[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-6673
D. C. Docket No. CV-94-A-1224-S
RONALD A. REDD, THOMAS A. ANDERSON,
Plaintiffs-Appellees,
versus
CITY OF ENTERPRISE, a municipality organized
under the laws of the State of Alabama,
ANTHONY NELMS, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Middle District of Alabama
(May 13, 1998)
Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior District Judge.
____________________________________________________________
* Honorable Tom Stagg, Senior U.S. District Judge for the Western District of Louisiana, sitting
by designation.
TJOFLAT, Circuit Judge:
This appeal arises out of the arrest of Thomas A. Anderson by police officers Anthony
Nelms, Robert Crawford, and Robert Braun, of the city of Enterprise, Alabama. Anderson and
his colleague Robert A. Redd filed a complaint in the district court under
42 U.S.C. § 1983
(1994) asserting several constitutional claims and a pendent state law claim. The complaint
sought damages against each defendant. The police officers severally moved the district court
for summary judgment on Anderson's and Redd's constitutional claims on the ground that they
were entitled to qualified immunity. The district court denied qualified immunity and therefore
denied the officers’ motions for summary judgment insofar as the motions relied upon qualified
immunity grounds. The officers now appeal. We conclude that the officers are entitled to
qualified immunity on the Fourth Amendment claims of plaintiff Anderson, and reverse the
denial of summary judgment on that claim. We also conclude that the officers are entitled to
qualified immunity on the plaintiffs’ First Amendment claims and therefore reverse the district
court’s denial of summary judgment on those claims as well.
We have jurisdiction to consider an interlocutory appeal of an order denying a motion for
summary judgment on qualified immunity grounds. See Johnson v. Jones,
515 U.S. 304, 310-14,
115 S.Ct. 2151, 2155-56,
132 L.Ed.2d 238 (1995). We review such orders de novo, and resolve
all issues of material fact in favor of the plaintiff. See Cottrell v. Caldwell,
85 F.3d 1480, 1486
& n.3 (11th Cir. 1996). We then answer the legal question of whether the defendants are entitled
to qualified immunity under that version of the facts.
Id. Accordingly, in part I we state the
facts of the case in the light most favorable to Anderson and Redd. In part II, we explain why,
on that version of the facts, the defendant officers are entitled to qualified immunity against, and
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therefore to summary judgment on, plaintiff Anderson’s Fourth Amendment claim and on both
plaintiffs’ First Amendment claims. We therefore reverse the district court’s denial of summary
judgment.
I.
Anderson and Redd, the plaintiffs in this case, are traveling ministers. On March 24,
1994 (the Thursday before Good Friday), Anderson and Redd arrived at the corner of West
College and South Main Streets in Enterprise--the busiest intersection in town--and set about
preaching to passers-by. The two men took turns preaching on the sidewalk, speaking loudly to
pedestrians and to drivers passing through the busy intersection. Anderson admits that he was
speaking loudly enough to be heard across the street, but not so loudly as to be heard over the
noise of passing trucks. Anderson held a Bible in his hands, and he would wave it as he
preached.
No one approached Anderson to complain about his preaching, but some pedestrians did
complain to a passing police officer. The officer relayed the citizen’s complaint to the
dispatcher, and Officer Anthony Nelms was dispatched to address the matter. While Anderson
preached, Redd went over to talk to Nelms, who had exited his patrol car. Redd identified
himself and Anderson to Nelms and explained that they were ministers who were preaching.
Nelms told Redd that there had been a complaint that the two men had been stepping into the
roadway while preaching; Redd stated that he and Anderson had not done so. Anderson did not
hear any of the colloquy between Redd and Nelms and continued to preach. Nelms observed
Anderson for the next five minutes; Crawford then arrived, and he and Nelms observed
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Anderson for several more minutes. Crawford informed Redd that he and Anderson would have
to stop preaching. Redd asked to speak with Crawford’s superior, Braun, in person, and
Crawford tried to call Braun. Braun called back a few minutes later and told Crawford that he
would be unable to come to the scene and that Crawford should use his own discretion in
deciding whether to arrest either or both of the ministers.
At this point, Anderson ceased preaching and went over to ask what was going on.
According to the ministers’ testimony, Crawford then told Anderson and Redd that they would
have to stop preaching or they would be arrested. Anderson asked if they were standing on a
public sidewalk. Crawford answered that they were. Anderson asked if the officers intended to
arrest him for preaching on a public sidewalk. Crawford answered in the affirmative. Anderson
walked back to the street corner and recommenced preaching loudly. Nelms then arrested
Anderson. Redd was not arrested or charged.
