Szymecki v. Houck , 353 F. App'x 852 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1094
DEBORAH SZYMECKI,
Plaintiff – Appellant,
and
CHESTER SZYMECKI,
Plaintiff,
v.
ASHLEY HOUCK,
Defendant – Appellee,
and
THE CITY OF NORFOLK,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:08-cv-00142-HCM-TEM)
Submitted: September 22, 2009 Decided: November 24, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stephen Merrill, GHENT LAW OFFICES, Norfolk, Virginia, for
Appellant. Edward A. Fiorella, Jr., FRAIM AND FIORELLA, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Deborah Szymecki appeals the district court’s order
granting summary judgment in favor of the Defendant based on
qualified immunity and dismissing Szymecki’s 42 U.S.C. § 1983(2006) complaint in which she alleged violations of her First
Amendment rights. Finding no error, we affirm.
This court reviews de novo a district court’s order
granting summary judgment. Providence Square Assocs., L.L.C. v.
G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). “Qualified
immunity protects government officials from civil damages in a
§ 1983 action insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Edwards v. City of
Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (internal quotation
marks and citation omitted). In determining whether a defendant
is entitled to qualified immunity, a court must decide
(1) whether there has been a violation of a constitutional right
and (2) whether that right was clearly established at the time
of the alleged misconduct. Walker v. Prince George’s County,
575 F.3d 426, 429 (4th Cir. 2009) (citing Pearson v. Callahan,
129 S. Ct. 808, 815-16 (2009)). However, “judges of the
district courts and the courts of appeals [are] permitted to
exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
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first in light of the circumstances in the particular case at
hand.” Pearson, 129 S. Ct. at 818.
In determining whether there has been a violation of a
constitutional right, the court should identify the right “at a
high level of particularity.” Edwards, 178 F.3d at 251(citations omitted). To decide whether that right was clearly
established, “courts in this circuit [ordinarily] need not look
beyond the decisions of the Supreme Court, this court of
appeals, and the highest court of the state in which the case
arose . . . .” Id. (internal quotation marks and citation
omitted). Accordingly, if the right is recognized in another
circuit and not in this circuit, the “official will ordinarily
retain the immunity defense.” Id. Moreover, the contours of
the constitutional right “must be sufficiently clear that a
reasonable official would understand what [she] is doing
violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(citation omitted).
Here, the district court concluded that Szymecki’s
asserted First Amendment right to record police activities on
public property was not clearly established in this circuit at
the time of the alleged conduct. We have thoroughly reviewed
the record and the relevant legal authorities and we agree.
Accordingly, we affirm the order of the district court.
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We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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