Lauren Graham v. C. Gagnon

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-00872-TSE-TCB. [999898122]. [15-1521]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1521

LAUREN GRAHAM,
Plaintiff - Appellant,
v.
C. GAGNON; JANNIE CLIPP,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:14-cv-00872-TSE-TCB)

Argued:

May 11, 2016

Decided:

July 27, 2016

Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Reversed and remanded by published opinion.
Judge Floyd wrote
the opinion, in which Judge Motz and Senior Judge Davis
concurred.

Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellant.
Julia Bougie Judkins, BANCROFT,
MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax, Virginia, for
Appellees.

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FLOYD, Circuit Judge:
Appellant
justice.

Lauren

Graham

was

arrested

for

obstruction

of

The obstruction charge was ultimately dismissed and

her record expunged.

Graham subsequently filed a civil lawsuit

against the police officers responsible for her arrest, alleging
that

the

officers

violated

her

Fourth

Amendment

rights

by

arresting her without probable cause.

Following discovery, the

officers

arguing

moved

for

summary

judgment,

entitled to qualified immunity.

that

they

were

The district court granted the

officers’ motion, and Graham appealed.

Because we conclude that

it would have been clear to reasonable officers in Appellees’
position that they lacked probable cause to arrest Graham, we
reverse the grant of summary judgment and remand.

I.
The facts underlying this appeal are drawn from the summary
judgment record made after discovery in the district court and
are presented here in the light most favorable to Graham, the
non-moving party.

See, e.g., Merchant v. Bauer, 677 F.3d 656,

658 n.1 (4th Cir. 2012).

A.
At about 10:30 p.m. on September 16, 2012, Mitchell Lee
Cannon

called

the

Falls

Church,

Virginia,

Police

Department

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(FCPD) to report an assault.

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Cannon was leaving a convenience

store when he encountered Colby Twinam, a male in his early
twenties,

in

the

parking

lot.

Apparently

still

harboring

a

grudge from high school, Twinam punched Cannon in the back of
the head.
car.

Cannon pushed Twinam away and retreated behind his

Twinam taunted Cannon, broke Cannon’s car antenna, and

then ran off.
FCPD
report.
warrant

officer

Clark

Gagnon

responded

to

Cannon’s

assault

After interviewing Cannon, Gagnon obtained an arrest
for

Twinam

for

assault

and

destruction

of

property.

Based on a records check, Gagnon learned that Twinam had prior
arrests

in

2007

and

2008

possession of marijuana.

for

destruction

of

property

and

FCPD records indicated that Twinam’s

address was 205 Grove Avenue in Falls Church.

Gagnon radioed

other on-duty FCPD officers to request assistance in arresting
Twinam; FCPD officers Jannie Clipp and Alan Freed each responded
that they would assist.
Both Clipp and Freed arrived at the house at 205 Grove
Avenue

before

Gagnon,

a

few

minutes

after

midnight.

Clipp

proceeded to the front door; Freed went to the side of the house
where steps led up to a covered porch and a side door.

Freed

encountered Twinam, who was sitting on the side porch steps.
After ascertaining Twinam’s identity, Freed told him that they
had a warrant for his arrest.

Twinam responded by running into
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the

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house

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and

shutting

and

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locking

shouted “Mom, the cops are here”!

the

side

door.

J.A. 460.

Twinam

Clipp (at the

front door) and Freed (at the side door) began knocking loudly
and ringing the doorbell.

B.
Graham,

Twinam’s

56-year-old

mother,

had

upstairs and was awakened by the commotion.

been

asleep

She “grabbed a

robe,” J.A. 52, and came downstairs to find “a lot of pounding
and yelling” at the front door as well as “pounding” at the side
door.

J.A. 53.

crazily.”

The family dog was “at this point barking

J.A.

54.

She

did

not

open

the

side

proceeded to the front door in the living room.

door,

but

Graham opened

the front door, which consisted of both a main wooden door and a
storm door on an air pump.
Clipp told Graham that they had a warrant and were there to
arrest Twinam.

Graham asked to see the warrant and Clipp told

her that the officers did not have the warrant with them.

At

some point Freed joined Clipp at the front door; both officers
told Graham that she needed to produce Twinam to be taken into
custody.

Graham said, “[L]et me speak with my son,” J.A. 77,

and left the doorway to go find him.
practice,

placed

her

foot

in

the

3

Clipp, following standard
doorway;

the

storm

door,

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closing automatically on the air pump, “then came in contact
with [her] foot.”

J.A. 28, 82.

Graham found her son, Twinam, in the kitchen, talking to
his girlfriend on his cellphone.

The kitchen was not visible

from

was

the

front

door.

Twinam

apparently

girlfriend whether he ought to try and run for it.
“[W]hy would you do that?

