In a divided opinion, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit remanded the suit to the trial court for further proceedings. The trial judge had granted summary judgment in favor of the plaintiffs. Click here for the D.C. Circuit opinion.
The appeals court found that there remains material issues of fact in dispute. The plaintiffs and police tell different stories about how the plaintiffs ended up getting arrested in an alley the night of January 20, 2005, in the Columbia Heights neighborhood of Northwest Washington. Some in the crowd took to property destruction.
The plaintiffs, including Sarah Carr, said they were not involved in any acts of vandalism. The trial court judge found the arrests of the plaintiffs violated the Fourth Amendment because the police could not have had probable cause to arrest certain marchers.
At issue on appeal is the extent to which police need probable cause to arrest any individual in a crowd when there are people who are committing crimes. Senior Judge Laurence Silberman, writing for the majority, said that “police witnesses must only be able to form a reasonable belief that the entire crowd is acting as a unit and therefore all members of the crowd violated the law.
Silberman said the police do not first need to order the crowd to disperse to give non-offenders a chance to comply with the order. “If police have probable cause to believe that the group they are arresting is committing or has committed a crime, no more is necessary,” Silberman wrote. “Requiring a dispersal order in addition to the ordinary probable cause threshold would be particularly anomalous in a case like this in which officers have reason to believe that an entire crowd is engaged in or encouraging a riot.”
"Encouraging" is the key word. The opinion's summary of the facts shows the police observing that every act of vandalism (dragging newspaper racks into the street, breaking windows, etc.) was greeted by cheers from what appeared to be the whole crowd.