We filed this class action on behalf of about six dozen people who were falsely arrested in the Adams Morgan neighborhood on Inauguration Day 2005, when other people engaged in vandalism along the route of an impromptu protest march after leaving a “Counter-Inaugural Ball.” The police pepper-sprayed and arrested many people who were guilty only of walking or standing in the street. In 2008, the court granted us summary judgment as to liability, ruling that the undisputed fact that the police could not identify which of the people it arrested had actually rioted made all the arrests unconstitutional. The court ordered the District to expunge the class members’ arrest records, and the District appealed that order.
In 2009, the court of appeals reversed, concluding that there were material facts in dispute regarding whether the police lacked probable cause as to each arrested person. More distressingly, the court further held that police can lawfully arrest an entire group for the unlawful conduct of some members when a crowd is “acting as a unit.” Judge Griffith dissented on that point, writing, “As Supreme Court precedent affirms, the Fourth Amendment requires an individualized showing of probable cause before arrest.”
Our petition for rehearing en banc (that is, by the full appellate court) was denied. Two judges concurred in the denial to suggest that a person might be guilty of rioting even if she was only aware that a march had “turned violent, . . . yet continued to march” — an interpretation that Judge Griffith warned in dissent would “chill lawful political expression.”
On remand, we negotiated, and the court approved, a settlement requiring the District to pay $250,000 to class members and for attorneys’ fees, to expunge everyone’s arrest record, and to “acknowledge that while it believes the group as a whole engaged in unlawful conduct, the District cannot link any individual Class Member to any specific acts of property destruction or any similar illegal acts.” Settlement checks were distributed in October 2011.