That’s just dumb.”

asking

Graham said:
J.A. 69.

told Twinam, “[Y]ou need to come now, you need to cooperate.
don’t know what the issue is but you’ve got to go.”
At

some

point

while

Graham

was

in

the

his

She
I

J.A. 71.

kitchen,

Gagnon

arrived at the house and joined Clipp and Freed at the front
door.

Graham returned to the front door and told the officers

that “[she] was talking to [her son] and trying to get him to
come out.”

J.A. 73.

At some point Graham’s fiancé, Richard

Lilitch, who had also been asleep upstairs, came downstairs to
the living room.
Graham and Lilitch returned to the kitchen and convinced
Twinam to go out to the police officers.

The most direct route

from the kitchen to the living room passed through a pantry
area.

The pantry had doggie gates at either end to pen in the

family dog.

Twinam stepped over the first gate, followed by

Graham and then Lilitch.

As Twinam stepped over the second

gate, he came into view of the officers at the front door.
Gagnon and Freed entered the house and grabbed Twinam; in the
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process, Twinam and Freed tripped on the doggie gate and wound
up on the floor.
into custody.

The officers handcuffed Twinam and took him

About six or seven minutes had elapsed since

Graham had been awakened from her sleep.

C.
Gagnon took Twinam to the city detention center for booking
and turned him over to the sheriff.

Gagnon then went to the

duty magistrate and applied for an arrest warrant for Graham.
Gagnon sought to arrest Graham for obstruction of justice under
Virginia Code § 18.2-460(A).

The Virginia statute provides:

“If any person without just cause knowingly obstructs . . . any
law-enforcement officer . . . in the performance of his duties
as such . . . he shall be guilty of a Class 1 misdemeanor.”

Id.

The magistrate denied the warrant application.

D.
The three FCPD officers’ next shift together was a couple
days later.
magistrate
Graham.

At roll call, Gagnon told Clipp and Freed that the
had

denied

his

request

for

an

arrest

warrant

for

Clipp expressed surprise, telling Gagnon that Graham

“pretty much tried to shut the door on [me] and actually hit
[me] with the door.”

J.A. 164.

Gagnon had not previously been

aware of this information: he had not arrived at Graham’s house
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by that point and neither Clipp nor Freed had reported it over
the radio.
Gagnon

went

before

the

duty

magistrate,

a

different

individual than the magistrate who had denied his first warrant
request.

Gagnon

previously

been

told

denied

the
an

second
arrest

magistrate

warrant,

that

magistrate that he had learned new information.

had

informed

but

he

the

Gagnon told the

second magistrate “something like” “Ms. Graham had shut the door
on Officer Clipp’s foot.”

J.A. 170-71.

The second magistrate

authorized an arrest warrant for Graham.
Gagnon arrested Graham outside her home on September 20,
2012.

She

personal

was

brought

recognizance.

before
The

a

magistrate

charge

was

later

and

released

dismissed

on

with

prejudice and the record of her arrest expunged.

E.
About

a

year

later,

complaint with the FCPD.

Graham

filed

an

administrative

The complaint was investigated by an

internal affairs officer, who interviewed the officers involved
and issued a recommendation against further action.
Chief,

Mary

Gavin,

conveyed

this

letter dated November 8, 2013.

conclusion

to

The FCPD

Graham

in

a

Gavin told Graham that “[t]he

incident involved an arrest situation of an individual that was
evading arrest in your residence.
6

The officers were reacting to

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a situation that was becoming increasingly difficult because of
your actions.”
Graham

J.A. 27.

subsequently

filed

suit

pursuant to 42 U.S.C. § 1983.

against

Gagnon

and

Clipp

She alleged that the officers

violated her Fourth Amendment rights by arresting her without
probable

cause

obstruction
after

to

statute.

which

the

suspect
The

parties

she

district

had

violated

court

cross-moved

for

Virginia’s

oversaw

discovery,

summary

judgment.

Graham argued that on any view of the facts it was objectively
unreasonable for an officer to conclude there was probable cause
to arrest her.

The officers contended the opposite and asserted

that they were protected by qualified immunity.
The
rebutted

district
“the

court

presumption

found
of

that

nothing

reasonableness

in

that

issuance of a warrant by a neutral magistrate.”

the

record

attends

J.A. 465.

district court further found that:
[I]t cannot be said on this record that the magistrate
was so obviously in error that any reasonable officer
would have recognized the error. . . .
There is a
continuum of behavior from mere passive lack of
cooperation to active attempts to prevent an arrest
and it is the magistrate’s responsibility to determine
whether or not the facts and circumstances reported to
her
fall
on
the
probable
cause
side
of
this
continuum. . . .
The events at the Twinam/Graham residence were not so
clearly passive noncooperation that no reasonably
competent officer would have concluded that a warrant
should issue. . . . Defendants, it appears, believed
that when plaintiff left the front door to speak with
7

the
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her son in the kitchen she was openly encouraging her
son not to cooperate with [them] and come out of the
house.
Given the officers’ inability to see or hear
plaintiff’s conversation, the magistrate’s decision
was not so obviously in error that defendants should
be liable for failing to question her judgment.
J.A. 467-68 (citations omitted).

