Garcia v. Montgomery County, Maryland et al
Filing
71
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 11/5/2015. (bus, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
MANNIE GARCIA,
Plaintiff,
v.
MONTGOMERY COUNTY, MARYLAND,
OFFICER CHRISTOPHER MALOUF, in his
official and individual capacities,
OFFICER KEVIN BAXTER, in his official
and individual capacities,
and
CHIEF OF POLICE THOMAS MANGER, in
his official capacity,
Civil Action No. TDC-12-3592
Defendants.
MEMORANDUM OPINION
Plaintiff Mannie Garcia, an award-winning photojournalist, alleges that, in June 2011, he
was arrested by Montgomery County Police Department officers for disorderly conduct solely
because he was video recording them as they effected the arrest of two other people.
later found not guilty of that offense.
He was
Garcia asserts that by arresting him for filming, the
officers violated his rights under the First and Fourth Amendments to the Constitution.
Garcia
also contends that the video card in his camera, which contains the record of the events of that
night, was unlawfully seized by one of the officers and never returned.
In response to these
events, Garcia filed suit against the officers involved in his arrest, the Montgomery County
Police Department ("MCPD"), and various other MCPD officials, asserting claims under 42
U.S.C. ~ 1983 for the alleged First and Fourth Amendment violations relating to his arrest; a
First Amendment retaliation claim, based on his belief that various police officers were trying to
intimidate him out of pursuing legal action; several other statutory and common law actions; and
a 42 U.S.C.
S
1983 claim against the MCPD for unconstitutional policies, customs, and practices.
Defendants paint a very different picture of the events leading to Garcia's arrest, asserting
that Garcia was arrested not because he was video recording the police, but because, after a
police officer approached him to ask benign questions about what he was doing, Garcia began to
yell and curse, and continued to do so despite being asked repeatedly to quiet down. Defendants
also deny taking Garcia's video card. From their perspective, Garcia's arrest does not raise First
Amendment issues about the right to film police officers, but is instead an attempt to recast a
routine arrest for disorderly conduct as a case of constitutional significance.
Presently pending before the Court are Defendants' Motion for Summary Judgment, ECF
No. 62, and Garcia's Cross-Motion for Partial Summary Judgment, ECF No. 63.
heard oral argument on the motions on September 9, 2015.
The Court
For the reasons outlined below,
Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART,
and Garcia's Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN
PART.
BACKGROUND
I.
Video Recording of Police Activity
At about 7:30 p.m. on the evening of June 16,2011, Garcia and his wife, Vicky Allen,
met a friend for dinner at Woomi, a restaurant in Wheaton, Maryland near Georgia Avenue and
Hickerson Drive.
Nearby, at about 8:30 p.m., Carlos Grajeda and Lee Williams, members of
Montgomery County's Civilian Alcohol Enforcement squad, witnessed a man buying alcohol for
a minor. Grajeda and Williams put out a call for police officers to assist them in citing the two
2
individuals involved in the alcohol purchase. Officer Kevin Baxter and Officer Michael Graves,
each in his own patrol car, responded to the call.
Soon after Officers Baxter and Graves arrived, between 8:40 and 9:00 p.m., Garcia and
Allen left Woomi and headed back to their car, which was parked across the street from the
restaurant.
As Garcia crossed the street, he noticed the police officers and the alcohol suspects,
who were about 100 feet, or a block and a half, away. Garcia saw one of the officers get "a little
rough" with one of the men-the
camera and began video recording.
officer "sort of ... push[ edJ him"-so
Garcia took out his
Cross Mot. Sum. J. Ex. 2 (Garcia Deposition) at 30, ECF
No. 63-4; Mot. Sum. J. Ex. 4 (Garcia Deposition) at 27, ECF No. 62-7.1
Garcia was video
recording the scene with his Nikon Coolpix 7000, a camera capable of shooting both still
photographs and video.
Garcia caught Grajeda's attention.
Grajeda could see that Garcia had something in his
hands, but could not identify what it was, and, in Grajeda's estimation, Garcia was "acting
erratically."
