Deborah Szymecki v. Ashley Houck

Filing 920091124

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. "Qualified

G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).

immunity protects government officials from civil damages in a § 1983 action insofar as their conduct does not violate clearly established reasonable statutory person or constitutional have known." rights Edwards of v. which City a of

would

Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (internal quotation marks and citation omitted). is entitled to qualified In determining whether a defendant 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 3

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 . . . ." omitted). Id. (internal quotation marks and citation

Accordingly, if the right is recognized in another

circuit and not in this circuit, the "official will ordinarily retain the immunity defense." the constitutional official right "must Id. be Moreover, the contours of sufficiently what clear is that a

reasonable

would

understand

[she]

doing

violates that right." (citation omitted). Here, the

Hope v. Pelzer, 536 U.S. 730, 739 (2002)

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. the record and the relevant legal We have thoroughly reviewed 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 before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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