Swagler v. Neighoff

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1737
ANGELA SWAGLER; ELIZABETH WALSH,
Plaintiffs - Appellees,
v.
NEIGHOFF, State Trooper, in his official and in his
individual capacity; BRADLEY, State Trooper, in his official
and in his individual capacity; RASINSKI, in his official
and in his individual capacity,
Defendants – Appellants,
and
HARFORD COUNTY; CITY OF BEL AIR, MARYLAND; TERRENCE
SHERIDAN, Colonel, in his official capacity; DONALD RAVADGE,
Bel Air Police Officer in his individual capacity; MARK
ZULAUF, Bel Air Police Officer in his official capacity;
ARMAND DUPRE, Bel Air Police Officer in his individual
capacity; L. JESSE BANE, Harford County Sheriff, in his
individual capacity,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cv-02289-RDB)
Argued: March 24, 2010 Decided: October 18, 2010
Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Affirmed in part and reversed in part by unpublished per curiam
opinion.
ARGUED: Joshua Neal Auerbach, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellants. Timothy Donald
Chandler, ALLIANCE DEFENSE FUND, Folsom, California, for
Appellees. ON BRIEF: Douglas F. Gansler, Attorney General,
Baltimore, Maryland, for Appellants. Kevin Theriot, Dale
Schowengerdt, ALLIANCE DEFENSE FUND, Leawood, Kansas, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Maryland law enforcement officers arrested Appellees Angela
Swagler and Elizabeth Walsh, together with 16 others, as they
participated in a pro-life demonstration taking place along a
state highway in Harford County, Maryland. The Appellants,
Maryland State Troopers Christopher Bradley, Charles Neighoff,
and Walter Rasinski (“Appellants” or “the troopers”), having
dispersed the demonstrators one hour earlier at a nearby
location, and having consulted with a local prosecutor, effected
Appellees’ arrests and charged them with impeding traffic (among
other violations). Seeking damages as well as injunctive and
declaratory relief under federal and state law, Swagler and
Walsh filed a nine-count amended complaint against the troopers
and numerous other defendants. The troopers moved to dismiss,
or, in the alternative, for summary judgment, as to all federal
claims asserted against them in their individual capacities,
invoking qualified immunity. The district court concluded that
the request for qualified immunity was “premature” and denied
the troopers’ motion. In so ruling, the district court
explicitly declined to treat the troopers’ motion as a motion
for summary judgment. The troopers now bring this interlocutory
appeal from the district court’s denial of qualified immunity.
We conclude that the district court committed no abuse of
discretion in declining to consider the troopers’ motion as a
3
motion for summary judgment and, instead, in limiting its
consideration of the request for qualified immunity to the
amended complaint filed by Appellees and the attachments
thereto. Nevertheless, we further conclude that two of
Appellees’ claims fail as a matter of law. Accordingly, we
affirm in part and reverse in part. (Appellees’ motion to file
attachments to their brief is denied as moot.)
I.
The following facts are undisputed or are drawn from the
well-pled allegations contained in Appellees’ amended complaint
and set forth in the light most favorable to Appellees, the non-
movants in the district court.
At approximately 4:00 p.m. on Friday, August 1, 2008,
Swagler and Walsh, then 18 and 20 years old, respectively,
gathered with 20 to 30 other members of a pro-life/anti-abortion
group (all wearing blue T-shirts with large white lettering
conveying their fundamental message: “Pro-Life” on the front;
“Defend Life” on the back). The group staged a demonstration
(“the first demonstration”) at the intersection of state Route
24 (an 11-lane divided highway) and Route 924 in Harford County,
Maryland. There are no sidewalks in or at this intersection and
one of the troopers who regularly patrols in the vicinity
attested that he had never observed pedestrians in the area. A
4
grassy shoulder runs adjacent to Route 24 and there is a grassy
median separating the northbound and southbound lanes. The
intersection of Routes 24 and 924 is approximately one-half mile
north of the heavily-used Route 24 interchange with I-95.
