Ronald Duhe v. Little Rock Arkansas, City of , 902 F.3d 858 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2012
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Ronald Duhe, et al.
lllllllllllllllllllllPlaintiffs - Appellants
v.
City of Little Rock, Arkansas, et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: April 12, 2018
Filed: September 5, 2018
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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Ronald Duhe and Mark Holick were arrested for disorderly conduct during an
anti-abortion demonstration at the Little Rock Family Planning Services Clinic (“the
Clinic”) in Little Rock, Arkansas. Little Rock police took Duhe and Holick to the
Pulaski County Regional Detention Facility (“the Jail”), where they were processed
and released the same day. After a bench trial in state court, the disorderly conduct
charges were dismissed. Duhe, Holick, and Spirit One Christian Ministries, Inc.
(“Spirit One”), a nonprofit corporation founded by Holick as a church in 1991,
brought this § 1983 suit against the City of Little Rock, Little Rock Police Lieutenant
Sidney Allen, and Pulaski County. Plaintiffs allege that the arrests were without
probable cause and violated the First Amendment; the Arkansas disorderly conduct
statute, Ark. Code Ann. § 5-71-207(a), and a Little Rock permit ordinance, Little
Rock Rev. Code § 32-551, are unconstitutional on their face and as applied; and the
County unconstitutionally detained Duhe and Holick at the Jail. The district court1
granted summary judgment dismissing all claims on the merits and granting Allen
qualified immunity from individual-capacity damage claims. Plaintiffs appeal.
Reviewing the grant of summary judgment de novo, we affirm.
I. Fourth Amendment Arrest Claims.
Qualified immunity shields government agents from personal liability for civil
damages if “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “The entitlement is an immunity from suit rather
than a mere defense to liability . . . it is effectively lost if a case is erroneously
permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in
original). Accordingly, it is appropriate to begin with the one claim in which plaintiffs
seek damages from a government agent acting in his individual capacity, the claim
that Lt. Allen violated Duhe and Holick’s First and Fourth Amendment rights when
he arrested them at the Clinic for violating the Arkansas disorderly conduct statute.
Duhe and Holick assert that Allen violated their Fourth Amendment rights
because he lacked probable cause to arrest. “If an officer has probable cause to
believe that an individual has committed even a very minor criminal offense in his
1
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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presence, he may, without violating the Fourth Amendment, arrest the offender.”
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). “[A]n officer is entitled to
qualified immunity if there is at least arguable probable cause” to arrest. Gilmore v.
City of Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016) (quotation omitted).
In reviewing the grant of summary judgment, we view the facts in the light most
favorable to Duhe and Holick, the non-moving parties. In September 2012, Holick
organized a multi-day outreach in Little Rock, which involved demonstrations against
abortion in front of a Little Rock high school and the Clinic. In anticipation, the Little
Rock Police Department implemented an Operational Order that placed Lt. Allen in
charge of a Special Response Unit to monitor the demonstrations.
On the first day, September 13, Holick and a group demonstrated at the high
school and in front of the Clinic without incident. Early in the morning of September
14, a small number of demonstrators met in front of the Clinic. Duhe, arriving in
Little Rock several hours earlier, joined the group. During the demonstration, both
Duhe and Holick spoke through a microphone with an amplifier. Lt. Allen testified
that he arrived at the Clinic after receiving a radio call from Special Response Unit
member Ronald Morgan. According to Allen, Morgan advised that police on the
scene received complaints about noise and that demonstrators were obstructing traffic
at the Clinic.
One of the complainants was Gayle Teague, an employee of a vision center
located near the Clinic. Teague testified that she could hear the demonstration in her
clinic and told officers the noise was disrupting her business. She noted that protests
were common in front of the Clinic, but this was the only time she could recall hearing
sound from a demonstration in her office. Lori Williams, the Clinic’s Clinical
Director, complained to officers the sound was too loud for the Clinic to function.
She testified that she could hear sound from the demonstration in a private counseling
room while she was attempting to speak with a patient. She said that some patients
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canceled appointments in response to the demonstration, and that she saw
demonstrators blocking the Clinic’s driveway.