The district court accordingly

granted the officers’ summary judgment motion on the basis of
qualified

immunity

and

denied

Graham’s

cross-motion

as

moot.

Graham timely appealed.

II.
Whether

a

party

is

entitled

to

summary

judgment

is

a

question of law we review de novo.

Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc).

The district court’s grant

of summary judgment to the officers was appropriate only if,
taking

the

evidence

and

all

reasonable

inferences

drawn

therefrom in the light most favorable to Graham, no material
facts were disputed and the officers were entitled to qualified
immunity as a matter of law.

See id.

III.
“The

doctrine

of

qualified

immunity

protects

government

officials ‘from liability for civil damages insofar as their
conduct

does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would have

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known.’”

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Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

In practical

effect, qualified immunity “gives government officials breathing
room to make reasonable but mistaken judgments.”

Messerschmidt

v. Millender, 132 S. Ct. 1235, 1244 (2012) (citation omitted).
This

allowance

“balanc[ing]

two

for

reasonable

important

mistakes

interests—the

is

the

need

to

product
hold

of

public

officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”

Pearson,

555 U.S. at 231.
The shield of qualified immunity is lost when a government
official (1) violates a constitutional right and (2) that right
was clearly established.

See, e.g., Merchant, 677 F.3d at 661.

The right at issue here is not the general right to be free from
arrest without probable cause, but rather the right to be free
from

arrest

under

the

particular

circumstances

of

the

case.

See, e.g., Pritchett v. Alford, 973 F.2d 307, 313-14 (4th Cir.
1992). 1

The

appellee

officers

1

lose

the

shield

of

qualified

Framing the right as the general right to be free from
arrest without probable cause would frustrate the purpose of
qualified immunity.
It is clearly established that the Fourth
Amendment prohibits police officers from arresting individuals
without probable cause.
See, e.g., McAfee v. Boczar, 738 F.3d
81, 87 (4th Cir. 2013); Miller v. Prince George’s Cty., 475 F.3d
621, 627 (4th Cir. 2007).
But framing the right at that level
(Continued)
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immunity if it would have been clear to reasonable officers in
their position that they lacked probable cause to arrest Graham
for violating Virginia’s obstruction of justice statute.

See

id.

the

In

other

words,

the

officers’

immunity

turns

on

“objective legal reasonableness” of their conclusion that there
was probable cause to arrest Graham.

See Messerschmidt, 132 S.

Ct. at 1245.

IV.
Graham

argues

that

it

was

objectively

unreasonable

for

Gagnon and Clipp to conclude there was probable cause to arrest
her.

Therefore,

Graham

argues,

the

district

court

erred

in

holding that the officers were entitled to qualified immunity.
We agree.

A.
Before

evaluating

the

reasonableness

of

the

officers’

probable cause determination, we first clarify the effect of the

of generality would mean that the “clearly established” prong
would automatically be met in every suit alleging an arrest
without probable cause.
The immunity analysis would then turn
solely on whether the officer correctly concluded that probable
cause existed, eliminating the “breathing room” to make
reasonable mistakes.
Qualified immunity does not shield
officials from liability for all of their mistakes, but it does
shield them when their mistakes were reasonable.
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arrest warrant.

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The officers make much of the fact that Gagnon

obtained—at least the second time he asked—an arrest warrant
from a neutral magistrate.
automatically

immunized

However, an arresting officer is not

from

suit

merely

because

the

officer

successfully requested an arrest warrant first.
“[T]he fact that a neutral magistrate has issued a warrant
is

the

clearest

indication

that

the

officers

acted

in

an

objectively reasonable manner . . . . [but] the fact that a
neutral

magistrate

has

issued

a

warrant

authorizing

the

allegedly unconstitutional search or seizure does not end the
inquiry

into

objective

S. Ct. at 1245. 2
civil

suit

when

reasonableness.”

Messerschmidt,

132

For example, a warrant will not preclude a
“it

is

obvious

that

no

reasonably

competent

officer would have concluded that a warrant should issue.”
(quoting Malley, 475 U.S. at 341).

Id.