Mot. Sum. J. Ex. 2 (Grajeda Deposition) at 5, ECF No. 62-5. Garcia's supposed
strange behavior "really concerned" Grajeda, in part because they were in a high-crime area. Id.
Garcia, for his part, maintains that he was behaving normally.
Grajeda pointed Garcia out to
Officer Baxter, who had not noticed him because he was in the middle of writing a citation for
one of the suspects.
When Officer Baxter caught sight of him, Garcia was in a "very dark"
section of the street, near an alleyway.
62-4.
Mot. Sum. J. Ex. 1 (Baxter Deposition) at 16, ECF No.
Garcia appeared to Officer Baxter to be trying to hide, behavior that Officer Baxter
thought was "suspicious."
Id. at 16-17.
1 Citations to exhibit page numbers are to the page numbers assigned by the Court's CM/ECF
filing system.
3
By this point, it was getting dark. Officer Baxter, wanting to get a better view of Garcia,
flashed his police cruiser's spotlight in Garcia's direction. Once Garcia was illuminated, Officer
Baxter could see that he was holding what appeared to be a camera.
Officer Baxter kept the
spotlight on Garcia for about 10 seconds, while he evaluated whether Garcia posed a threat to the
officers or nearby civilians.
Officer Baxter determined that Garcia was not doing anything
threatening, so he turned off the spotlight and returned to writing the citation.
After being
spotlighted, Garcia went back across the street, in front of Woomi.
According to Grajeda, as
Garcia ran across the street he was "belligerent" and was yelling.
Mot. Sum. J. Ex. 2 at 10.
Outside Woomi, Garcia put his camera down on a newspaper box-hoping
image-and
for a more stable
continued to film.
At that time, Malik and Efigenia Rashid were sitting in a nearby parked car with the
windows rolled up. Malik Rashid rolled down his window and politely asked Garcia what he
was doing, to which Garcia responded, "keeping [them] honest."
Mot. Sum. J. Ex. 4 at 32-33.
By that point, the arrest seemed like a "routine" detention: the two alcohol suspects were seated
on the curb, and the officers were no longer in physical contact with them. Jd at 40 ..43.
:
Garcia stayed near the newspaper box, outside Woomi, for two to three minutes before he
walked up the street towards the officers, stopping when he was directly across from them.
Garcia continued to record what was happening, narrating the events into his camera.
Officer
Graves, however, asserts that Garcia was yelling at both the officers and the Civilian Alcohol
Enforcement team, an assertion Garcia denies.
According to Officer Baxter, when Garcia set up across the street from them, he was
standing in another dark area, prompting Officer Baxter to again shine his spotlight on Garcia to
see what he was doing. Garcia then moved to a third location up the block, about 35 feet away
4
from the officers. As this was happening, Officer Graves began to feel that "something was [not]
right." Mot. Sum. J. Ex. 8 (Graves Deposition) at 14. ECF No. 62-11. Garcia was drawing "all
of o~r attention,"
leaving the officers "distracted"
from the task of processing the alcohol
suspects. Id. at 9. Officer Graves accordingly called for backup.
II.
The Arrest of Garcia
In response, Officer Christopher Malouf arrived on the scene.
He spoke briefly with
Officer Baxter, who informed him that there was "a subject across the street standing in the
shadows" who "was possibly filming." Mot. Sum. 1. Ex. 14 (Malouf Deposition) at 5, ECF No.
62-17. Officer Baxter remarked that he could not see Garcia clearly, so was not sure ifhe "posed
a threat or not," and that Garcia was "deterring" him from processing the alcohol suspects. Id.
Officer Malouf walked in Garcia's direction, but because of the darkness, he could not actually
see Garcia until he was about three to four feet away from him.
Once he was near Garcia,
Officer Malouf tried to ascertain what was going on, asking him, "Can I help you with
anything?" and "Is there any way I can assist you?" Id. at 15.
