Patterson v. United States

Patterson v. United States

Opinion

 [*303]  MEMORANDUM OPINION

Plaintiff Anthony Michael Patterson ("Patterson" or "Plaintiff") filed the instant complaint alleging that his constitutional rights were violated when he was arrested for using profanity in a public park. He has brought suit against United States Park Police Sergeant Todd Reid and Officers Jennifer Lemke and Matthew Cooney (collectively, "individual defendants," "Defendants," or "the officers"), claiming that they violated his First and Fourth Amendment rights and requesting damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). (Compl., ECF No. 1, ¶¶ 21-26.) Patterson has also brought a false arrest claim against the United States of America  [**2] pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). (Id. ¶¶ 27-29.)

Presently before the Court is the individual defendants' motion to dismiss the claims against them. (Defs.' Mot. to Dismiss the Compl. ("Defs.' Mot."), ECF No. 8.) In that motion, the individual defendants argue that the first two counts of the complaint—the Bivens claims against the officers—must be dismissed for failure to state a claim upon which relief can be granted because the officers are entitled to qualified immunity.

Upon consideration of the arguments made in the parties' briefs and at the October 31, 2013, motion hearing, the Court DENIES the individual defendants' motion to dismiss. A separate order consistent with this opinion will follow.

I. BACKGROUND

A. Facts Alleged in the Complaint

Patterson's complaint alleges the following facts. Patterson is an Occupy D.C. protestor who was in McPherson Square park on January 8, 2012, when he saw three teenagers enter the park with signs supporting the Tea Party movement. (Compl. ¶ 8.) The complaint states that Patterson looked up at the sky when he saw the Tea Party supporters and said, "Ah, this fucking bullshit." (Id. ¶ 9.) According to Patterson, this  [**3] statement was "not directed at anyone in particular," and was made at a "normal conversational volume" in a non-aggressive manner that "merely indicated annoyance." (Id.) Patterson alleges that the Tea Party supporters were approximately seven feet away from him when he made the comment and did not acknowledge Patterson or his comment in any way. (Id.) The complaint states that the only people present in the park when Patterson made the statement, other than he and the three Tea Party supporters, were two other Occupy D.C. protesters and eight police officers. (Id. ¶ 8.)

Seconds after Patterson made the statement, several United States Park Police officers, including Sergeant Reid and Officers Lemke and Cooney, approached him. (Id. ¶ 10.) According to the complaint, Sergeant Reid told Patterson not to use profanity, and it was only after Sergeant Reid issued that rebuke that the Tea Party supporters appeared to notice Patterson. (Id.) In response to Sergeant Reid, Patterson turned towards the officers and said, "I can't say ***?" (Id. ¶ 11.) Sergeant Reid told Patterson that this was his "second warning." (Id. ¶ 12.) Patterson replied,  [*304]  "That's fucking bullshit." (Id. ¶ 13.) Sergeant  [**4] Reid then ordered Officers Lemke and Cooney to arrest Patterson for disorderly conduct, which they did. (Id. ¶¶ 14-15.) The complaint does not allege that the Tea Party supporters had any particular reaction to the conversation between Patterson and the officers. (See id. ¶¶ 11-15.)

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