Appeal from the United States District Court for the District of Columbia (No. 01cv00759)
Before: Henderson and Roberts, Circuit Judges, and
Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Roberts, Circuit Judge
Argued September 17, 2004
No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later -- all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.
It was the start of another school year and the Washington Metropolitan Area Transit Authority (WMATA) was once again getting complaints about bad behavior by students using the Tenleytown/American University Metrorail station. In response WMATA embarked on a week-long undercover operation to enforce a "zero-tolerance" policy with respect to violations of certain ordinances, including one that makes it unlawful for any person to eat or drink in a Metrorail station. D.C. CODE § 35-251(b) (2001). "Zero tolerance" had more fateful consequences for children than for adults. Adults who violate § 35-251(b) typically receive a citation subjecting them to a fine of $10 to $50. Id. § 35-253. District of Columbia law, however, does not provide for the issuance of citations for non-traffic offenses to those under eighteen years of age. Instead, a minor who has committed what an officer has reasonable grounds to believe is a "delinquent act" "may be taken into custody." Id. § 16-2309(a)(2). Committing an offense under District of Columbia law, such as eating in a Metrorail station, constitutes a "delinquent act." Id. § 16-2301(7). The upshot of all this is that zero-tolerance enforcement of § 35-251(b) entailed the arrest of every offending minor but not every offending adult.
The undercover operation was in effect on October 23, 2000, when twelve-year-old Ansche Hedgepeth and a classmate entered the Tenleytown/AU station on their way home from school. Ansche had stopped at a fast-food restaurant on the way and ordered a bag of french fries -- to go. While waiting for her companion to purchase a fare-card, Ansche removed and ate a french fry from the take-out bag she was holding. After proceeding through the fare-gate, Ansche was stopped by a plainclothed Metro Transit Police officer, who identified himself and informed her that he was arresting her for eating in the Metrorail station. The officer then handcuffed Ansche behind her back while another officer searched her and her backpack. Pursuant to established procedure, her shoelaces were removed. Upset and crying, Ansche was transported to the District of Columbia's Juvenile Processing Center some distance away, where she was fingerprinted and processed before being released into the custody of her mother three hours later.
The no-citation policy was not, it turned out, carved in stone. The negative publicity surrounding Ansche's arrest prompted WMATA to adopt a new policy effective January 31, 2001, allowing WMATA officers to issue citations to juveniles violating § 35-251(b). See Deposition of Capt. Michael Taborn at 28, 55. Zero tolerance was also not a policy for the ages. Effective May 8, 2001, WMATA adopted a new Written Warning Notice Program, under which juveniles eating in the Metro are neither arrested nor issued citations, but instead given written warnings, with a letter notifying their parents and school. Only after the third infraction over the course of a year may a juvenile be formally prosecuted. WMATA Written Notice Memorandum at 1-4.
On April 9, 2001, Ansche's mother Tracey Hedgepeth brought this action as Ansche's next friend in the United States District Court for the District of Columbia. The complaint was filed under 42 U.S.C. § 1983 and named WMATA, its General Manager, the arresting officer, and the District of Columbia as defendants. It alleged that Ansche's arrest violated the equal protection component of the Fifth Amendment, because adults eating in the Metro were not arrested. The complaint also alleged that the arrest was an unreasonable seizure under the Fourth Amendment. The complaint sought declaratory and injunctive relief against the enforcement policies leading to Ansche's arrest, and expungement of Ansche's arrest record.*fn1
On cross-motions for summary judgment, the district court ruled in favor of the defendants. Hedgepeth v. Washington Metro Area Transit, 284 F. Supp. 2d 145, 149 (D.D.C. 2003). Addressing the equal protection claim, the court applied "the highly deferential rational basis test," id. at 156, because it found that age is not a suspect class, id. at 152-53, and that there is no fundamental right to be free from physical restraint when there is probable cause for arrest. Id. at 155. The court then ruled that both the District's no-citation policy for minors and WMATA's zero-tolerance policy survived rational basis review. Id. at 156-58. The district court next rejected Ansche's Fourth Amendment claim, relying on Atwater v. City of Lago Vista, 532 U.S. 318 (2001), for the proposition that " `[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.' " 284 F. Supp. 2d at 160 (quoting Atwater, 532 U.S. at 354). Given that it was undisputed that Ansche had committed the offense in the presence of the arresting officer, the district court concluded it was "without discretion or authority to reject the standards enunciated" in Atwater, despite the minor nature of the offense and the harshness of the response. 284 F. Supp. 2d at 160. Hedgepeth now appeals.
We are confronted at the outset with two jurisdictional objections. First, Ansche's complaint seeks only prospective relief,*fn2 and -- even in the absence of WMATA's change in policy -- we are not willing to indulge the assumption that she will violate D.C. CODE § 35-251(b) in the future and thereby again be subject to the policies about which she complains. This suggests the lack of an ongoing case or controversy under Article III. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (plaintiff subject to illegal arrest procedure lacked standing to seek prospective relief because he made no showing that he was likely to be arrested and subjected to illegal procedure again); O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief").
Second, WMATA argues that its new policy for juvenile offenders renders the case moot. There is no need for the court to assess the legality of the policy to which Ansche was subjected, WMATA argues, because that policy -- a combination of a no-citation rule for minors and zero-tolerance enforcement -- is no longer in effect.
The answer to both objections is found in the precise relief sought by Ansche. In the complaint, Ansche sought not only declaratory and injunctive relief with respect to the nocitation and zero-tolerance policies, but also the expungement of her arrest record. Second Am. Compl. ¶ 32(c). She clarified in her summary judgment papers that this last request included a judicial declaration deeming her allegedly unlawful arrest a "detention." See Memorandum in Support of Motion for Summary Judgment (Feb. 21, 2003) at 23. Such an order would relieve Ansche of the burden of having to respond affirmatively to the familiar question, "Ever been arrested?" on application, employment, and security forms. This court has approved such relief in the past. See Carter v. District of Columbia, 795 F.2d 116, 136 (D.C. Cir. 1986); Tatum v. Morton, 562 F.2d 1279, 1285 n.17 (D.C. Cir. 1977). Ansche accordingly has Article III standing, and her effort to secure such relief has in no way been affected by WMATA's policy change.*fn3
This action is justiciable with respect to both the District of Columbia and WMATA. Although each tries to blame the other, Ansche alleges that neither defendant's policies alone would suffice to cause the alleged violation: but for WMATA's zero-tolerance policy, there likely would have been no enforcement of § 35-251(b) against Ansche; but for the fact that District of Columbia law did not authorize citations to minors, the zero-tolerance enforcement of § 35-251(b) would not have required Ansche's arrest.*fn4 Cf. Machesney v. Larry Bruni, 905 F. Supp. 1122, 1134 (D.D.C. 1995) ("ordinarily when two ...