Garcia asserts that when Officer Malouf approached him and asked him what he was
doing, he promptly let go of his camera-which
he had on a strap around his neck--opened
up
his hands to show Officer Malouf that he was not holding anything, and stated, in a normal tone
of voice, "My name is Mannie Garcia and I'm with the press." Mot. Sum. J. Ex. 4 at 48, 50.
Although Garcia let go of his camera, it was still recording.
In response, Officer Malouf
promptly declared, "That's it, you're under arrest." Id. at 50-51.
Officer Malouf, however, tells a very different story.
He asserts that Garcia never
identified himself as a member of the press. Instead, Garcia said "I have a right to be here" and
"you can't tell me to move." Cross-Mot. Sum. 1. Ex 14 (Trial Transcript) at 55, ECF No. 63-16.
5
Garcia then "became disorderly," yelling curse words and refusing to answer questions.
Mot.
Sum. 1. Ex. 14 at 12. At that point, Officer Malouf moved closer to Garcia and warned him that
if he did not calm down, he would arrest him for disorderly conduct. Rather than calming down,
Garcia continued to yell and curse, at one point gesturing towards Officer Baxter while yelling,
"This fucking guy." Id at 17-18. After trying to calm Garcia down for several minutes without
success, Officer Malouf decided to arrest him for disorderly conduct, noting that everyone in the
vicinity was now focused on Garcia.
At some point-whether
unclear--others
before Officer Malouf decided to arrest Garcia or after is
also heard Garcia begin to yell. Efigenia Rashid heard Garcia yell so loudly
that, although her car windows were rolled up, it distracted her from the game she was playing
on her tablet.
Officer Baxter heard Garcia yell, "And this fucking guy" while gesturing in his
direction, Mot. Sum. 1. Ex. 1 at 19, while Grajeda heard Garcia yell, "[a]nd tell those fuckers to
leave me alone, or I'm going to ... ," id Ex. 2 at 12. Officer Graves also heard Garcia yelling.
Grajeda remembers Garcia "screaming and yelling" that he was with the press, id Ex. 2 at 13,
while Williams heard Garcia yelling something about his First Amendment rights and identifying
himself as a member of the press.
According to Garcia, when Officer Malouf arrested him, he promptly put Garcia into a
choke hold and began to drag him across the street, towards his police cruiser, an assertion
Officer Malouf disputes.
While they were in the middle of the street, Officer Baxter came up,
pulled Garcia's arms behind his back, and handcuffed him. As a result of the choke hold and
being pulled by both officers, Garcia tripped over the curb, falling on his left knee and tearing his
pants. As he was being held by the neck and dragged across the street, Garcia called out for his
6
wife and also yelled that Internal Affairs was "going to have a field day." Mot. Sum. J. Ex. 4 at
59,65.
Garcia further alleges that once they reached the cruiser, Officer Malouf shoved him
against the side of the car, causing him to hit the cruiser with a "hard impact." Cross-Mot Sum.
J. Ex. 2 at 58-59.
Officer Malouf then patted Garcia down.
As part of that process, Officer
Malouf instructed Garcia to spread his legs. When Garcia did so, Officer Malouf kicked out
Garcia's right foot, causing him to lose his balance and hit his head against the side of the cruiser
before falling to the ground.
While this was happening, Officer Malouf was mocking him,
asking him why he was falling down, and then laughing at him with the other officers.
The officers dispute Garcia's allegations relating to the use of force. Specifically, Officer
Malouf denies that he placed Garcia in a choke hold. Officer Baxter acknowledges that Garcia
fell as the officers took him across the street, but asserts that Garcia deliberately went limp, in an
effort to "fall to the ground unprompted."
Mot. Sum. 1. Ex. 1 at 21. Officer Baxter further
contends that once back at the cruiser, Garcia was "thrashing his body back and forth" against
the cruiser, in an attempt to injure himself, prompting Officer Malouf to subdue Garcia by
applying force to a pressure point on Garcia's neck. ld. at 22.