The Malley Court explained:

[I]t goes without saying that where a magistrate acts
mistakenly in issuing a warrant but within the range
of professional competence of a magistrate, the
officer who requested the warrant cannot be held
liable.
But it is different if no officer of
reasonable
competence
would
have
requested
the
warrant, i.e., his request is outside the range of the
2

Messerschmidt was a search, vice seizure, case, but the
same standard is applicable in both contexts.
See, e.g.,
Messerschmidt, 132 S. Ct. at 1245 n.1 (explaining that “the same
standard of objective reasonableness” applied in suppressionhearing cases “defines the qualified immunity accorded an
officer who obtained or relied on an allegedly invalid warrant”
and citing Malley v. Briggs, 475 U.S. 335, 344 (1986), an arrest
case).
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professional competence expected of an officer.
If
the magistrate issues the warrant in such a case, his
action is not just a reasonable mistake, but an
unacceptable error indicating gross incompetence or
neglect of duty.
The officer then cannot excuse his
own default by pointing to the greater incompetence of
the magistrate.
475 U.S. at 346 n.9. 3
we

have

repeatedly

Consistent with Malley and Messerschmidt,
held

that

arrest

warrants

do

not

confer

immunity if it was objectively unreasonable to conclude there
was probable cause for the arrest.

See, e.g., Merchant, 677

F.3d at 665-66; McAfee, 738 F.3d at 87.

Accordingly, if the

officers’ decision to request a warrant for Graham’s arrest was
outside

the

range

of

professional

competence

expected

of

an

officer—that is, if it was objectively unreasonable to conclude
there

was

probable

cause

that

Graham

violated

Virginia’s

obstruction statute—then the officers are not immune from suit.

3

The Malley Court also stated that “[i]t is a sound
presumption that the magistrate is more qualified than the
police officer to make a probable cause determination.” Malley,
475 U.S. at 346 n.9 (citation omitted). Malley does not clarify
the effect on qualified immunity when that presumption is
rebutted. As the district court noted, in Virginia “magistrates
need not be members of the bar or trained lawyers.”
J.A. 464
n.4 (citing the Supreme Court of Virginia’s Magistrate Manual).
The record does not disclose the identity of the magistrates
involved in this case, but we need not decide whether the Malley
presumption holds as our conclusion here does not turn on the
magistrates’ qualifications.
We therefore presume that the
magistrates were in fact more qualified than the officers to
make a probable cause determination.
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B.
We now turn to the reasonableness of the officers’ probable
cause determination.

As we explained above, if a police officer

incorrectly determines that probable cause existed, the officer
does not necessarily lose the protection of qualified immunity.
If

the

probable

nevertheless
immunity.

cause

determination,

objectively

reasonable,

though

the

mistaken,

officer

should

was
enjoy

However, where the officer’s mistake was objectively

unreasonable, the officer may be subject to civil liability.
It

is

impossible

to

determine

whether

a

probable

cause

determination was mistaken—and, if so, whether such a mistake
was reasonable—without an understanding of what would constitute
probable cause under the circumstances.

“Whether probable cause

exists in a particular situation . . . always turns on two
factors in combination: the suspect’s conduct as known to the
officer, and the contours of the offense thought to be committed
by that conduct.”

Pritchett, 973 F.2d at 314; see also, e.g.,

McAfee, 738 F.3d at 87; Sevigny v. Dicksey, 846 F.2d 953, 956-57
(4th Cir. 1988).

Thus, we ask:

(1) what did Clipp and Gagnon

know of Graham’s conduct?; and (2) what are the contours of the
conduct

proscribed

by

Virginia’s

obstruction

statute?

By

comparing Graham’s known conduct to the conduct proscribed by
the Virginia statute, we can then assess the reasonableness of
the officers’ decision to seek Graham’s arrest.
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1.
In determining what conduct of Graham’s was known to the
officers, we consider only “information actually possessed by
the officer[s] at the critical time, or that was then reasonably
available to [them], and in light of any exigencies of time and
circumstance that reasonably may have affected the officer[s’]
perceptions.”
In

other

officers

Pritchett, 973 F.2d at 312 (citations omitted).

words,
that

we

not

impute

did

they

do

not

have

factual

or

that

knowledge
was

not

to

the

reasonably

available to them.

Facts may later be discovered that would

have

to

made

committed;

it

clear

but,

if

the

those

officers

facts

were

that
not

no

crime

known

or

had

been

reasonably

available to the officers before the arrest, we do not include
those facts in the qualified immunity calculus.
We are mindful, however, that this case is before us on the
officers’

summary

judgment

motion.

We

therefore

take

the

evidence and all reasonable inferences to be drawn therefrom in
the light most favorable to Graham.

Henry, 652 F.3d at 531.

We

have explained that “[t]he importance of summary judgment in
qualified

immunity

cases

‘does

not

mean

.

.

.

that

summary

judgment doctrine is to be skewed from its ordinary operation to
give

special

substantive

favor

to

the

defense.’”

Wilson

v.

Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (quoting Pritchett,
973 F.2d at 313).
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The operation of these principles to the record here is
straightforward:

the officers are assumed to have possessed the

information they would have had if events unfolded as Graham
asserts.