The demonstrators held posters, some of which were as large
as three feet by five feet and included graphic images of
dismembered fetuses. 1 The demonstrators stood 20 to 40 feet
apart, taking care, they alleged, not to disrupt passing
motorists’ views of road signs.
By 4:20 p.m. that day, motorists driving through the
intersection and on Route 24 began to call the Maryland State
Police Barrack in Bel Air, Maryland. Specifically, between 4:20
p.m. and 4:40 p.m., the Barrack received approximately 20 calls
from motorists traveling through the area; eight of the calls
were recorded. (The rapid receipt of the calls apparently
overwhelmed the Barrack’s recording capacity.) The content of
the recorded calls reflect that the callers expressed two
sentiments: (1) disapproval of the public display of images of
dismembered fetuses and (2) concern about the impact of the
1
The demonstrators displayed large, full-color images of
the dismembered fetus known in the Pro-Life/Anti-Abortion
Movement as “Baby Malachi,” an image that has long been a staple
of such demonstrations. See World Wide Street Preachers’
Fellowship v. City of Owensboro, 342 F. Supp. 2d 634, 636
(W.D.Ky. 2004); New York ex rel. Spitzer v. Cain, 418 F. Supp.
2d 457, 462 n.2 (S.D.N.Y. 2006).
5
images on their own ability and that of others to drive safely.
At the time of the police response to the calls about the
demonstration, Friday evening rush hour was underway. The posted
speed limit on this portion of Route 24 is 55 miles per hour.
Upon her receipt of the motorists’ calls (and after
learning of others received by subordinates), the duty sergeant
at the Barrack dispatched Troopers Bradley, Neighoff, and
Rasinski to the scene. Trooper Bradley was the first to arrive,
followed by Rasinski and Neighoff. The troopers observed about
30 persons standing on and about the shoulders of the
intersection and on the median strip of Route 24 holding the
posters. The troopers informed the participants, incorrectly,
that county law required that they obtain a “permit” to conduct
the demonstration. When they learned the demonstrators had no
“permit,” the troopers ordered the group to “leave the area” and
to “leave the county,” specifically informing the demonstrators
that they would be arrested unless they discontinued their
demonstration. 2 After expressing disagreement with the troopers
2
Although the “leave the county” order was urged on us at
oral argument, in neither their amended complaint nor in their
affidavits did Appellees make that particular allegation.
Rather, the amended complaint alleges that Appellees were told,
“You need to pack up and go or you’re going to jail, that’s it.”
J.A. 50. In any event, Appellees knew they remained in Harford
County when they relocated within the town limits of Bel Air,
two miles north of their original location. They simply
miscalculated the jurisdictional reach of the state police. J.A.
(Continued)
6
over several minutes of dialogue with them, during which they
insisted that they had a First Amendment right to be where they
were, doing what they were doing, the demonstrators departed the
area. 3 In particular, Appellees told the troopers that because
the demonstrators wished to avoid arrest, they would comply with
the dispersal order. J.A. 49 (Am. Compl. ¶ 37).
Meanwhile, Trooper Charles Mohr (who is not a party to this
appeal) telephoned the Office of the State’s Attorney for
Harford County to seek a prosecutor’s advice regarding the
proper response to the demonstration. Trooper Mohr spoke with
Deputy State’s Attorney Scott Lewis, who opined, albeit somewhat
tentatively, that the demonstrators were likely violating the
county law that prohibits the obstruction of the free flow of
traffic and that the troopers would be “on good ground” to order
the demonstrators to leave the area. Lewis specifically noted
that the demonstration could cause hazards on the highway during
rush hour (arising from, among other things, distracted
79 (“We attempted to comply with the . . . troopers’ command by
moving down the street two miles.”).
3
Appellees contend that they and their group had conducted
similar demonstrations within the State of Maryland in the weeks
preceding the Harford County demonstration and they had never
been ordered to cease their activity.
7
motorists). Trooper Mohr related the substance of this
conversation by radio to Trooper Neighoff.