Meanwhile, Allen, Garcia's wife, began to approach the scene.
her to stay back or she would be arrested.
Officer Baxter warned
Garcia claims that, in response to Allen's approach,
Officer Baxter said, "If that fucking bitch takes one more step, I'm going to arrest her ass." Mot.
Sum. J. Ex. 4 at 68. In response, Garcia yelled to Allen to stay back, prompting Officer Malouf
to again apply force to a pressure point, pressing his thumb into Garcia's neck for about 10-15
seconds, causing Garcia to contort in pain and forcing his head into the side of the cruiser.
7
At some point during the arrest process, Garcia's camera was removed from around
Garcia's neck, and Officer Baxter took control of it. Pursuant to department policy, Officer
Baxter turned the camera off. He then placed it either in or on top of the cruiser.
Eventually, Officer Malouf placed Garcia in the cruiser and transported him to the police
station.
According to Garcia, while in the station parking lot, before taking Garcia inside,
Officer Malouf was "fiddling" with Garcia's camera, pressing various buttons and opening
various compartments, until he eventually found the video card. Mot. Sum. J. Ex. 4 at 70-71.
Garcia contends that Officer Malouf removed the video card and placed it in his shirt pocket.
Officer Malouf denies doing so. Officer Malouf took Garcia into the police station, then to the
Central Processing Unit, where his belongings were inventoried, he was fingerprinted, and his
mug shot was taken.
At about 3:30 a.m., Garcia was released from custody and picked up by his wife at the
Central Processing Unit.
While all of Garcia's other property was returned to him, the video
card from his camera was not.
Although Garcia contends that he was injured, he did not
immediately seek medical attention. Instead, he went home because, at that point, all he wanted
to do was shower and go to bed. In the days after his arrest, Garcia had bruising on his left knee
as a result of the incident, but did not have bruises on his neck.
III.
Post-Arrest Events
On December 16, 2011, Garcia proceeded to a bench trial in the District Court for
Montgomery County, Maryland on the charge of disorderly conduct. He was found not guilty.
Prior to that trial, Garcia filed a complaint with the MCPD Internal Affairs Division
against Officers Baxter and Malouf about the events of June 16, 2011.
After an investigation
into Garcia's allegations, the MCPD took no disciplinary action against either officer.
8
Garcia
contends that after he filed his Internal Affairs complaint, vanous
MCPD officers began
periodically to park near his house to observe and intimidate him. Specifically, Garcia alleges
that during the week of December 6, 2011, the week preceding his trial on the disorderly conduct
charge, he twice saw Officer Malouf parked in front of a house across the street from Garcia's
home.
That house had the same house number that Officer Malouf mistakenly entered as
Garcia's address on the June 16, 2011 incident report. Both times, Garcia saw Officer Malouf
remain there for 2-3 minutes, parked in such a way that his cruiser would not be visible to those
inside of the house.
On March 19,2013, Garcia saw another such police cruiser, this one parked across and
one house over from Garcia's home.
Garcia began to video record the occupant, Officer
Douglas Barros, because he believed the officer was there to observe him.
Officer Barros
contends that he was there doing paperwork, having just dealt with a disorderly conduct incident
on a bus nearby. Officer Barros eventually noticed that Garcia was video recording him, which
he thought was suspicious, since he had never before had someone film him doing paperwork.
Officer Barros went over to Garcia to "check up" on him and asked Garcia if he needed any help.
Cross Mot. Sum. J. Ex. 19 (Barros Deposition) at 10, ECF No. 63-21. In response, Garcia told
Officer Barros that he did not need any help and accused him of harassment.
Officer Barros
gave Garcia the name and phone number of his supervisor, then departed.
Garcia never
contacted the supervisor because he "did not want to have any more contact with the Police."
Cross Mot. Sum. J. Ex. 2 at 14.
Defendants deny that there was a police department campaign to observe and intimidate
Garcia. According to Officers Baxter and Malouf, Garcia's street is a shortcut to University
Boulevard, a major road, and Garcia's house is near a nursing home to which MCPD officers are
9
frequently called.
