Corrigan v. Glover

254 F.Supp.3d 184

Matthew CORRIGAN, Plaintiff,

v.Robert GLOVER, et al., Defendants.

Civil Action No. 12-173 (BAH).

United States District Court, District of Columbia.

Signed June 8, 2017

William R. Cowden, William R. Cowden, LLC, Washington, DC, for Plaintiff.

Kerslyn D. Featherstone, David A. Jackson, Stephanie Litos, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Matthew Corrigan, brought this lawsuit, pursuant to 42 U.S.C. § 1983, against the District of Columbia and over twenty named and unnamed officers of the Metropolitan Police Department ("MPD"), seeking damages for violation of his Fourth Amendment rights arising from a warrantless search of his home on February 3, 2010. See generally Compl., ECF No. 1; First Am. Compl.

("FAC"), ECF No. 11. During the ensuing litigation, twenty-two of the individual defendants were dismissed voluntarily by the plaintiff or their motions to dismiss or motions for summary judgment were granted.¹ This Court then granted the motions for summary judgment by the four remaining defendants, the District of Columbia, Lieutenant Robert Glover, Sergeant Kevin Pope, and Officer Mark Leone, ruling that no violation of a clearly established right had occurred and that the officers were entitled to qualified immunity. See Corrigan v. District of Columbia , Civil No. 12-173 (BAH), 2015 WL 5031364 (D.D.C. Aug. 25, 2015). This ruling was subsequently affirmed in part and reversed in part by the D.C. Circuit. See Corrigan v. District of Columbia , 841 F.3d 1022 (D.C. Cir. 2016).

Although before this Court the parties, in examining the totality of the circumstances, see Grady v. North Carolina , ––– U.S. ––––, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459 (2015) (noting "reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations"), treated the challenged MPD search as a single, continuous incident, the D.C. Circuit delineated two distinct searches based on the different purpose and scope of the searches conducted of the plaintiff's basement apartment by two separate MPD units, see Pl.'s Statement of Material Facts ("Pl.'s SMF"), Ex. 2, Dep. of Lt. Robert Glover ("Glover Dep.") at 38:13, ECF No. 87-1 (describing the plaintiff's home as an "English basement apartment"). Specifically, the D.C. Circuit concluded that while the MPD officers involved in the first search, conducted by the MPD's Emergency Response Team ("ERT"), were entitled to qualified immunity, Corrigan , 841 F.3d at 1035 ("For the brief and limited warrantless ERT ‘sweep’ of Corrigan's home, the officers had a sufficiently reasonable basis for believing there was probable cause to look for a potentially injured and incapacitated person as to entitle them to qualified immunity."), the MPD officers involved in the second search, conducted by the MPD's Explosive Ordinance Disposal unit ("EOD"), were not, id. ("We therefore hold that the EOD search violated Corrigan's rights under the Fourth Amendment."); id. at 1025 ("because no reasonable officer could have concluded such a basis [an exigency] existed for the second more intrusive search, the officers were not entitled to qualified immunity across the board"); id. at 1033 ("the extensive EOD search far exceeded the bounds of reasonableness").²

As the plaintiff points out, the defendants "did not appeal this ruling." Pl.'s Reply Mem. Supp. Mot. Part. Summ. J. and Mot. in Limine ("Pl.'s Reply"), at 4, ECF No. 147. The D.C. Circuit remanded the plaintiff's claim of municipal liability against the District of Columbia, which is now moot in light of the plaintiff's voluntary dismissal of the municipality, see Pl.'s Opp'n Defs.' Supp. Mot. Summ. J. ("Pl.'s Opp'n"), at 1, ECF No. 134, and the issue of whether Ofc. Mark Leone is entitled to qualified immunity "because [he] reasonably relied on the directive of [his] superior," in conducting the EOD search, Corrigan , 841 F.3d at 1038.³

The trial in this matter is scheduled to begin on the date the parties jointly suggested, on July 10, 2017. See Consent Motion for New Trial Date (May 20, 2017), ECF No. 143; Minute Order (May 22, 2017) (granting motion and scheduling trial for July 10, 2017). Pending before the Court are (1) Ofc. Leone's supplemental motion for summary judgment, Def.'s Supp. Mot. Summ. J. ("Def.'s Supp. MSJ"), ECF No. 131; (2) the plaintiff's motion in limine or for partial summary judgment, Pl.'s Mot. In Limine or Partial Summ. J. ("Pl.'s Mot."), ECF No. 138; and (3) the defendants' motions in limine, see Defs.' Mot. In Limine, ECF No. 104; Defs.' Mot. In Limine, ECF No. 105, which motions were originally denied as moot in 2015, see Order, ECF No. 125, but, on remand, have been reinstated, at the defendants' request, Defs.' Notice of Filing Re: Mots. In Limine, at 1, ECF No. 137.