For example, the parties dispute the time that elapsed

from Graham being awakened until Twinam was in custody:

the

officers assert it was approximately 15-20 minutes while Graham
puts the length of her involvement on the order of 6-7 minutes.
Compare Appellees’ Br. 8, with Appellant’s Br. 15-16.

On the

officers’ summary judgment motion, we assume Graham’s version of
the

timeline. 4

possessed”

the

We

thus

assume

information

that

that
the

the

officers’

total

time

of

“actually
Graham’s

involvement was no more than about seven minutes.
The factual version of events we laid out early in the
opinion is Graham’s version.

This is the version from which the

officers are assumed to have gathered the information they could
use to determine whether there was probable cause that Graham

4

“[W]hen documentary evidence ‘blatantly contradict[s]’ a
[party’s] account ‘so that no reasonable jury could believe it,’
a court should not credit [that party’s] version on summary
judgment.” Witt v. W. Va. State Police, Troop 2, 633 F.3d 272,
276-77 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)).
The record includes recordings of the officers’
radio communications on the night of Twinam’s arrest.
The log
of those recordings is time-stamped and thus enables at least a
partial reconstruction of the timing of events. Having reviewed
these recordings, we observe that the recordings are consistent
with—rather than contradictory to—Graham’s timeline.
The time
stamps cast serious doubt on the viability of the officers’
account of the time.
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had committed a crime.

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However, not every fact in Graham’s

account of the evening is assumed to have been possessed by the
officers.

For example, on summary judgment we accept Graham’s

assertion that, while in her kitchen, she was encouraging her
son to cooperate and surrender himself.

But the kitchen was out

of sight and earshot of the officers at the front door.

It

would thus be inappropriate to assume the officers “actually
possessed” the details of that conversation.

Put another way,

even assuming events unfolded as Graham asserts, the officers
would still not have “actually possessed” information about a
conversation they were not in a position to hear.
The district court correctly did not charge the officers
with

knowledge

simply

of

leaving

analysis,

the

officers’

that

the

conversation.

content

district

subjective

it

appears,

the

court

instead

beliefs

about

happening in Graham’s kitchen.
officers],

of

However,

conversation
improperly
what

rather
out

than

of

the

credited

the

might

have

been

The district court stated, “[The

believed

that

when

[Graham]

left

the

front door to speak with her son in the kitchen she was openly
encouraging her son not to cooperate with them and come out of
the house.”

J.A. 468 (citation omitted).

We have repeatedly

explained that an officer’s subjective belief is not legally
relevant

to

the

probable

cause

analysis.

“Because

probable

cause is an objective test, we examine the facts within the
16

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knowledge

of

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arresting

Pg: 18 of 30

officers

to

determine

whether

they

provide a probability on which reasonable and prudent persons
would

act;

we

do

not

examine

the

subjective

beliefs

of

the

arresting officers to determine whether they thought that the
facts constituted probable cause.”

United States v. Gray, 137

F.3d 765, 769 (4th Cir. 1998) (collecting cases); cf. Henry, 652
F.3d

at

objective

535

(“[O]ur

analysis

of

Court

has

qualified

consistently

immunity

claims

conducted
and

an

stressed

that an officer’s subjective intent or beliefs play no role.”).
The officers could still have incorporated a suspicion that
Graham was encouraging her son to flee into their probable cause
calculation if it was objectively reasonable to suspect so—that
is, if a person “of reasonable caution . . . [would] believ[e]
[it], in the circumstances.”
U.S. 31, 37 (1979).

See Michigan v. DeFillippo, 443

Here, however, the officers do not point to

any factual circumstance that would make a person of reasonable
caution believe Graham was inciting her son to flight.
summary judgment purposes:

For

(1) Graham told the officers, “[L]et

me speak with my son and get him,” J.A. 77; (2) Graham walked
into the house and then returned within a minute or so, telling
the officers that she “was talking to [her son] and trying to
get him to come out,” J.A. 73; and (3) Graham again walked into
the house and within another minute or so her son was walking
into view of the officers at the front door where he was taken
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into custody.

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J.A. 74.

Pg: 19 of 30

These facts are not flatly incompatible

with a reality in which Graham was in the kitchen encouraging
her son to flee arrest:

Graham could have been repeatedly lying

to the officers, and her sagacious son might have decided to
give himself up against the advice of his mother.

But if the

officers believed that Graham was encouraging Twinam to flee, 5
that

belief

was,

at

best,

a

hunch,

and

“a

mere

hunch

that

illegal activity is afoot . . . [is not] probable cause.”