After their confrontation with the troopers at the
intersection of Routes 24 and 924, the demonstrators (including
Appellees) departed that area and resumed their demonstration
approximately two miles north, near or at the intersection of
Route 24 and Macphail Road (“the second demonstration”). That
location is just inside the Bel Air town limits but still within
Harford County. Appellees thought that they had left the
enforcement jurisdiction of the state police, but in fact, they
had not done so. They resumed their demonstration on the wide
grassy shoulder adjacent to Route 24; as at the prior location,
there were no sidewalks. At least ten motorists who observed the
second demonstration called the Bel Air Barrack to express
similar concerns about the nature of the posters and the impact
of the demonstrators’ presence on traffic safety. Only one of
these calls was recorded.
The same three troopers went to the scene of the second
demonstration, together with Trooper Mohr. There, Trooper Mohr
described to Trooper Neighoff his earlier telephone call with
Deputy State’s Attorney Lewis and Lewis’s advice. Sergeant Donna
Bohlen, the troopers’ superior officer (who was aware of Lewis’s
conversation with Mohr), directed the troopers via radio to
arrest the demonstrators. The troopers and other law enforcement
8
officers assisting them then arrested 18 of the demonstrators
(i.e., those whom the troopers recognized from their earlier
encounter at the intersection of Routes 24 and 924), including
Appellees, and transported them to the Barrack for processing
and charging.
At the Barrack, Trooper Mohr called Deputy State’s Attorney
Lewis again. Lewis advised Trooper Mohr that the demonstrators
should be charged with the following offenses: (1) disorderly
conduct, see Md. Code Ann., Crim. Law § 10-201(c)(2); (2)
disobeying a lawful order, see id. § 10-201(c)(3); and (3)
impeding traffic, see Harford County Code § 193-4(B)(1). 4 With
Lewis’s recommendation and at the order of Sgt. Bohlen, the
troopers charged all of the adult demonstrators with the
offenses that Lewis had identified. The Harford County State’s
Attorney entered a nolle prosequi of all the charges as to all
arrestees when the cases came on for trial several weeks after
the arrests.
II.
As relevant to this appeal, Swagler and Walsh sought
damages pursuant to 42 U.S.C. § 1983 against each of the
4
While one section of Harford County Code § 193-4 prohibits
“loitering,” the troopers did not charge any of the arrestees
with “loitering” -- only with impeding traffic.
9
troopers in his individual capacity on the following four
theories: (1) violation of the Fourteenth Amendment due process
guarantee based on “vague” “policies and actions;” (2) violation
of the Fourteenth Amendment’s substantive due process component;
(3) violation of the First Amendment free speech guarantee; and
(4) violation of the Fourth Amendment’s prohibition on
unreasonable seizures. The troopers filed pre-discovery
dispositive motions based on qualified immunity, providing
materials outside of the pleadings in support of the motion. The
district court declined to determine whether the troopers were
entitled to qualified immunity, concluding that the request was
“premature.” That is, particularly in light of a Fed. R. Civ. P.
56(f) affidavit from Appellees’ counsel seeking permission to
take discovery before filing a more substantive response to the
troopers’ dispositive motion, the district court concluded that
Appellees should be given an opportunity for discovery before
addressing the issue of qualified immunity.
Specifically, the district court ruled as follows. As to
the due process claims, the district court concluded that the
Amended Complaint sufficiently alleged violations of
constitutional rights, without specific mention of the issue of
qualified immunity. Swagler v. Harford County, No. 08-2289, 2009
U.S. Dist. LEXIS 47895, at *18-19 (D. Md. June 2, 2009). As to
the First Amendment claims, the court was persuaded that such a
10
claim was “highly fact-dependent.” By this, we take it that the
court focused on the issue, pressed by Appellees before us,
whether proof of the actual subjective motivation of the
troopers in ordering the cessation of the demonstration (or in
arresting the Appellees upon their defiance of that order)
required factual development of the record to inform the
qualified immunity inquiry. Id. As to the Fourth Amendment
unreasonable seizure claims, the district court essentially
concluded that the Appellees had satisfactorily alleged and/or
had satisfactorily generated a genuine dispute of material fact
as to whether the second demonstration (and perhaps the first as
well) had impeded traffic. Id. at *23.
