehension) that he would tell his wife that Wilkes performed oral sex on hirn o Mehari explained that he did not need to wear a wedding 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 away from the gas station without Wilkes and began pulling onto the street before he was 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, the fact
that he actually 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 Officer Wilkes 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's telling, it was her regular practice to tell 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 7 6I .
l3As 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. 13 her that she had reserved a room at a nearby hotel where she would meet them. This
evidence has two problems in the context of this case. First, Wilkes candidly adrnits that
she does not remember actually telling Mehari she would meet hirn at the hotel; she
merely avers that it had been her practice to do so. This general statement, especially
when it was made in a declaration not subject to cross-examination, is insufficient for
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 at the 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, on the 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 is true, 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, at the 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 or those 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 . . . that the fdefendant] offered or agreed to engage in a sexual 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 a sexual 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 up various sexual acts, she
mentioned the sum $30, and she tried 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 on the defendant's repeated beckoning to passing motorists,
15 female attire (on a male defendant), presence in an area known for prostitution, and the
time of day. See id. Rejecting the sufficiency of this 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 a street corner, or take an aimless stroll, and shortly return to the scene, without fear of a conviction under S 22-2701.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 he drove away.
Ultimately, Wilkes's argument for the existence of qualified irnmunity rests on the
word "okay." In Wilkes's view, her offer to perform sexual acts and her setting a price of
$30, when combined with Mehari sayingoookay" thereafter, gets her close enough to
l5 The Rose case dealt with of the solicitation statute-soliciting for a lewd or a prong immoral purpose-that was confined to sodomy but was in all other respects identical to soliciting for prostitution. See Ford, 533 A.2d at 622 (setting out statute); Rose 53 5 A.2d at 851 n.2 ("soliciting for a lewd or immoral purpose is lirnited in the District of Colurnbia to soliciting for sodomy.").
16 The 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 stamen that he was '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 at the time she called for Mehari's arrest. t6 probable cause that she is entitled to qualified immunity. See Defs.' Opp'n to Pl.'s Mot.
for Summ, J. at 12. Uttering the word'ookay" in this 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 at the 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 in Wilkes's position could
have believed she had probable cause to signal for an arrest on the facts before me on
summary judgment. As such, I deny summary judgrnent as to plaintiff s false arrest
clairn against Wilkes.
As for Scott, Johnson, and Christian,ls however, I will grant sumrnary judgrnent
because, not being present at the 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 in the 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").
l8 Christian was not directly involved in the arrest, so it is unclear what Mehari's theory of false arrest is as to him. Nonetheless, for the sake of completeness, I include him alongside Scott and Johnson.
11 it was objectively reasonable" to rely on the 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 time to agree to
a future liaison or break off an unsuccessful negotiation. To say the least, the officers did
not need to see money exchanged or a sexual act performed in order to reasonably rely on
Wilkes's signal. As such, the other defendants are entitled 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 in favor 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
Summary Judgment is DENIED. A separate Order consistent with this decision
accompanies this Memorandum Opinion. \
RICHARD EON United States District Judge