While in jail, Anderson told officers that he believed his arrest to have been in violation
of the Constitution and that he would sue the city if the matter could not be resolved to his
satisfaction. Upon hearing of Anderson’s statements, defendant-appellant Michael Lolley, the
Police Chief of Enterprise, ran a criminal history check on Anderson.1 The background check
revealed that one Thomas A. Anderson was wanted on a felony warrant in Beaufort, South
Carolina for check fraud. The Beaufort County Sheriff’s Department supplied a description of
the man they wanted, and a social security number; both matched the intake information supplied
1
Police Chief Lolley is listed as an appellant. The district court, however, dismissed all
claims against Lolley, in both his individual and official capacities, arising out of the March 24
arrest. As explained infra, this appeal only addresses the officers’ requests for qualified
immunity from claims arising out of the March 24 arrest. We therefore conclude that Lolley has
no interest in this appeal.
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to the EPD by the appellee Anderson. The Beaufort Sheriff’s Department requested that the
EPD arrest Anderson again for extradition on the check fraud warrant. A warrant was issued in
Enterprise and Anderson was arrested again on the night of April 8, 1994. Anderson insisted
that the Beaufort warrant was for his father, not for him. Several days later, on April 11, the
Beaufort Sheriff’s Department informed the EPD that this was in fact true. The case against
appellee Anderson on the second warrant was immediately dropped and he was promptly
released.
Anderson and Redd then filed suit in the district court. The complaint asserted several
claims. Count One of the complaint brought claims against the officers in their individual and
official capacities, asserting that (in accordance with the policy of the City of Enterprise) the
police officers violated Anderson’s rights under the First and Fourth Amendments to the
Constitution2 by arresting him for disorderly conduct without probable cause, and that the arrest
violated Redd’s First Amendment rights by “chilling” his speech. Counts Two and Three
alleged that the EPD’s investigation and second arrest of Anderson, pursuant to the South
Carolina warrant, constituted a “malicious prosecution” that violated the Fourth Amendment.
Count Four asserted a tort claim for malicious prosecution under Alabama state law.
The police officers moved for summary judgment on the ground that they were entitled to
qualified immunity from suit on the constitutional claims. The district court concluded that the
officers were not entitled to qualified immunity on the plaintiffs’ First and Fourth Amendment
2
The complaint also asserted various claims under the Fifth, Sixth, and Eighth Amendments.
The district granted summary judgment to the defendants on these claims. Similarly, the
complaint asserted claims pursuant to
42 U.S.C. §§ 1981, 1985, 1986, and 1988, in addition to
the claims brought pursuant to section 1983. The district court granted summary judgment on
these claims as well.
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claims arising out of the March 24 street-corner arrest, and denied summary judgment on those
claims. The district court dismissed the plaintiffs’ Fourth Amendment claims arising out of the
April 8 arrest, however, on the ground that the second arrest was effected pursuant to the facially
valid warrant from South Carolina, and that relief under section 1983 was therefore unavailable.3
This left for trial:
1) Anderson’s and Redd’s section 1983 First Amendment claims;
2) Anderson’s section 1983 Fourth Amendment claim arising out of the March 24 arrest;
and
3) Anderson’s state law claim for malicious prosecution.
The defendants now appeal the district court’s denial of qualified immunity, and therefore of
summary judgment, on the First Amendment and Fourth Amendment claims arising out of the
March 24 arrest.
II.
“That qualified immunity protects government actors is the usual rule; only in
exceptional cases will government actors have no shield against claims made against them in
their individual capacities.” Lassiter v. Alabama A & M Univ., Bd. of Trustees,
28 F.3d 1146,
1149 (11th Cir. 1994) (en banc) (citations and emphasis omitted). A public official is entitled to
qualified immunity from a section 1983 damages action if his actions did not violate clearly
established law. See Thornton v. City of Macon,
132 F.3d 1395, 1399 (11th Cir. 1997). Taking
the facts as asserted by the plaintiffs, we conclude that the officers’ actions in this case did not
3
No appeal is taken from this holding.
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clearly violate either the First Amendment or the Fourth Amendment. We therefore conclude
that the officers are entitled to qualified immunity on plaintiff Anderson’s Fourth Amendment
claim and on both plaintiffs’ First Amendment claims.
A.
We first address plaintiff Anderson’s false arrest claim against the officers under the
Fourth Amendment. It is clearly established that an arrest made without probable cause violates
the Fourth Amendment. See Von Stein v. Brescher,
904 F.2d 572, 579 (11th Cir. 1990). An
officer is entitled to qualified immunity, however, where the officer had “arguable probable
cause,” that is, where “reasonable officers in the same circumstances and possessing the same
knowledge as the Defendants could have believed that probable cause existed to arrest” the
plaintiffs.
Id. (internal quotation marks and citations omitted).
Taking the facts of the case in the light most favorable to the plaintiffs, we conclude that
the EPD officers had arguable probable cause to arrest Anderson for disorderly conduct on
March 24th, that is, that the officers could reasonably have believed that Anderson’s actions on
that date violated Alabama’s disorderly conduct statute.4 Anderson admittedly was attempting to
4
That statute provides:
§ 13A-11-7 Disorderly conduct.