III.
In this timely interlocutory appeal, over which we have
jurisdiction pursuant to 28 U. S. C. § 1291, we review solely
legal issues, see Mitchell v. Forsyth, 472 U.S. 511, 529 n.9
(1985); Johnson v. Jones, 515 U.S. 304, 313 (1995), applying a
de novo standard. 5 See, e.g., Johnson v. Caudhill, 475 F.3d 645,
5
We reject Appellees’ contention that we lack jurisdiction
over this appeal under the line of authorities recently
summarized in Culosi v. Bullock, 596 F.3d 195, 201-03 (4th Cir.
2010) (dismissing interlocutory appeal by county police officer
seeking reversal of district court’s denial of qualified
immunity at summary judge stage).
11
650 (4th Cir. 2007). Whether an asserted factual dispute is
material to qualified immunity is also a legal determination
subject to de novo review. See, e.g., Elliott v. Leavitt, 99
F.3d 640, 644 (4th Cir. 1996).
When evaluating a claim of qualified immunity, courts
traditionally engage in a two-step analysis, Wilson v. Layne,
526 U.S. 603, 609 (1999), considering first the threshold
question of whether the facts alleged, taken in the light most
favorable to the plaintiff, show that the defendants’ conduct
violated a constitutional right. Saucier v. Katz, 533 U.S. 194,
200-201 (2001). If so, the next step is to determine whether the
right was clearly established. Id. In undertaking this case-by-
case determination, courts ask “whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. Importantly,
[i]n determining whether the right violated was
clearly established, we define the right in light of
the specific context of the case, not as a broad
general proposition . . . . If the right was not
clearly established in the specific context of the
case -- that is, if it was not clear to a reasonable
officer that the conduct in which he allegedly engaged
was unlawful in the situation he confronted -- then
the law affords immunity from suit.
McKinney v. Richland County Sheriff’s Dep’t, 431 F.3d 415, 417-
18 (4th Cir. 2005) (internal quotation marks and citations
omitted; bracket added). This inquiry is an objective one;
“[s]ubjective factors involving the officer’s motives, intent,
12
or propensities are not relevant.” Smith v. Reddy, 101 F.3d 351,
357 (4th Cir. 1996).
The Supreme Court has modified the strict two-tiered
approach. Courts are now authorized to evaluate the two factors
in the order most appropriate for the specific case. Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009) (“The judges of the
district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at
hand.”).
IV.
The troopers contend that the district court erred in
declining to rule, even at this early stage of the case, that
qualified immunity shielded them from Appellees’ damages claims. 6
Specifically, they contend that as to the due process and
Fourth Amendment claims, as a matter of law, no constitutional
6
As the district court acknowledged, the Supreme Court
“repeatedly ha[s] stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (alteration
added). See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.
1992) (“Because qualified immunity is designed to shield
officers not only from liability but from the burdens of
litigation, its establishment at the pleading or summary
judgment stage has been specifically encouraged.”).
13
violation can be shown under any plausible interpretation of the
facts, and therefore they are entitled to qualified immunity. As
to the First and Fourth Amendment claims, they further contend
that at the time they acted to disperse the demonstration and
then to arrest Appellees for violating the dispersal order,
there was no “clearly established” principle of federal
constitutional jurisprudence that prohibited local law
enforcement officers from doing so.
Appellees forcefully dispute the troopers’ contentions.
They focus most heavily on their First Amendment claims and
emphasize the alleged statement by Trooper Bradley that they
“leave the county.” They contend:
Even if [Appellees’] constitutionally-protected
speech in a public forum had caused some degree of
traffic disruption, that could not have formed a basis
to declare the entire county off-limits for free
speech activities. This is particularly true given the
dubious base upon which the Troopers solely rely to
show they were reasonable in arresting Plaintiffs for
obstructing traffic: anonymous phone calls from
passing motorists who disliked Plaintiffs’ message and
whose only allegations of disruption were based on
Plaintiffs’ message, not conduct. In short, the
linchpin of the Troopers’ qualified immunity claim is
their unconstitutional and unreasonable order to leave
the county; once this fact is pulled out, their
qualified immunity defense falls apart.
