Lowe v. Spears , 258 F. App'x 568 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1497
JERRY A. LOWE,
Plaintiff - Appellee,
versus
RANDY SPEARS, in his individual and official
capacity as a police officer for the City of
Huntington; CITY OF HUNTINGTON, WEST VIRGINIA,
a municipal corporation,
Defendants - Appellants.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:06-cv-00647)
Submitted: December 12, 2007 Decided: December 20, 2007
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John R. Teare, BOWLES RICE MCDAVID GRAFF & LOVE, LLP, Charleston,
West Virginia, for Appellants. Jonathan L. Matthews, Jason E.
Huber, FORMAN & HUBER, L.C., Charleston, West Virginia; Richard E.
Holtzapfel, HOLTZAPFEL LAW OFFICES, Hurricane, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Spears and the City of Huntington (“the City”)
appeal the district court’s order denying in part and granting in
part the motion to dismiss Jerry Lowe’s 42 U.S.C. § 1983 (2000)
complaint. For the reasons that follow, we affirm.
In ruling on a motion to dismiss, a court must view the
claims in the light most favorable to the non-moving party, and all
allegations are accepted as true. Republican Party of North
Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Lowe
alleged in his complaint that he parked his truck on the sidewalk
in front of his apartment building one day in order to unload.
Officer Spears arrived and began issuing a citation for illegal
parking. Lowe informed Spears he was handicapped and asked him not
to issue a citation if Lowe moved his truck immediately. Spears
expressed doubt as to Lowe’s handicap, and Lowe pointed to his
handicap parking permit hanging from his rearview mirror. When
Lowe attempted to explain he had merely parked on the sidewalk
temporarily while he unloaded his supplies, Spears ordered Lowe to
go inside the building or he would arrest him.
Lowe stepped into the building and warned his employees
that a police officer was issuing parking tickets and they should
move their vehicles to avoid receiving any tickets. Spears said he
“was tired of [Lowe’s] mouth and that he was going to jail.”
Spears grabbed Lowe by the arm and attempted to pull Lowe out of
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the building. Lowe’s father separated the two men. Lowe called
911. Additional police arrived and advised Spears to leave Lowe
alone. Lowe was never charged with any crime stemming from this
encounter.
Lowe filed claims under 42 U.S.C. § 1983 (2000) for false
arrest, excessive force, and unlawful retaliation, and state law
claims of battery, false arrest, assault, outrage, abuse of
process, negligence, and negligent hiring. He additionally alleged
municipal and state liability due to the City’s failure to
adequately train, supervise and discipline its police officers.
Spears and the City moved to dismiss the complaint. The
district court granted the motions in part and denied in part. The
district court dismissed the claim against Spears in his official
capacity, the abuse of process claim, and the prayer for punitive
damages because they are expressly precluded by West Virginia law.
The district court denied the motion as to the other
claims, concluding that Spears was not protected by qualified
immunity under the facts alleged, because Spears seized Lowe,
thereby arresting him, for exercising his freedom of speech, not
for parking illegally, and “no reasonable officer could have
believed that probable cause existed to arrest Lowe for exercising
his First Amendment right to question and remonstrate to Spears.”
Further, the district court concluded that Lowe placed Spears on
sufficient notice as to his state law claim of outrage, the City as
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to his claim of negligent hiring, and that he sufficiently alleged
facts supporting his claim that the City inadequately trained its
police.
Spears and the City appealed.1 The numerous arguments
they raise on appeal all depend on the premise that the complaint
establishes Spears had probable cause to arrest Lowe. The
appellants contend the district court erred in concluding Spears
did not have probable cause to arrest Lowe because the district
court improperly focused on Spears’s subjective intent in arresting
Lowe rather than applying an objective test. The appellants argue
Spears had ample probable cause to arrest Lowe for illegal parking
under West Virginia Code § 17C-13-6 and arguably had probable cause
for arresting him for obstructing a law enforcement officer under
West Virginia Code § 61-5-17(a).2
When reviewing a motion to dismiss, the district court
must accept the allegations in the complaint as true and construe
1
We note that although interlocutory orders ordinarily are not
appealable, orders rejecting a defendant’s claim of qualified
immunity are appealable, Mitchell v. Forsyth, 472 U.S. 511, 530
(1985), provided the denial rests on a purely legal determination
that the facts establish a violation of clearly established law.
Johnson v. Jones, 515 U.S. 304, 316-17 (1995). The district court
order is appealable because the appellants argue that even
accepting all of Lowe’s factual allegations as true, Spears did not
violate the law by arresting him.
2
West Virginia law authorizes police officers to arrest an
individual for any criminal law violation committed in their
presence, regardless of the severity of the crime. W. Va. Code
Ann. § 62-10-9 (2005); see also Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001) (upholding a similar Texas statute).
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those allegations and the reasonable inferences derived therefrom
in the light most favorable to the plaintiff. See Chisolm v.
TranSouth Fin. Corp., 95 F.3d 331, 334 (4th Cir. 1996). Viewing
the factual allegations in this light, Spears arrested Lowe for
exercising his freedom of speech, not for the crimes of illegal
parking or obstructing a law enforcement officer. Thus, the
question for the district court to address was whether Spears had
probable cause to arrest Lowe for exercising his First Amendment
rights. Arresting a person solely based on speech that questions
or opposes police action violates the First Amendment. City of
Houston v. Hill, 482 U.S. 451, 462-63 (1987). Therefore, the facts
as alleged in the complaint supported the claim of arrest without
probable cause, and the district court did not err by denying in
part the motion to dismiss.
Accordingly, we affirm the decision of the district
court. 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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