D.C. v. Wesby: "Lurid Optics" Overwhelm Case

In District of Columbia v. Wesby (U.S. Supreme Court, Jan. 22, 2018), the claim was false arrest.  The result was 9-0 in favor of the police (the District of Columbia's Metropolitan Police Department).  Apparently the arrestees conceded the unfavorable facts initially in their opposition to the petition for writ of certiorari.  As a result, the arrestees waived their right to challenge those facts later in their merits brief, under the Supreme Court’s Rule 15.2. 



By Catherine Park

The arrestees had won a judgment of $1.68 million in the federal trial court, and the federal appeals court had affirmed the win.  In the Supreme Court case, however, the District of Columbia—and the United States, as amicus curiae—pounced on a set of facts that the arrestees initially conceded to prove that the police had probable cause to arrest under the following circumstances:

A raucous party was held at a vacant, unkempt house, which caused neighbors to call the police (one caller was an elected official of the District of Columbia).  When the police arrived, they found partygoers smoking marijuana, receiving lapdances from two strippers, and a naked woman surrounded by men in an upstairs bedroom strewn with condoms.  Police questioned the partygoers, who asserted they had been invited, but no one could identify who invited them, except the two strippers, who identified the owner of the house as a woman named "Peaches."  When the police telephoned Peaches, she was nervous and claimed she was renting the house and hung up.  Police called her back, and she admitted she didn't have permission to use the house.  The police spoke to the owner of the house, who said he had been trying to negotiate a residential lease with Peaches, but no agreement was reached.  Several partygoers hid from the police or fled. 

The police arrested the partygoers for unlawful entry.  At the police station, the lieutenant charged them with disorderly conduct instead.  The partygoers were released, and the charges were eventually dropped.  16 of the 21 partygoers sued the District of Columbia for false arrest, alleging there was no probable cause to arrest for unlawful entry.  The federal trial court sided with the partygoers and awarded partial summary judgment, reasoning that the officers’ investigation revealed no evidence that the partygoers knew or should have known that they were entering the house against the owner’s will.  

Too late, in their merits brief, the arrestees challenged the following "undisputed" facts: (1) whether Peaches lacked permission from the owner to invite the partygoers, (2) whether the owner told the police that Peaches didn’t have permission, (3) whether anyone hid or fled from police, (4) whether officers smelled marijuana in the home, and (5) whether the police received a concerned neighbor's "tip" that the house was supposed to be vacant. 

Without such facts, the police would have had more difficulty establishing probable cause to arrest.  The legal standard for probable cause was discussed again in Wesby:

To determine whether an officer had probable cause for an arrest, "we examine the events leading up to the arrest, and then … 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause."  Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v United States, 517 U.S. 690, 696 (1996)).  Because probable cause "deals with probabilities and depends on the totality of the circumstances," 540 U.S., at 371, it is "a fluid concept" that is "not readily, or even usefully, reduced to a neat set of legal rules," Illinois v. Gates, 462 U.S. 213, 232 (1983).  It "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity."  Id., at 243-244, n.13 (1983).  Probable cause "is not a high bar."  Kaley v. United States, 571 U.S. ______ (2014) (slip op., at 18).


Since the arrestees were surprised by the raid, their reticence when asked who invited them might be understandable.  Participating in a police investigation is voluntary for a person who hasn't been detained yet because, presumably, he isn't under suspicion yet.  See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality opinion) ("[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.").

However, the United States, as amicus curiae supporting the District of Columbia, pounced on the hemming and hawing of the arrestees to paint an unflattering picture—that these partygoers knew they were engaging in criminal activity and knew they had no right to enter the house.  The United States (Ass't Solicitor General), during oral argument in the Supreme Court case: 

"We are not saying that no one can accept a secondhand invitation to a party or that they cannot go to a party at the home of somebody they don't know or that, when they arrive, they have to inspect the lease to ensure that the person has authority to invite them.  All we're saying is that if a person finds himself or herself in a compromising situation … where they, as a matter of fact, are an intruder who is committing the actus reus of a crime, and especially if there are surrounding circumstances that would lead a reasonable observer to think that that may be what really is going on, then the deck is stacked against that person."  


Strippers, marijuana, and a naked woman surrounded by men and condoms might be susceptible to an inference of criminal activity, except the charges were dropped and no one was charged with prostitution or possession of a controlled substance.  The police, however, to beat the civil case for false arrest, had to prove that their actions in arresting the partygoers had been lawful, and so they exploited the lurid optics of the party to that end. 

The arrestees couldn't sufficiently overcome the police strategy.  An affidavit by one of the complaining neighbors asserted the house "used to be vacant; about a month ago I started seeing people using the home."  Such details reinforced the "lurid optics" prong of the case against the arrestees—that the house was regularly used for unlawful activity and that the arrestees knew about it and had attended more than one party at the house or another house in the neighborhood, although no evidence of such "ongoing party activity," implicating these arrestees, was introduced at all. 

Also, the condition of the house contributed to the "lurid optics."  The United States, during oral argument: 

"It wasn’t just that it was messy ….  [T]he house was considerably more dirty than just an ordinary house.  In fact, one of the individuals who went to the house said that the floor was so dirty, she was unwilling to sit on it.  There was trash strewn about.  There were used contraceptives strewn about.  I think that all of those things would lead a reasonable officer to think that perhaps these are just particularly messy houseguests, but this is also consistent with the type of party people would throw in a vacant house where they're not too concerned about the state that they leave it in."


The Supreme Court also held that the officers were entitled to qualified immunity under 42 U.S.C. § 1983, because they (1) neither violated a federal or statutory constitutional right, (2) nor reasonably understood that what they were doing was unlawful.  See Reichle v. Howards, 566 U.S. 658, 664 (2012). 

It was a devastating reversal for the arrestees, who actually won their case for false arrest along with $1.68 million in damages in the federal district court and were affirmed by the U.S. Court of Appeals for the D.C. Circuit.