Appellees’ Br. at 7.
Having fully considered the arguments of the parties and
the controlling legal principles, we are constrained to agree
with Appellants as to the due process claims. As to the First
14
and Fourth Amendment claims, however, we hold that the district
court acted within its discretion in denying the troopers’
request for qualified immunity in advance of discovery.
V.
We first consider whether qualified immunity shields the
troopers from Appellees’ due process claims. We then consider
whether Appellees’ First Amendment and their Fourth Amendment
claims, respectively, must likewise yield to the troopers’
assertion of qualified immunity.
A.
Unsurprisingly, perhaps, in their briefing and arguments,
the parties have essentially ignored the Fourteenth Amendment
due process claims. 7 Nonetheless, we conclude that the district
court should have dismissed those claims.
It is well-settled that “[l]egislation may run afoul of the
Due Process Clause because it fails to give adequate guidance to
those who would be law-abiding, to advise defendants of the
nature of the offense with which they are charged, or to guide
courts in trying those who are accused.” Musser v. Utah, 333
7
To be sure, the troopers’ Notice of Appeal makes clear
that they appeal the denial of qualified immunity on the due
process claims as well as the First and Fourth Amendment claims.
J.A. 252.
15
U.S. 95, 97 (1948). Here, Appellees alleged that the troopers’
“policies and actions against [their] speech are
unconstitutionally vague, in that they neither define
sufficiently the standards utilized in governing citizens’
speech in public fora, nor do they protect against arbitrary and
discriminatory enforcement.” J.A. 62 (Am. Compl. ¶ 134). These
claims fail as a matter of law. First, the void-for-vagueness
doctrine focuses on legislation -– not “policies and actions.”
Second, the Appellees do not point to a specific Maryland State
Police policy or a specific action on the part of the troopers
that would be considered “vague.”
In any event, the troopers’ Fed. R. Civ. P. 12(b)(6) motion
to dismiss clearly invoked the qualified immunity doctrine vis-
à-vis Appellees’ due process vagueness claim because, if there
is no claim, then there is no constitutional violation based on
“clearly established” law. Chavez v. Martinez, 538 U.S. 760, 766
(2003) (Thomas, J.) (“In deciding whether an officer is entitled
to qualified immunity, we must first determine whether the
officer’s alleged conduct violated a constitutional right . . .
. If not, the officer is entitled to qualified immunity.”)
(internal citations omitted); see Siegert v. Gilley, 500 U.S.
226, 232 (1991) (noting that “the determination of whether the
plaintiff has asserted a violation of a constitutional right at
all” is a “necessary concomitant” to the threshold immunity
16
question). We hold that Appellees have not asserted and cannot
assert a cognizable due process “vagueness” claim against the
troopers and, therefore, qualified immunity applies to shield
the troopers from damages claims asserted on such a theory. Id. 8
Similarly, Appellees’ alleged substantive due process
claims are non-existent as a matter of law. The Supreme Court
explained in Conn v. Gabbert, “We have held that where another
provision of the Constitution ‘provides an explicit textual
source of constitutional protection,’ a court must assess a
plaintiff’s claims under that explicit provision and ‘not the
more generalized notion of “substantive due process.’” 526 U.S.
286, 293 (1999) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). In the case at bar, the Appellees’ rights to free
speech and to freedom from unreasonable seizure are explicitly,
textually guaranteed under the First and Fourth Amendments,
respectively, as incorporated by the Fourteenth Amendment.
Accordingly, if Appellees have viable damages claims at all,
8
Indeed, the due process vagueness claims are clearly moot
because, on December 1, 2009, during the pendency of this
interlocutory appeal, Appellees filed a second amended complaint
in the district court in which they voluntarily dismissed the
due process vagueness claims against the troopers. See Colonial
Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 1989)
(observing that this court will take judicial notice of the
existence and content of the records of a court of record). They
assert the vagueness claim against certain municipal defendants
and supervisory officers only. See No. 08-2289, Docket No. 125
at ¶ 137 (D. Md. 12/1/09).