I. BACKGROUND

The background of this case has been fully summarized in prior decisions in this case, see generally Corrigan v. District of Columbia , 841 F.3d at 1025-28 ; Corrigan v. District of Columbia , 2015 WL 5031364, at *1–4, and, thus, only those facts necessary for resolving the instant motions are provided below.

On February 2, 2010, during a telephone call to the National Suicide Hotline, the plaintiff informed the hotline operator that he was a military veteran and owned firearms. FAC ¶¶ 9. "After a short conversation, [the plaintiff] hung up, turned off [his] phone, took prescribed sleeping medication, and went to bed." Id. The hotline operator then called 911, Defs.' Suppl. Statement of Material Facts as to which there is no Genuine Dispute in Further Supp. of Defs.' Mot. Summ. J. ("Defs.' Suppl. SMF") ¶ 1, ECF No. 119-1, and MPD officers were dispatched to the plaintiff's home based on a "report of an ‘Attempted Suicide,’ " Def. District of Columbia's Mot. Summ. J., Ex. 5 ("Barricade Report from 2408 N. Capitol St. NW (5D) on Wednesday, February 3, 2010 (ERT # 10–11), Feb. 9, 2010 ("Incident Rep.")") at 1, ECF No. 76-4. After an odor of natural gas was detected, a barricade situation was declared and members of the MPD's ERT, part of the MPD's "Special Operations Division" ("SOD"), were dispatched to the scene. Id. at 1–2.

Around 2:30 A.M., approximately three-and-a-half hours after MPD officers first arrived on the scene, defendant Lt. Robert Glover arrived. Incident Rep. at 2; Defs.' Suppl. SMF ¶ 3. At approximately 4:00 A.M., the plaintiff awoke after hearing his name being called on a bullhorn and around 4:50 A.M. the plaintiff peacefully exited the apartment and was taken into police custody. FAC ¶¶ 10–11. The plaintiff did not give the MPD consent to enter his apartment, but Lt. Glover nonetheless ordered the ERT to immediately break into the apartment and conduct a "sweep" of the apartment to determine whether any other individuals remained in the apartment. Def. Glover's Statement of Material Facts as to which there is no Genuine Dispute ("Glover SMF") ¶ 27, ECF No. 79; see also Pl.'s Response to Defendants' Statement of Material Facts ¶ 38, ECF No. 86-1. After no other individuals were found in the apartment, Lt. Glover ordered the EOD to enter and search the plaintiff's apartment for explosives or other hazardous materials. Glover SMF ¶ 32; see also Glover Dep. at 10:1–22 ("I directed the members of the [ERT] Entry Team to enter and search for any human threats that remained or victims. And I also directed members of the [EOD] to enter and check for any hazardous materials that could remain on the scene and be dangerous to the public or anybody else in that block or area.").

Ofc. Mark Leone conducted the EOD search. Pl.'s SMF, Ex. 5, Deposition of Officer Mark Leone ("Leone Dep."), at 19:7, ECF No. 87-1. Ofc. Leone was informed of a "barricade situation in reference somebody [sic] had a military background and that they were requesting that we cleared [sic] the apartment for any hazardous materials." Id. at 18:13–17. Before he conducted the search, Ofc. Leone had been told that ERT had already been in the apartment and that they had searched to "make sure there that there wasn't any other people in the apartment." Id. at 20:9–12. Thus, Ofc. Leone knew when he entered the apartment that no other people were inside. Id. at 20:13–15. Ofc. Leone "didn't know one way or another" if there was probable cause to believe that there were hazardous materials in the apartment. Id. at 21:21–22; see also id. at 101:11–15; 109:11–13. Nonetheless, Ofc. Leone then "performed a search on the apartment to clear for any booby traps or explosive devices, [or] hazardous materials." Id. at 19:1–4. This search was performed despite the fact that he had not been told that any MPD officer had seen explosives or that anyone heard that explosives were in the apartment. Id. at 22:2–7; see also id. at 101:16–21. Instead, he was merely advised that "due to the [plaintiff's] military background [MPD] believed that the [sic] possibility of explosives could be in the apartment." Id. at 91:18–22. During Ofc. Leone's search, he "cut open every zipped bag, dumped onto the floor the contents of every box and drawer, broke into locked boxes under the bed and in the closet, emptied shelves into piles in each room, and broke into locked boxes containing Corrigan's three firearms," Corrigan , 841 F.3d at 1028 (citing Pl.'s Answers to Interrogs., ¶ 8; FAC ¶ 22), resulting in the seizure from "[i]nside the locked boxes, ... an assault rifle, two handguns, a military smoke grenade, a military "whistler" device, fireworks, and ammunition," id.

II. LEGAL STANDARD

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The moving p...