(a) A person commits the crime of disorderly conduct if, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he:
(1) Engages in fighting or in violent tumultuous or threatening behavior; or
(2) Makes unreasonable noise; or
(3) In a public place uses abusive or obscene language or makes an obscene
gesture; or
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be heard over the traffic at the intersection, and admits that he succeeded in speaking loudly
enough to be heard across the street. The uncontroverted testimony of Officer Jimmy Hutto (not
a party to this litigation) establishes that passers-by complained of the loudness of Anderson’s
speech. On these facts, we cannot say that the officers could not reasonably have believed
Anderson’s conduct to be in violation of the disorderly conduct statute. The officers are
therefore entitled to qualified immunity from suit on Anderson’s false arrest claim. We thus
conclude that the district court erred in denying summary judgment to the defendants on that
claim.
B.
We next address the defendants’ request for qualified immunity from the plaintiffs’ First
Amendment claims. At the time of Anderson’s arrest, the plaintiffs were clearly engaging in
protected speech in a traditional public forum. See Heffron v. International Soc. for Krishna
Consciousness, Inc.,
452 U.S. 640, 647,
101 S.Ct. 2559, 2563,
101 S.Ct. 2559 (1981) (stating
that oral and written dissemination of religious views and doctrines is protected by the First
(4) Without lawful authority, disturbs any lawful assembly or meeting of
persons; or
(5) Obstructs vehicular or pedestrian traffic, or a transportation facility; or
(6) Congregates with other person in a public place and refuses to comply with
a lawful order of the police to disperse.
Ala. Code § 13A-11-7 (1994). The officers assert that they had probable cause to believe that
Anderson was “mak[ing] unreasonable noise.” The district court noted that there remained a
factual dispute as to precisely how loudly Anderson was speaking. Anderson admits, however,
that he was speaking at least loudly enough to be heard across a busy intersection. We believe
that this admission is sufficient to establish that the officers had arguable probable cause to arrest
Anderson.
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Amendment); Perry Education Ass’n v. Perry Local Educators' Ass’n,
460 U.S. 37, 45,
103 S.Ct.
948, 954-55,
74 L.Ed.2d 794 (1983) (holding that traditional public fora include public streets).
“In these quintessential public for[a], the government may not prohibit all communicative
activity.”
Id. at 45,
103 S.Ct. at 955. Even in traditional public fora, however, “the state may
‘enforce regulations of the time, place, and manner of expression which are content-neutral, are
narrowly tailored to serve a significant government interest, and leave open ample alternative
channels for communication.’" Crowder v. Housing Auth. of Atlanta,
990 F.2d 586, 590 (11th
Cir. 1993) (quoting Perry,
460 U.S. at 45-46,
103 S.Ct. at 954-955).
As the district court held, the arrest of Anderson was content-neutral; nothing in the
record indicates that the plaintiffs were selectively arrested for engaging in religious speech
while non-religious speakers went unmolested. Moreover, the Alabama disorderly conduct
statute is presumptively valid. The plaintiffs do not attack the disorderly conduct statute as
unconstitutional, and we note that the Alabama disorderly conduct statute has recently been held
constitutional by the Alabama courts. See Sterling v. State,
701 So.2d 71 (Ala. Crim. App.
1997) (holding that Alabama’s disorderly conduct statute is not unconstitutionally vague or
overbroad).
Because we hold that the officers had arguable probable cause to arrest Anderson for
disorderly conduct, we must hold that the officers are also entitled to qualified immunity from
the plaintiffs’ First Amendment claims. When a police officer has probable cause to believe that
a person is committing a particular public offense, he is justified in arresting that person, even if
the offender may be speaking at the time that he is arrested. See United States v. Rubio, as
modified,
727 F.2d 786, 791 (9th Cir. 1984) (“We strongly disagree with any inference that
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criminal investigation is somehow prohibited when it interferes with . . . First Amendment
interests. When activity protected by the First Amendment becomes the subject of a criminal
investigation, the protections afforded by the Fourth Amendment come into play."); see also
Zurcher v. Stanford Daily,
436 U.S. 547, 565,
98 S.Ct. 1970, 1981-82,
56 L.Ed.2d 525 (1978)
(holding that Fourth Amendment requirements regarding search and seizure pursuant to warrant
are sufficient to protect First Amendment interests that may be implicated in the search and
seizure). Likewise, when an officer has arguable probable cause to believe that a person is
committing a particular public offense, he is entitled to qualified immunity from suit, even if the
offender may be speaking at the time that he is arrested. We therefore conclude that the officers
are entitled to qualified immunity from the plaintiffs’ First Amendment claims, and that the
district court erred in denying summary judgment to the defendants on those claims.
CONCLUSION
For the foregoing reasons, we REVERSE the district court’s denial of summary judgment
on both plaintiff Anderson’s Fourth Amendment false arrest claim and on the plaintiffs’ First
Amendment claims.
SO ORDERED.
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