Allen averred that as he approached the site of the protest, he could hear
someone speaking on an amplifier from about a city block away. On the scene, an
officer told Allen that Holick had been blocking the driveway. Allen saw Duhe and
Holick speaking through the amplifier and saw Holick walking slowly across the
driveway, stopping vehicles. Allen testified that he directed officers to arrest Duhe
and Holick for disorderly conduct for their use of the microphone and for Holick’s
obstruction of traffic.
“Probable cause exists when the totality of circumstances demonstrates that a
prudent person would believe that the arrestee has committed or was committing a
crime.” Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). Probable cause is a “fluid
concept.” Illinois v. Gates, 462 U.S. 213, 232 (1983). “The arresting officer himself
need not possess all of the available information”; probable cause is assessed by the
collective knowledge of the relevant officers and available objective facts. United
States v. Stratton, 453 F.2d 36, 37 (8th Cir.), cert. denied, 405 U.S. 1069 (1972).
Whether probable cause existed at the time of the arrest is a question of law for the
court. Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010).
As relevant here, the Arkansas disorderly conduct statute provides:
(a) A person commits the offense of disorderly conduct if, with the
purpose to cause public inconvenience, annoyance, or alarm or recklessly
creating a risk of public inconvenience, annoyance, or alarm, he or she:
* * * * *
(2) Makes unreasonable or excessive noise . . . [or]
(5) Obstructs vehicular or pedestrian traffic . . . .
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Ark. Code Ann. § 5-71-207(a)(2), (5). The Code provides that a person acts purposely
“when it is the person’s conscious object to engage in conduct of that nature or to
cause the result.” § 5-2-202(1). A person acts recklessly “when [he] consciously
disregards a substantial and unjustifiable risk that . . . [a] result will occur,” when
disregarding the risk “constitutes a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.” § 5-2-202(3).
We agree with the district court that Lt. Allen had probable cause to arrest Duhe
and Holick for violating the Arkansas disorderly conduct statute. He personally heard
the amplified noise from a considerable distance and witnessed Holick obstructing
traffic entering the Clinic’s driveway. He was entitled to rely on the statements of
Teague and Williams to other officers that the noise was disrupting their business
activities and demonstrators were obstructing traffic. That Duhe and Holick’s
disorderly conduct charges were subsequently dismissed is irrelevant to the probable
cause inquiry. Joseph v. Allen, 712 F.3d 1222, 1226 (8th Cir. 2013).
Duhe and Holick argue that Allen lacked probable cause because he did not
conduct a reasonably thorough investigation before ordering the arrest, and he did not
take a decibel reading or check the sound volume inside the Clinic or the vision
center. They argue investigation would have revealed that demonstrators at the scene
did not believe traffic was obstructed, the noise was excessive, or that Duhe and
Holick intended to create public inconvenience, annoyance, or alarm. Absent exigent
circumstances, officers “have a duty to conduct a reasonably thorough investigation
prior to arresting a suspect.” Kuehl, 173 F.3d at 650. But they need not conduct a
“mini-trial” prior to making an arrest. Gibson v. Cook, 764 F.3d 810, 814 (8th Cir.
2014). We conclude Allen conducted a reasonable investigation. He did not disregard
“plainly exculpatory evidence,” and given what he personally observed and was told,
“minimal further investigation” such as interviewing Duhe and Holick’s fellow
protesters would not have exonerated them. Kuehl, 173 F.3d at 650-51.
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Lt. Allen did not violate the Fourth Amendment because he had probable cause
to arrest Duhe and Holick for violating the disorderly conduct statute in his presence.
This conclusion forecloses plaintiffs’ Fourth Amendment claims of municipal or
supervisor liability against the City of Little Rock. See Brossart v. Janke, 859 F.3d
616, 627-28 (8th Cir. 2017), cert. denied, 138 S. Ct. 2025 (2018).2 In addition, Lt.
Allen is clearly entitled to qualified immunity. As the Supreme Court of Arkansas has
enforced the disorderly conduct statute consistent with its plain meaning, see Johnson
v. State, 37 S.W.3d 191, 195 (Ark. 2001), Allen had probable cause to believe Duhe
and Holick were violating a valid Arkansas statute and therefore did not violate their
clearly established Fourth Amendment rights. See Reichle v. Howards, 566 U.S. 658,
664 (2012).