Doe

v. Broderick, 225 F.3d 440, 452 (4th Cir. 2000) (citing United
States v. Sokolow, 490 U.S. 1, 7 (1989)). 6

5

We find it difficult to reconcile such a belief with the
actions of the officers here.
If the officers believed Graham
was actively encouraging her son to flee arrest, it strikes us
as odd that they would not, at the very least, have asked her to
stop doing so when she returned to the front door.
Any number
of other actions, such as, for example, having one of the three
officers watch the back door, might also have been consistent
with a belief that a footrace was imminent.
6

Even if Graham had been suggesting her son leg it out the
back door, it is not at all clear that such encouragement would
have put Graham in violation of the Virginia obstruction
statute.
In Atkins v. Commonwealth, police officers were
attempting to detain Atkins on suspicion of stealing a car. 678
S.E.2d 834, 835 (Va. Ct. App. 2009).
Atkins fled from the
officers into nearby woods, where he eluded capture for four
hours. Id. The Virginia Court of Appeals held that these facts
were
legally
insufficient
to
establish
obstruction
under
Virginia Code § 18.2-460(A).
Id.
If actual flight is not
obstruction, it would be odd if suggested flight was.
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2.
We turn now to the contours of the conduct proscribed by
the

Virginia

obstruction

statute.

Graham was arrested states:

The

statute

under

which

“If any person without just cause

knowingly obstructs . . . any law-enforcement officer . . . in
the performance of his duties as such . . . he shall be guilty
of a Class 1 misdemeanor.”

Va. Code Ann. § 18.2-460(A).

This

sparse language could be read in the first instance to proscribe
a wide ambit of conduct, although we would still struggle to fit
Graham’s conduct within that ambit.

At an absolute minimum,

something she did must have “obstructed” an attempted action of
one of the officers.
action

by

the

“obstructed”

by

We cannot find in the record any attempted

officers
Graham,

that
and

could
the

be

said

officers’

to
brief

have

been

and

oral

argument are likewise missing even a suggested action that was
actually obstructed.
Regardless,
statute.

we

are

not

the

first

court

to

read

this

Both the Virginia courts and this Court have applied

the statute many times before, and there is a small mountain of
caselaw that makes clear that whatever the outer boundary of
Virginia Code § 18.2-460(A), Graham came nowhere near it.

In

Wilson, we explained that “[t]he Virginia courts . . . have
subjected the Statute to a limiting construction, under which a
person must do more than merely render an arrest more difficult
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or inconvenient than it might otherwise have been . . . in order
to be criminally liable.”

337 F.3d at 399 (citing Ruckman v.

Commonwealth, 505 S.E.2d 388, 389 (Va. Ct. App. 1998)).

We

further

of

explained

that

“[t]he

stringent

definition

obstruction that appears in Ruckman is nothing new to Virginia’s
jurisprudence,”

and

we

continued

by

noting

that

“[w]e

have

acknowledged the distinction that the Virginia courts have long
drawn

between

conduct

that

merely

impedes

or

frustrates

the

officer, which does not ground liability under the Obstruction
Statute, and conduct that intentionally thwarts or prevents an
arrest,

which

does.”

Id.

at

399-400

(citing

Rogers

v.

Pendleton, 249 F.3d 279, 291 (4th Cir. 2001)); accord, e.g.,
Jordan v. Commonwealth, 643 S.E.2d 166, 171 (Va. 2007).
did

not

apparent

thwart
that

or
she

prevent
impeded

Twinam’s
or

arrest;

frustrated

it

it

is

Graham

far

either.

from
Under

Virginia law, it is clear there was no probable cause to arrest
Graham for obstruction of justice.
The officers advance the idea that Graham was less than
fully

cooperative

difficult.
the

FCPD

or

that

her

actions

made

their

task

more

This was exactly the theory conveyed to Graham by
Chief

after

Graham

complained

about

the

officers’

actions; Chief Gavin explained to Graham that Gavin felt her
officers were right to arrest Graham because they “were reacting
to a situation that was becoming increasingly difficult because
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of your actions.”

J.A. 27.

Pg: 22 of 30

Even if Graham did make things more

difficult, 7 it is beyond debate that such conduct does not fall
within Virginia’s obstruction statute:
requires

‘actual

hindrance

or

“[Section] 18.2–460(A)

obstruction

of

‘opposition or resistance by direct action.’

the

officer,’

‘[O]bstruction of

justice does not occur when a person fails to cooperate fully
with an officer or when the person’s conduct merely renders the
officer’s task more difficult’ or ‘frustrate[s] [his or her]
investigation.’”

Rogers,

249

F.3d

at

291

(quoting

Polk

v.