If there was any regular police presence on Garcia's street, they contend, it
was not because officers were there to intimidate Garcia, but because officers were using the
shortcut or responding to nursing home calls.
Garcia was, however, a topic of conversation among officers.
In the days prior to and
during Garcia's disorderly conduct trial, Officers Baxter and Graves exchanged a series of text
messages about those proceedings.
Prior to the trial they discussed whether Garcia would take a
guilty plea, with Officer Graves remarking that he "hope[ d]" Garcia would "take community
service," to which Officer Baxter replied that he though they "ha[d] a solid case."
Cross Mot.
Sum. J. Ex. 22 at 2, ECF No. 63-24. During the trial, Officer Graves texted Officer Baxter that
Officer Malouf, after seeing a "liquor guy" testify, declared that the case was "all bullshit."
Id.
At some point, Officers Baxter and Graves joked about going drinking with Garcia, with Officer
Baxter suggesting they "[d]o a couple saki bombs then go be disorderly," and Officer Graves
adding that they could then "make up a story to make millions and never work again." Id at 3.
After Garcia filed his civil suit, Officers Baxter and Graves again exchanged messages, with
Officer Graves informing Officer Baxter that the suit had been filed and, in response to Officer
Baxter's request, that he had emailedhim a link to a news story about the case. Id.at 4.
IV.
Procedural History
On December 7,2012, Garcia filed suit in this Court against Officers Baxter, Graves, and
Malouf, Montgomery
County, Police Chief Thomas Manger, and Lieutenant Mark Sheelor,
alleging eight causes of action: (I) a 42 U.S.C.
and Fourteenth Amendment
9
1983
("9
1983") claim for violation of his First
rights based on his allegation that he was arrested for video
recording police activity; (II) a
9
1983 claim for First Amendment retaliation; (III) a
9
1983
claim for violation of his Fourth and Fourteenth Amendment rights based on the allegation that
10
he was arrested and had his property seized without probable cause; (IV) a
S
1983 claim pursuant
to Monell v. Department o/Social Services o/the City o/New York, 436 U.S. 658 (1978), against
Montgomery County only; (V) a claim under the Privacy Protection Act, 42 U.S.C.
S 2000aa
et
seq.; (VI) a common law false arrest and false imprisonment claim; (VII) a common law
malicious prosecution claim; and (VIII) a common law battery claim against Officer Malouf
only. All individual defendants were sued in both their individual and official capacities, with
the exception of Chief Manger and Officer Graves, who were sued in their official capacities
only.
On August 23,2013, after Defendants moved to dismiss the Complaint, the Court (Motz,
J.) issued a Memorandum Opinion dismissing various defendants and claims, and bifurcating
some claims.
ECF No. 15. Specifically, the Court dismissed (1) all claims against Officer
Graves and Lt. Sheelor; (2) all claims against Officer Baxter, except the First Amendment and
retaliation claims; (3) the false arrest/false imprisonment
and malicious prosecution
claims
against Montgomery County and Chief Manger; (4) the Privacy Protection Act claim against all
defendants except Montgomery County; and (5) all claims against officers in their official
capacity, except for Chief Manger.
The Court bifurcated for purposes of discovery (1) all
remaining claims against Montgomery County, with the exception of the Privacy Protection Act
claim, and (2) all claims against Chief Manger.
On January 20, 2015, Defendants filed a Motion for Summary Judgment.
On February
19, 2015, Plaintiffs filed a Cross-Motion
ECF No. 62.
for Summary Judgment, to which
Defendants responded on March 24, 2015. ECF Nos. 63 & 64.
Plaintiffs filed a Reply
Memorandum on April 23, 2015. ECF No. 65. The Court heard oral argument on September 9,
2015.