II. Arkansas Disorderly Conduct Statute Claims.
The plaintiffs appeal the denial of their request for declaratory relief in the form
of an order invalidating the Arkansas disorderly conduct statute, which they claim is
vague on its face and as applied and is overbroad. We agree with the district court
that Duhe and Holick have standing to challenge the statute -- they were arrested for
2
Duhe and Holick also argue they are entitled to damages because defendants
violated their First Amendment rights in arresting them for violating an
unconstitutional disorderly conduct statute. Whether municipal defendants may be
liable under § 1983 for enforcing a state criminal statute is a thorny issue. See Slaven
v. Engstrom, 710 F.3d 772, 781 n.4 (8th Cir. 2013). As we conclude in the next part
of this opinion that the statute is not unconstitutional, we need not take up this issue.
The district court properly dismissed the First Amendment arrest claims. There is not
a scintilla of evidence that the plaintiffs were arrested because of the content of their
speech, rather than the manner in which they demonstrated. See R.A.V. v. City of St.
Paul, 505 U.S. 377, 382 (1992).
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violating it and claim their First Amendment rights are chilled by the possibility they
will be arrested again.3
A. Vagueness. A state statute is unconstitutionally vague if it “fails to provide
people of ordinary intelligence a reasonable opportunity to understand what conduct
it prohibits” or it “encourages arbitrary and discriminatory enforcement.” Hill v.
Colorado, 530 U.S. 703, 732 (2000). “Condemned to the use of words, we can never
expect mathematical certainty from our language,” even in the context of the First
Amendment’s protection of freedom of speech, where vagueness concerns are
especially pressing. Grayned v. City of Rockford, 408 U.S. 104, 109-110 (1972). Nor
is a criminal statute vague solely because close cases may exist under its requirements.
That problem is addressed by requiring proof of a specific violation beyond a
reasonable doubt, not by invalidating the statute for facial vagueness. “What renders
a statute vague is not the possibility that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been proved; but rather the
indeterminacy of precisely what that fact is.” United States v. Williams, 553 U.S. 285,
306 (2008).
The plaintiffs argue the terms “inconvenience, annoyance and alarm” fail to
provide a person of ordinary intelligence with notice of what § 5-71-207 forbids and
permit arbitrary and discriminatory enforcement. They rely on Stahl v. City of St.
Louis, 687 F.3d 1038, 1039 (8th Cir. 2012), where we invalidated an ordinance
prohibiting displaying signs or demonstrating on or near a street that resulted in “such
a gathering of persons or stopping of vehicles as to impede either pedestrians or
vehicular traffic.” We concluded the ordinance was “not vague in the traditional sense
that its language [was] ambiguous.” Rather, because it lacked a mens rea requirement,
3
In their opening brief, the plaintiffs do not address the district court’s
determination that Spirit One lacked standing to challenge the Arkansas disorderly
conduct statute. We therefore dismiss its claim for lack of jurisdiction. See Disability
Support Alliance v. Heartwood Enters., 885 F.3d 543, 545 (8th Cir. 2018).
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violation relied on the reactions of third parties, which did not provide people “fair
notice of when their actions are likely to become unlawful.” Id. at 1041. Similarly,
in Coates v. City of Cincinnatti, 402 U.S. 611 (1971), the Supreme Court invalidated
an ordinance prohibiting three or more people assembling on a sidewalk and
“conduct[ing] themselves in a manner annoying to persons passing by.” The
ordinance did not give fair notice of the conduct it prohibited because “[c]onduct that
annoys some people does not annoy others.” Id. at 614.
We agree with the district court that the Arkansas disorderly conduct statute is
not impermissibly vague like the ordinances at issue in Coates and Stahl, primarily
because it contains a mens rea requirement using terms specifically defined in § 5-2-
202 of the Arkansas Criminal Code. Thus, a disorderly conduct conviction cannot be
based solely on the reactions of third parties; the offender must intend to cause public
inconvenience, annoyance, or alarm by obstructing traffic or making unreasonable or
excessive noise, or must recklessly disregard the risk of doing so. As the district court
noted, this requirement allows potential violators to “predict whether a future course
of conduct will violate the statute.”
The plaintiffs also argue the phrases “unreasonable or excessive noise” and
“obstructs pedestrian or vehicular traffic” are unconstitutionally vague. We disagree.