17
they must be rooted in those provisions and not in substantive
due process. Conn, 526 U.S. at 293.
B.
The district court essentially declined to consider, under
Fed. R. Civ. P. 12(b)(6), the applicability of qualified
immunity as to Appellees’ First Amendment claims. Although the
district court said very little about the First Amendment
claims, it basically concluded that whether the First Amendment
claims were based on a retaliation theory (as Appellees seem to
characterize them on appeal before us), see, e.g., Constantine
v. Rectors and Visitors of George Mason Univ., 411 F.3d 474,
499-500 (4th Cir. 2005), or on a theory of improper prior
restraint, see Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989), if the allegations in the amended complaint were true,
then such a claim would be made out.
We do not disturb the district court’s conclusion in that
regard. And this is so even though Appellees do not contend that
the troopers were actually individually, subjectively motivated
to squelch their speech based on its content. 9 Viewed in the
9
Any doubt concerning the gravamen of Appellees’ theory is
extinguished by an examination of the second amended complaint
filed in the district court during the pendency of this appeal.
Appellees had originally alleged that “the individual arresting
officers acted maliciously and with intent to violate the
constitutional and statutory rights of the Plaintiffs by
arresting [them].” J.A. 61 (emphasis and alteration added). In
(Continued)
18
light most favorable to Appellees, their contention seems to be
that the troopers are liable because they took adverse action
against Appellees (that is, they ordered the demonstration to
cease and then arrested Appellees) by acting as willing agents
of the motorists who called the Bel Air Barrack to complain,
according to Appellees, about the “content” of Appellees’
posters of dismembered fetuses. Under this iteration of
Appellees’ theory, the troopers culpably enforced a “heckler’s
veto.” 10 Thus, according to Appellees, the dispersal order
(“leave the county”) was not “content-neutral,” was not
“narrowly tailored” to serve significant or compelling
governmental interests, and did not leave open other channels of
communication. See Rock Against Racism, 491 U.S. at 791.
the second amended complaint, however, see supra n.8, Appellees
have specifically deleted in that allegation the phrase “the
individual arresting officers” and instead, have limited that
allegation to two supervisory officials. See No. 08-2289, Docket
No. 125 at ¶ 123 (D.Md. 12/1/09).
10
See Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966);
Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985)
(“Historically, one of the most persistent and insidious threats
to first amendment rights has been that posed by the ‘heckler's
veto,’ imposed by the successful importuning of government to
curtail ‘offensive’ speech at peril of suffering disruptions of
public order . . . . Though this ‘veto’ has probably been most
frequently exercised through legislation responsive to majority
sensibilities, the same assault on first amendment values of
course occurs when, as here, it is exercised by executive action
responsive to the sensibilities of a minority.”) (citations
omitted), cert. denied, 476 U.S. 1159 (1986).
19
Furthermore, Appellees contend, their arrests constituted
retaliation based on the content of their speech. They
specifically allege they are “chilled” from further pro-life
demonstrations in Harford County as a result of the troopers’
actions and that they suffer from several adverse emotional and
psychological effects from their arrests. J.A. 62.
Whether Appellees will be able to sustain their damages
claims against the troopers and overcome the assertion of
qualified immunity, either at the summary judgment stage or
later on the basis of jury factfinding if summary judgment is
denied, we need not and do offer an opinion in this
interlocutory appeal. Manifestly, the “pure speech” quality of
images of a dismembered fetus (at least as the image is deployed
in the pro-life movement, see supra n.1) counsels our respect
for Appellees’ claims. See Am. Legion Post 7 v. City of Durham,
239 F.3d 601, 606 (4th Cir. 2001) (“‘[c]ommunication by signs
and posters is virtually pure speech’”) (citation omitted).
