Angela Swagler v. Neighoff

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cv-02289-RDB Copies to all parties and the district court/agency. [998447266] [09-1737]

Angela Swagler v. Neighoff

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1737 ANGELA SWAGLER; ELIZABETH WALSH, Plaintiffs - Appellees, v. NEIGHOFF, State Trooper, in his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.

Dockets.Justia.com

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Affirmed in part and reversed in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.

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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 the ("Appellants" one or hour "the troopers"), at a having nearby

dispersed

demonstrators

earlier

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

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motion

for

summary of the

judgment request by we as a

and, for

instead, qualified and

in

limiting to

its the

consideration amended thereto. Appellees'

immunity the

complaint

filed

Appellees further matter

attachments two of we

Nevertheless, claims fail

conclude of law.

that

Accordingly,

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 nonmovants in the district court. At Swagler approximately and Walsh, 4:00 18 p.m. and on 20 Friday, years August 1, 2008,

then

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

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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 20 images to 40 of

dismembered apart,

fetuses. 1 care,

The they

demonstrators alleged, not

stood to

feet

taking

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
1

fetuses

and

(2)

concern

about

the

impact

of

the

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

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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 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
2

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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) Harford telephoned County to the seek Office a of the State's advice Attorney regarding for the

prosecutor's

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."). 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
3

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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

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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 a Md. Code Ann., Crim. id. Law § § 10-201(c)(2); and (2) (3)

disobeying

lawful

order,

see

10-201(c)(3);

impeding traffic, see Harford County Code § 193-4(B)(1). 4 With Lewis's troopers recommendation charged all and of at the the order of Sgt. Bohlen, with the the

adult

demonstrators

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 damages
4

relevant pursuant

to to

this 42

appeal, U.S.C.

Swagler

and

Walsh each

sought of the

§ 1983

against

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

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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 The on Amendment's filed prohibition on

unreasonable dispositive

seizures. motions

troopers qualified

pre-discovery providing

based

immunity,

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

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claim was "highly fact-dependent." court focused proof on of the the issue,

By this, we take it that the by Appellees before of us, the

pressed

whether

actual

subjective

motivation

troopers in ordering the cessation of the demonstration (or in arresting required qualified the Appellees upon their of Id. the defiance record the of to that order) the

factual immunity

development inquiry. claims,

the As to

inform

Fourth court

Amendment

unreasonable

seizure

district

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,

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

5

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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-bycase 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, 41718 (4th Cir. 2005) (internal This quotation inquiry marks is an and citations one;

omitted;

bracket

added).

objective

"[s]ubjective factors involving the officer's motives, intent, 12

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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 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
6

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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 there to arrest no Appellees "clearly for violating the dispersal of order, federal law

was

established" that

principle prohibited

constitutional

jurisprudence

local

enforcement officers from doing so. Appellees They focus forcefully heavily dispute on their the First troopers' Amendment contentions. claims and

most

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

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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

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

7

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U.S. 95, 97 (1948). Here, Appellees alleged that the troopers' "policies and actions vague, standards against in that [their] they in speech neither are define citizens'

unconstitutionally sufficiently the

utilized

governing

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 visą-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" 16 to the threshold immunity

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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 source of of the Constitution `provides a an explicit must textual assess a

constitutional

protection,'

court

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 as under the First by the and Fourth Amendments, Amendment.

respectively,

incorporated

Fourteenth

Accordingly, if Appellees have viable damages claims at all, 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
8

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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 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
9

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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 posters to of Appellees, dismembered about the "content" Under this of Appellees' of

fetuses.

iteration

Appellees' theory, the troopers culpably enforced a "heckler's veto." 10 ("leave "narrowly Thus, the according county") to Appellees, not serve the dispersal was order not

was to

"content-neutral," significant or

tailored"

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). 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
10

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Furthermore, retaliation specifically

Appellees based allege on

contend, the are

their of

arrests their from

constituted speech. They

content

they

"chilled"

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 either at and the overcome summary the assertion stage of or

qualified

immunity,

judgment

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

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Madison, removal

469 of a

F.3d

625,

630

(7th

Cir. large

2006) signs

(observing on busy

that

protester

carrying

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 the in declining to of address under Fed. R. as Civ. to P. the

12(b)(6)

applicability

qualified

immunity

Fourth Amendment unreasonable seizure claims. "This Court has held that the Fourth Amendment right to be arrested only on

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.'").

11

21

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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 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
12

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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. 23