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DISCUSSION
For purposes of the pending summary judgment motions, the claims and defendants at
issue are: (1) the First Amendment claims in Count I against Officer Baxter and Officer Malouf;
(2) the First Amendment retaliation claim in Count II against Officer Baxter and Officer Malouf;
(3) the Fourth Amendment claim in Count III against Officer Malouf; (4) the Privacy Protection
Act claim in Count V against Montgomery County; (5) the false arrest and false imprisonment
claim in Count VI against Officer Malouf; (6) the malicious prosecution claim in Count VII
against Officer Malouf; and (7) the battery claim in Count VIII against Officer Malouf.
Defendants seek summary judgment on all of these claims.
summary judgment
on Counts I (First Amendment),
Garcia, in his cross motion, seeks
III (Fourth Amendment),
VI (false
arrest/false imprisonment), and VII (malicious prosecution).
I.
Legal Standards
A.
Summary Judgment
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court must believe the evidence
of the non-moving party, view the facts in the light most favorable to the nonmoving party, and
draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
The nonmoving party has the burden to show a genuine dispute on a material fact.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
fact is one that might affect the outcome of the suit under the governing law."
12
"A material
Spriggs v.
Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson, 477 U.S. at 248)
(internal quotation marks omitted).
A dispute of material fact is only "genuine" if sufficient
evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that
party. Anderson, 477 U.S. at 248-49.
"When faced with cross-motions for summary judgment, the court must review each
motion separately on its own merits 'to determine whether either of the parties deserves
judgment as a matter of law.'"
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003)
(quoting Philip Morris, Inc. v. Harshbarger, 122 F.3d 58, 62 nA (1st Cir. 1997)).
B.
Qualified Immunity
Officers Baxter and Malouf move for summary judgment on the basis that they are
entitled to qualified immunity. Government officials sued in their individual capacities, as these
officers are here, may invoke the protection of qualified immunity to bar a claim for civil
damages under 42 U.S.C.
S
1983. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified
immunity shields government officials from liability for conduct that "does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known."
Id. The doctrine "balances two important interests-the
when they exercise power irresponsibly
need to hold public officials accountable
and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555
U.S. 223, 231 (2009).
Because of the latter interest, qualified immunity protects police officers
and public officials from claims of constitutional violations that arise from "reasonable mistakes
as to the legality of their actions." Saucier v. Katz, 533 U.S. 194, 206 (2001).
It leaves
unprotected only "the plainly incompetent or those who knowingly violate the law.'" Hunter v.
Bryant, 502 U.S. 224,229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
13
The qualified immunity analysis can be separated into two inquiries:
(1) whether the
facts alleged, "[t]aken in the light most favorable to the party asserting the injury, ... show the
officer's conduct violated a constitutional right," and (2) whether the right at issue "was clearly
established in the specific context of the case-that
is, whether it was clear to a reasonable
officer that the conduct in which he allegedly engaged was unlawful in the situation he
confronted." Merchant v. Bauer, 677 F.3d 656, 662 (4th Cir. 2012) (citations and brackets
omitted).
Although courts may consider the two inquiries in whatever sequence best suits the
"circumstances in the particular case at hand,"
Pearson, 555 U.S. at 236, it is preferable to
consider first whether the conduct at issue violated
a constitutional
right because
such
determinations advance "the law's elaboration from case to case" by setting forth principles that
can later become the basis for a holding that a right is clearly established.
Saucier, 533 U.S. at
201; Pearson 555 U.S. at 236 (stating that the Saucier approach, though not mandatory,
"is
often beneficial").
As for the second prong, "[a] right is clearly established
only if its contours are
sufficiently clear that 'a reasonable official would understand that what he is doing violates that
right. '" Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
"In other words, 'existing precedent must have placed the statutory or
constitutional question beyond debate. '" Id. (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
(2011)).
In determining whether a right is clearly established, it is not necessary for a court to
have previously
"fundamentally
considered
the exact facts at issue, or that there be a case involving
similar" facts, so long as "in light of the pre-existing law the unlawfulness [is]
apparent." Hope v. Pelzer, 536 U.S. 730, 739 (2002).