Commonwealth, 358 S.E.2d 770, 772–73 (Va. Ct. App. 1987), and
Ruckman,

505

unreasonable

S.E.2d
to

at

conclude

389,

390).

anything

other

It
than

conduct fell well outside the Virginia statute.

is

objectively

that

Graham’s

Accord, e.g.,

Kee v. City of Hampton, No. 2597-08-1, 2009 WL 3734053, at *3

7

The officers do not make clear what about Graham’s conduct
made the arrest more difficult.
At oral argument, counsel for
the officers suggested that it would have been unproblematic had
Graham simply stayed in bed rather than coming downstairs and
opening the front door.
It seems extremely unlikely that
Graham’s actual conduct in coming downstairs did not make
Twinam’s arrest at least marginally less difficult for the
officers than had she put in earplugs and kept snoozing.
Regardless, once she opened the door and the officers asked her
to produce her son, it is unclear what the officers expected her
to do. Graham was about 56 years old and Twinam was about 21.
The officers could not have reasonably expected Graham to
physically wrestle her son to the front door.
Graham was left
to the power of her persuasion, a power she successfully used to
compel her son into custody within a matter of minutes.
Graham’s conduct strikes us as about as helpful as could be
expected.
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(Va. Ct. App. Nov. 10, 2009) (“[A]ppellant, by initially not
allowing

the

police

[domestic

abuse]

cooperate

with

officer

into

investigation
the

more

officer.

There

appellant to resist the officer.
that

such

indirect

acts

his

are

house,

merely

difficult

by

was

no

made

failing

direct

act

the
to
by

Courts have repeatedly held
not

enough

to

constitute

obstruction.” (collecting cases)).
The district court acknowledged some of these cases in a
footnote.

It further acknowledged Graham’s argument that those

cases establish that the facts here did not amount to probable
cause,

and

characterized

insubstantial.”

that

J.A. 466-67.

argument

as

“not

plainly

The district court nevertheless

found the officers were entitled to qualified immunity after
concluding,
reasonable.

essentially,

that

the

officers’

mistake

was

It was not.

The district court summarized Virginia law thusly:

“Mere

passive lack of cooperation does not constitute probable cause,
whereas

active

refusal

to

cooperate,

including

making

active

efforts to prevent the arrest from taking place, clearly may
amount

to

obstruction.”

J.A.

467.

Even

if

this

statement

correctly characterized Virginia law, we think it would still be
objectively unreasonable to conclude Graham made “active efforts
to prevent the arrest from taking place.”
correctly

characterize

Virginia
22

law.

As

But it does not
just

one

example,

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Atkins held

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a

that

Pg: 24 of 30

flees

suspect

who

officers

attempting

to

detain him, and then hides out in the woods for four hours
evading the officers, cannot be convicted under the obstruction
statute.

678 S.E.2d at 835.

Atkins’s actions appear to fall

squarely at the “active efforts” end of the district court’s
obstruction continuum, but such actions have been clearly held
to fall outside the statute.
The

district

court’s

unworkable in practice.
front

door

individual

to

also

strikes

us

as

If an individual refuses to open her

officers

“passively

formulation

attempting

not

refusing to cooperate”?

opening

to
the

investigate,
door”

or

is

the

“actively

Cf. Kee, 2009 WL 3734053, at *3.

These

difficulties are illustrated by Appellees’ contention at oral
argument that Graham could not have been arrested had she stayed
upstairs and refused to open the door, a set of circumstances
that we think would have made Twinam’s arrest more difficult
than what actually occurred.
with

the

semantics

of

Courts, however, need not struggle

“activity”

and

“passivity”;

as

we

explained earlier, obstruction under the Virginia statute does
not turn on such characterizations.
Finally, we address the officers’ contention that “Graham’s
argument that she did not obstruct justice under Virginia Code
§ 18.2-460, and that there was no probable cause for her arrest
under that statute, is irrelevant.”
23

Appellees’ Br. 15.

It is

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true that an actual lack of probable cause is not dispositive
for

qualified

immunity

purposes;

qualified

immunity

protects

officers who make mistakes if those mistakes are reasonable.
But the officers’ contention misses the point.

The boundaries

of

assessment

the

statute

are

extremely

relevant

to

an

of

whether a mistake was reasonable.
The officers’ misconception may explain why they cite next
to no cases discussing the substantive scope of the Virginia
statute.

The officers cite Polk for the proposition that “an

offender need not actually obstruct an officer to be guilty of
obstruction

of

justice—an

offender’s

constitutes a substantive offense.”

mere

attempt

to

Appellees’ Br. 28.

do

so

As an

initial matter—and as the officers acknowledge—Polk was applying
a

different

intimidate

statute

or

impede

threats, or force.”

that
a

.

criminalized

.

.

“attempt[ing]

law-enforcement

See 358 S.E.2d at 771 n.1.

officer”

to
“by

It is unclear

what support the officers seek from Polk, but the court there
specifically contrasted the threats statute with other Virginia
statutes—such

as

‘obstruction.’”
If
justice

the
in

mistaken.

the

at

issue

here—“requiring

actual

Id. at 772-773.

officers
the

one

same

are

suggesting

manner

as

that

Polk—i.e.,

Graham

obstructed

verbally—they

are

Polk was convicted under the threats statute after

repeatedly threatening to kill his arresting officer.
24

Id. at

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Graham was arrested pursuant to the obstruction statute,

and there is no contention that her verbal interaction with the
officers

was

anything

other

than

peaceful.