“Obstructing” and “unreasonably” are widely understood restrictions that “require no
guess[ing] at [their] meaning.” Cameron v. Johnson, 390 U.S. 611, 616 (1968); see
Reeves v. McConn, 631 F.2d 377, 385-86 (5th Cir. 1980) (“unreasonably loud” not
void for vagueness). Thus, like the ordinance in Stahl, the conduct proscribed by the
statute is sufficiently clear. The prohibitions are not standardless and provide
sufficient “minimal guidelines to govern law enforcement.” Powell v. Ryan, 855 F.3d
899, 903 (8th Cir. 2017), quoting Smith v. Goguen, 415 U.S. 566, 574 (1974). “As
always, enforcement requires the exercise of some degree of police judgment.”
Grayned, 408 U.S. at 114. The statute is not unconstitutionally vague, either on its
face or as applied to the plaintiffs’ conduct.
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B. Overbreadth. Though facial challenges are disfavored, the overbreadth
doctrine allows a facial challenges to a statute that restricts free speech because it may
be applied unconstitutionally to parties not before the court. See Excalibur Grp., Inc.
v. City of Minneapolis, 116 F.3d 1216, 1223 (8th Cir. 1997), cert. denied, 522 U.S.
1077 (1998). The rationale is that overbroad statutes may chill protected speech.
Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977). But invalidating a law for
overbreadth is “strong medicine”; the doctrine should be employed “sparingly and
only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). The
disorderly conduct statute is only invalid if it is substantially overbroad relative to its
“plainly legitimate sweep.” Id. at 615.
The disorderly conduct statute is a content-neutral time, place, or manner
restriction because it is “justified without reference to the content of the regulated
speech.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
Consequently, the statute is valid if it is “narrowly tailored” to achieve a “significant
governmental interest” and permits “ample alternative channels for communication.”
Phelps-Roper v. City of Manchester, 697 F.3d 678, 686 (8th Cir. 2012) (en banc)
(quotation omitted). It need not be the least restrictive means of serving the
government’s interest; rather, it is sufficiently tailored if “a substantial government
interest . . . would be achieved less effectively absent the regulation.” Ward v. Rock
Against Racism, 491 U.S. 781, 798-99 (1989) (quotation omitted).
The plaintiffs do not contest that the disorderly conduct statute serves a
significant government interest. The government has a substantial interest in
preventing excessive noise -- including in public fora -- and in ensuring the free and
orderly flow of traffic on streets and sidewalks. See Grayned, 408 U.S. at 116 (noise);
Ward, 491 U.S. at 796 (same); McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)
(traffic). The statute directly serves the state interest in limiting noise and traffic
obstructions by prohibiting intentional or reckless speaking or demonstrating in a
manner that creates those obstructions. The statute is sufficiently narrowly tailored
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and leaves open alternative channels of communication. As the district court
observed, “[s]peakers can reasonably convey their message -- any message -- as long
as they do not purposefully or recklessly create unreasonable or excessive noise or
obstruct vehicular or pedestrian traffic.”
The plaintiffs contend the statute is nonetheless overbroad because it
criminalizes noises such as “horns, mufflers, [stadium] crowds . . . [and] people
simply speaking in public.” However, as discussed, the statute’s mens rea element
limits the prohibition to speakers who intentionally or recklessly use horns, mufflers,
or amplifiers “to cause public inconvenience, annoyance, or alarm.” This is an
objective prohibition that does not turn on the subjective opinions of the speaker’s
audience. Though the Legislature might have adopted other objective criteria such as
decibel limits, it has been noted that decibel-based regulations are “very, very
complex.” Reeves, 631 F.2d at 386. Moreover, the Legislature was not
constitutionally required to enact the least restrictive means of serving this substantial
public interest. We agree with the district court that the Arkansas disorderly conduct
statute is not substantially overbroad.
III. Little Rock Permit Ordinance Claims.
The plaintiffs also seek an order declaring that the Little Rock permit ordinance,
Little Rock Rev. Code § 32-551, is unconstitutional on its face and as applied. The
district court concluded that all three plaintiffs lacked standing to challenge the permit
ordinance because they were neither arrested nor charged under it, and were not
prohibited from protesting even though they lacked a permit. We agree.