Thus, "officials can still be on notice that
their conduct violates established law even in novel factual circumstances," as long as the law
14
gave the defendant official "fair warning" that the conduct was unconstitutional.
Furthermore,
Id. at 740-41.
because the issue is whether an official should have known that his conduct
violated a constitutional right, whether a right is "clearly established" for purposes of qualified
immunity must be determined in light of the law at the time the contested action was taken.
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012).
II.
First Amendment Claims
In Count I of his Complaint, Garcia asserts that Officers Baxter and Malouf violated his
First Amendment rights in two ways: (1) by arresting him for video recording police in the
public performance of their duties; and (2) by confiscating his video card and never returning it.
Garcia seeks compensatory damages and a declaratory judgment that his First Amendment rights
were violated. Officers Baxter and Malouf move for summary judgment on Count I on the basis
qualified immunity.
For his part, Garcia cross-moves
for summary judgment
on Count I,
claiming that his arrest and the seizure of his video card violated the First Amendment as a
matter of law.
A.
Arrest for Video Recording Police Activity
Officers Baxter and Malouf claim qualified immunity from a damages claim relating to
the alleged arrest of Garcia for video recording police activity because, they assert, (1) they did
not violate any constitutional right to video record police activity; or (2) even if there was such a
violation, the right to record public police activity was not "clearly established" at the time ofthe
incident on June 16, 2011.
Although the Court finds that there is a constitutional right to video
record public police activity, it concludes that the right was not clearly established in this
jurisdiction at the time of the incident, and so grants qualified immunity to the officers on the
First Amendment damages claim.
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1.
Violation of the First Amendment
Garcia asserts that the officers violated his First Amendment right to video record police
officers in the routine public performance of their duties. The United States Supreme Court has
not yet spoken on whether this is a right protected by the First Amendment, but two lines of
Supreme Court precedent, read together, make clear that journalists and citizens alike have such
a right. First, the Supreme Court has stated, in the context of journalists seeking access to nonpublic government information, that "[t]here is an undoubted [First Amendment] right to gather
news 'from any source by means within the law.'''
Houchins v. KQED, Inc., 438 U.S. 1, 11
(1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972)). In Houchins, an inmate at a
local prison committed
suicide, a newsworthy
event, which prompted journalists
to seek
information about conditions inside the facility. Id. at 3. The right to film police officers in the
public performance of their duties is certainly suggested, but not wholly established, by the First
Amendment right to gather news. Here, the right at issue is of a broader scope than the right of
journalists to follow a newsworthy story.
newsworthy-police
It is the right to record something that is not itself
officers in the routine performance of their duties-but
that may become
newsworthy.
This latter aspect of the right implicates a second line of Supreme Court cases.
Supreme
Court has held that the protection
and promotion
of "the free discussion
The
of
governmental affairs" is a paramount First Amendment interest. Mills v. Alabama, 384 U.S. 214,
218 (1966). Significant to that right, indeed of "highest importance," are the aims of "preventing
corruption and sustaining the active alert responsibility of the individual citizen in a democracy
for the wise conduct of government."
89 (1978).
First Nat 'I Bank of Boston v. Bellotti, 435 U.S. 765, 788-
Thus, recording governmental activity, even if that activity is not immediately
16
newsworthy, has the potential to prevent government abuses through scrutiny or to capture those
abuses should they occur. As Garcia stated, recording police activity enables citizens to "keep
them honest," an undertaking protected by the First Amendment.
The United States Court of Appeals for the Fourth Circuit has not addressed in a
published opinion whether there is a First Amendment right to record public police activity.
However, other circuits confirm that this right exists.
In a case with similar facts, the United
States Courts of Appeals for the First Circuit relied on these two strands of Supreme Court
precedent to hold that a citizen who recorded on his cell phone both video and audio of police
officers arresting an individual on the Boston Common, the nation's oldest public park, had a
First Amendment right to record the arrest. Glik v. CunnijJe, 655 F.3d 78, 82 (1st Cir. 2011).