As

we

have

explained:
Peaceful verbal criticism of an officer who is making
an
arrest
cannot
be
targeted
under
a
general
obstruction of justice statute such as Virginia’s
without running afoul of the First Amendment:
“The
Constitution does not allow such speech to be made a
crime.
The freedom of individuals verbally to oppose
or challenge police action without thereby risking
arrest is one of the principal characteristics by
which we distinguish a free nation from a police
state.”
Wilson, 337 F.3d at 399 n.3 (quoting City of Houston v. Hill,
482

U.S.

451,

462–63

(1987)).

We

therefore

reject

any

contention that Graham’s arrest might have been justified by
non-violent criticism of the officers.

3.
Numerous decisions of the Virginia courts and this Court
provide guidance on the scope of Virginia Code § 18.2-460(A).
There

are

undoubtedly

still

gray

areas

at

the

statute’s

boundaries, meaning that officers enforcing it will at times
face close cases.

This was not one of those cases.

Given

Graham’s known conduct, it would have been clear to reasonable
officers in Appellees’ position that they lacked probable cause
to

arrest

Graham

for

obstruction

25

of

justice.

We

therefore

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reverse the district court’s grant of summary judgment to Gagnon
and Clipp.

V.
Graham
summary

asks

us

judgment

to

for

direct
her

determination of damages.

the

and

district

to

remand

court

to

solely

enter
for

a

Graham argues that if we find the

officers clearly violated her constitutional rights, there are
no remaining liability issues to try.

The problem with this

argument is that we concluded the officers clearly violated her
rights when the disputed facts are viewed in the light most
favorable to her.

Graham is entitled to summary judgment only

if the same conclusion obtains when viewing the facts in the
light most favorable to the arresting officers.
at

531.

The

district

Graham’s motion.
appropriate

to

court

J.A. 468.
remand

the

did

not

rule

on

Henry, 652 F.3d
the

merits

of

Under the circumstances, it is
case

for

the

district

court

to

consider her motion—under the correct legal standards explained
above—in the first instance.

VI.
Finally, we return to the officers’ oft-repeated argument
that “it was reasonable for them to rely on the magistrate’s
finding of probable cause and issuance of an arrest warrant.”
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E.g., Appellees’ Br. 30-31.

Pg: 28 of 30

We have already explained why it

was unreasonable to do so here.
the

fact

that

magistrate.
denied

the

the

That

officers

received

magistrate,

warrant

But their argument also elides

to

application,

guidance

whom
J.A.

Gagnon
462,

from
first

thus

another
applied,

putting

the

officers on notice that probable cause was lacking.
The

district

court

observed

that,

unlike

federal

law,

“Virginia law does not require officers seeking arrest warrants
to do so by way of written declarations or sworn affidavits,”
J.A. 466 n.6 (citing Va. Code Ann. § 19.2-72), and that “[n]o
written record of the facts presented to the magistrates exists
here.”
a

Id.

warrant

Graham suggests that Gagnon was only able to obtain
from

the

second

magistrate

by

magistrate about the events of that night.

misleading

the

The district court

correctly noted that the record does not contain any evidence of
false

statements

on

Gagnon’s

part.

Of

course,

with

no

requirement that warrant applications be recorded, how could it?
We have assumed that Gagnon fairly presented the facts to
both

magistrates.

If

that

was

indeed

the

case,

the

second

warrant application would have been identical to the first, with
the

exception

that

Gagnon

could

have

also

additional fact of the storm door closing.

recounted

the

As to the door

closing, this is how Clipp described it during her deposition:

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Q. Did [Graham] attempt to force the door—to push your
foot with the door notwithstanding your having told her
that she needed to keep the door closed (sic)?
No. 8

A.

. . . .
Q. Your foot was not injured by the door touching it,
was it?
A.

No.

Q.

No.

Was the shoe scuffed?

A.
No.
I mean, I didn’t inspect it after that;
but . . . it wasn’t anything significant.
J.A. 240-41, 254.
Having been told by the initial magistrate that there was
no

probable

cause

to

arrest

Graham,

the

officers

must

have

concluded the door-closing tipped the probable cause scales.
We find it hard to take this very seriously.

*

*

*

8

*

*

The FCPD Chief had apparently been given a
impression. At her deposition, Chief Gavin testified:

different

A.
I – as far as [Graham’s] action[] was, as I
understood, was pushing the door back onto Officer
Clipp’s foot.
Q. Is that the screen door that closed on her foot?
A. I believe so.
J.A. 422.
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For

the

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reasons

above,

we

Pg: 30 of 30

reverse

the

district

court’s

grant of summary judgment to Appellees and remand.

REVERSED AND REMANDED

29