On the other hand, however, in ordering the cessation of
the first demonstration, the troopers arguably acted reasonably
and on a content-neutral basis to address a risk of automobile
accidents. Cf. Lytle v. Doyle, 326 F.3d 463, 470 (4th Cir. 2003)
(observing that “the State may act to protect its substantial
and legitimate interest in traffic safety” consonant with First
Amendment protections) (citations omitted); Ovadal v. City of
20
Madison, 469 F.3d 625, 630 (7th Cir. 2006) (observing that
removal of a protester carrying large signs on busy highway
overpass deemed content-based if his “message angered drivers
who then reacted and were distracted from the task of driving
safely[,]” but content-neutral if his “presence on that day and
under those driving conditions created a ‘spectacle’ that led
some drivers to be distracted from the task of safely
navigating” the highway) (emphases in original). 11 Whether that
is so remains to be seen after Appellees have taken discovery.
The district court did not err or commit an abuse of discretion
in so concluding.
C.
What we have said regarding the First Amendment claims
largely disposes of the troopers’ assertion that the district
court erred in declining to address under Fed. R. Civ. P.
12(b)(6) the applicability of qualified immunity as to the
Fourth Amendment unreasonable seizure claims. “This Court has
held that the Fourth Amendment right to be arrested only on
11
Of course, Appellees’ First Amendment rights are not
limitless. See United States v. Grace, 461 U.S. 171, 177-78
(1983) (quoting Adderley v. Florida, 385 U.S. 39, 47-48 (1966))
(“We have regularly rejected the assertion that people who wish
‘to propagandize protests or views have a constitutional right
to do so whenever and however and wherever they please.’”).
21
probable cause is clearly established. See Smith v. Reddy, 101
F.3d 351, 356 (4th Cir. 1996).” Henderson v. Simms, 223 F.3d
267, 273 (4th Cir. 2000). To succeed on their Fourth Amendment
claims, Appellees must establish that the troopers unlawfully
arrested them. Id. An unlawful arrest is one effected in the
absence of probable cause. See, e.g., Draper v. United States,
358 U.S. 307, 310-11 (1959).
As explained above, viewed in the light most favorable to
Appellees, the allegations in the amended complaint plausibly
alleged an absence of probable cause and that the absence of
probable cause would have been clear to a reasonable law
enforcement officer. Thus, the request for qualified immunity
was properly denied on the face of the amended complaint. 12
12
The troopers contend that a reasonable officer
confronted with the same situation as were they at the second
demonstration would have believed that there was probable cause
to arrest. The Eighth Circuit has decided a case with almost
identical facts to the case at bar. The plaintiffs in Frye v.
Kansas City Police Dep’t, 375 F.3d 785 (8th Cir. 2004), were
pro-life demonstrators who were arrested under a Kansas City
ordinance that made it “unlawful for any person to . . . stand .
. . either alone or in concert with others in a public place in
such a manner so as to [o]bstruct any public street, public
highway . . . by hindering or impeding the free and
uninterrupted passage of vehicles, traffic, or pedestrians.” Id.
at 788. The court held that the arresting officers “reasonably
interpreted the ordinance as prohibiting conduct which
distracted drivers and thereby obstructed a public street by
‘hindering or impeding the free and uninterrupted flow of
traffic.’” Id. at 792. The court further held that the arresting
officers were entitled to qualified immunity because (1)
objectively, probable cause was at least arguable; (2)
(Continued)
22
VI.
For the reasons stated herein, the order of the district
court denying qualified immunity is
AFFIRMED IN PART AND REVERSED IN PART.
consultation with a prosecutor prior to an arrest weighs heavily
in favor of immunity; and (3) it is immaterial, for purposes of
the qualified immunity analysis, whether it was the subjective
intent of the arresting officer to suppress the arrestees’
speech. Id. We do not speculate whether the outcome here will
track the outcome in Frye; it suffices to observe that Frye was
decided on motions for summary judgment after discovery, see 260
F.Supp.2d 796 (W.D. Mo. 2003), not on pre-discovery motions to
dismiss.
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