Section 32-547 of the ordinance provides that no person shall engage in a
parade or public assembly without a permit. As amended in 2015, Little Rock Rev.
Code § 32-546 defines a “public assembly” as “any meeting, demonstration, picket
line, rally or gathering of more than twenty (20) persons for a common purpose as a
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result of prior planning that interferes with the normal flow or regulation of pedestrian
or vehicular traffic or occupies any public area in a place open to the general public.”4
The plaintiffs may challenge the permit ordinance facially without applying for
a permit if it provides government officials with excessive discretion to permit or deny
expressive activity. City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56
(1988). This rule alleviates the risk that speakers will self-censor to avoid denial of
a permit. Id. at 759. But the plaintiffs must satisfy Article III’s injury-in-fact
requirement. See Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392-93
(1988); Sullivan v. City of Augusta, 511 F.3d 16, 25 (1st Cir. 2007), cert. denied, 555
U.S. 821 (2008). They may suffer an Article III injury if their First Amendment rights
are objectively reasonably chilled, even if they have not been criminally prosecuted
under an allegedly unconstitutional statute. Zanders v. Swanson, 573 F.3d 591, 593
(8th Cir. 2009).
The plaintiffs argue their “First Amendment protected activity of attending or
organizing future outreaches has been reasonably chilled out of fear of being arrested
again.” Section 32-551 of the ordinance contains a list of factors used to determine
whether to issue a permit. The plaintiffs allege that a myriad of terms in § 32-551
provide city officials with excessive discretion to approve or deny permit applications.
But it is undisputed that Holick was aware of the permit ordinance and did not apply
for a permit before the September 13 demonstrations, or on September 14 when he did
not expect the number of participants to meet the threshold number of ten required for
a permit. On neither occasion was any participant arrested or cited for violating the
ordinance. Allen testified that in talking to the protestors, he may have mentioned
that they lacked a permit “in hopes that they would comply with [his] lawful
instructions.” Duhe and Holick characterize Lieutenant Allen’s statements as a
4
The version of § 32-546 in effect during September 2012 did not specify a
minimum number of people necessary for a gathering to be considered a “public
assembly.” Holick and Duhe knew the City construed this as requiring ten people.
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“threat” to enforce the ordinance. But they were arrested for violating the disorderly
conduct statute, not the permit ordinance, and they do not assert that the lack of a
permit or discussion about the permit ordinance affected their September 14 protest
activities.
The plaintiffs failed to make a sufficient showing of a risk that they will self-
censor future protected speech activity to avoid denial of a permit required by the
Little Rock ordinance. Duhe averred that his arrest “put a chill on my returning to
Little Rock because the city’s rules for avoiding arrest are not clear,” and that he “will
refrain from using an amplifier until the rules for using one are straightforward and
in writing.” But the permit ordinance had nothing to do with Duhe’s arrest for
disturbing the peace by making excessive noise with an amplifier. Holick averred that
he “do[es] not know from [the ordinance’s] standards how to plan a future event in a
way that will meet the ordinance’s requirements because the standards are left entirely
to the City’s discretion.” However, on the two days in question, Holick did not obtain
a permit, and he has not articulated a desire to return to Little Rock for an event that
would meet the ordinance’s definition of a public assembly. Thus, Holick has not
shown that the permit ordinance will apply to a course of conduct in which he wishes
to engage. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (standing
of party invoking federal jurisdiction “must affirmatively appear in the record”).
Neither Duhe nor Holick has shown that he suffered an injury giving him standing to
bring a disfavored facial challenge to the Little Rock permit ordinance. Spirit One
clearly lacks standing as an associational plaintiff. See Summers v. Earth Island Inst.,
555 U.S. 488, 498 (2009).
IV. Excessive Detention Claims.
After their arrests at around 9:40 a.m., Little Rock police transported Duhe and
Holick to the Jail. Starting at around 10:15 a.m., they were interviewed and
photographed, completed paperwork, and Jail personnel inventoried their property.
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They were then placed in a holding cell. At around 9:41 p.m., they were given
citations with a date for a court hearing and released. Duhe and Holick assert that
Pulaski County and the City violated their Fourth Amendment rights by not releasing
them from the Jail until almost twelve hours after their arrests.
The Fourth Amendment does not bar arrest and pretrial detention for minor
criminal offenses. Atwater, 532 U.S. 318. Arkansas Rule of Criminal Procedure
5.2(b) provides that, “[w]hen a person is arrested for any misdemeanor, the ranking
officer on duty at the place of detention to which the arrested person is taken may
issue a citation in lieu of continued custody.” Pulaski County admits that, once a
detainee is booked at the Jail, deciding whether to cite and release that person is in the
discretion of the sergeant on shift. Detainees charged with disorderly conduct, a class
C misdemeanor, are cited and released if the Jail is too crowded, as it was on the date
Duhe and Holick were arrested. Detainees are cited and released from the facility “as
expediently as possible,” subject to staff availability and the number of detainees to
be processed. Detainees who are not cited and released are held until they post bond
or make an initial court appearance, which may take as long as 48 hours. Detainees
in the intake area must be either released or placed in a housing unit within 23 hours.
The plaintiffs argue the delay in their release violated the Supreme Court’s
decisions in Gerstein v. Pugh, 420 U.S. 103 (1975) and County of Riverside v.
McLaughlin, 500 U.S. 44 (1991). But those cases determined that state authorities
must in most circumstances provide a fair and reliable determination of probable cause
within 48 hours as a condition for any significant pretrial restraint. 420 U.S. at 124-
25; 500 U.S. at 56-57. Here, Duhe and Holick do not assert they were given an
unreasonably delayed probable cause hearing. Their grievance is that Arkansas law
permitted them to be cited and released, but the Jail unreasonably delayed that process
pursuant to an allegedly unconstitutional county policy that directed the Jail to cite
and release warrantless arrestees only if the jail headcount was too high. Under this
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policy, they assert, “there is no rush to cite and release persons arrested without
warrant.”
Duhe and Holick cite no Supreme Court or circuit court authority supporting
the theory that a twelve-hour delay in their post-arrest release violated the Fourth
Amendment. They had no constitutional right to be cited and released and could have
been detained until a timely judicial probable cause determination was made under
Gerstein and McLaughlin. See Higbee v. City of San Diego, 911 F.2d 377, 379 (9th
Cir. 1990) (no constitutional right to “immediate liberty” because state could
undertake “the usual post-arrest procedures”). Of course, detainees have been seized,
and the Fourth Amendment requires that the duration of that seizure not be
unreasonably extended. Arkansas Criminal Rule 5.2(b) allows a jail’s ranking officer
to release a detainee instead of continuing custody. This is consistent with the
flexibility States are permitted in determining post-arrest procedures. See
McLaughlin, 500 U.S. at 53; Bryant v. City of New York, 404 F.3d 128, 138 (2d Cir.
2005).
Even if a Jail policy caused Duhe and Holick’s release to be delayed, a
predicate to § 1983 municipal liability is violation of the plaintiffs’ rights. Russell v.
Hennepin Cty., 420 F.3d 841, 846 (8th Cir. 2005); Webb v. City of Maplewood, 889
F.3d 483, 486-87 (8th Cir. 2018). Like the district court, we conclude Duhe and
Holick failed to show that the Jail’s delay in citing and releasing them was
unreasonable. The record reflects the delay resulted from normal jail operations. In
the immediately preceding days, the average detainee cited and released was held just
under ten hours. Watch Commander Jackson Bennett testified that at the beginning
of the “A shift” on September 14, there were thirty-two people waiting in the intake
area, which he characterized as “pretty high.” A large portion of the detainees booked
during that period, including on the same shift as the plaintiffs, waited longer to be
released. Duhe and Holick were released the same day they were booked, which was
not unreasonable given the demands on the Jail’s resources. See Bryant, 404 F.3d at
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138-39. There is no evidence their release was delayed because of ill will or
opposition to their public demonstrations. Though any delay in implementing the
decision to restore a person’s liberty is unfortunate, the plaintiffs’ Fourth Amendment
rights were not violated. Accordingly, Pulaski County is not liable under § 1983, and
neither is the City, even if the County’s policies should be attributed to the City, as
plaintiffs assert.
V. Conclusion.
Because they are not prevailing parties, the plaintiffs are not entitled to
attorney’s fees under 42 U.S.C. § 1988. See Doe v. Nixon, 716 F.3d 1041, 1048 (8th
Cir. 2013). The judgment of the district court is affirmed.
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