The First Circuit reasoned that, "[g]athering information about government officials in a form
that can readily be disseminated
to others serves a cardinal First Amendment
protecting and promoting the free discussion of governmental affairs."
interest in
Id. (internal quotation
marks and citation omitted); see also Gericke v. Begin, 753 F.3d 1, 7-8 (1st Cir. 2014) (holding
that an arrest of a citizen for illegal wiretapping when she recorded a traffic stop without
interfering with the police activity violated her First Amendment rights).
Likewise, in American Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir.
2012), the United States Court of Appeals for the Seventh Circuit enjoined the enforcement of a
state anti-eavesdropping
statute against the audiovisual recording of police officers performing
their duties in public because "[a]udio recording is entitled to First Amendment protection," and
such protection includes "prohibit[ing] government from limiting the stock of information from
which members of the public may draw."
Bellotti, 435 U.S. 765, 783 (1978ยป.
Id. at 597 (quoting First Nat'l Bank of Boston v.
Other circuits, too, have found a general First Amendment
17
right to record the public activities of police officers and government officials. See, e.g., Smith v.
City of Cumming, 212 F.3d 1332, 1333 (lIth
Cir. 2000) (holding that plaintiffs "had a First
Amendment right, subject to reasonable time, manner and place restrictions, to photograph or
videotape police conduct"); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995)
(recognizing a "First Amendment right to film matters of public interest" in a case where police
officers interfered with a citizen seeking to film a public demonstration directed in part against
the police). But see Kelly v. Borough of Carlisle, 622 F.3d 248, 262-63 (3d Cir. 2010) (holding,
for purposes of qualified immunity, that it was not clearly established that citizens have a First
Amendment right to videotape a traffic stop).
Thus, based on the Supreme Court precedent finding First Amendment rights to gather
the news and to engage in free discussion of governmental affairs to advance the wise and honest
conduct of government, as well as the precedent from other circuits explicitly finding a First
Amendment right to record public police activities, this Court finds that video recording of
police activity, if done peacefully and without interfering with the performance of police duties,
is protected by the First Amendment.
As discussed below, there is a genuine issue of material
fact whether Officers Baxter and Malouf violated that right when they arrested Garcia. See infra
Part II.C.
2.
Clearly Established Right
Although the Court finds a constitutional right to video record public police activities,
Officers Baxter and Malouf would still be entitled to qualified immunity if that right was not
clearly established at the time of the incident in June 2011.2 The Fourth Circuit has held that to
2 Garcia asserts that because the Court (Motz, J.) stated at the Motion to Dismiss stage that the
right to film law enforcement officers in the public discharge of their duties is a "well18
determine whether a right was clearly established at the time of the alleged violation, courts
"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."
(4th Cir. 1999).
Edwards v. City o/Goldsboro,
178 F.3d 231,251
Thus, "[i]f a right is recognized in some other circuit, but not in this one, an
official will ordinarily retain the immunity defense." Id.
Here, none of delineated controlling sources clearly establish that, as of 2011, citizens
had a right to record police officers in the routine public performance of their duties.
As
explained above, the Supreme Court has not spoken directly on the issue. The Fourth Circuit, in
its only foray into this area, affirmed in an unpublished opinion a district court's determination
that "the right to record police activities on public property was not clearly established in this
circuit at the time of the alleged conduct" and did not opine one way or the other on whether
such a First Amendment right exists. Szymecki v. Houck, 353 F. App'x 852, 853 (4th Cir. 2009).
Thus, as of the incident in 2011, and even today, the Fourth Circuit has not provided police
officers with fair warning that it is unconstitutional to stop someone from video recording the
police in the routine public performance of their duties.
Nor has the Maryland Court of Appeals
weighed in on the issue.
established liberty safeguarded by the First Amendment," Mem. Op. at 6, ECF No. 20 (quoting
Glik v. Cunniffe, 655 F.3d 75, 85 (1st Cir. 2011)), it is the law of the case that such a right is
clearly established for purposes of qualified immunity. However, the law of the case doctrine
does not apply here because in resolving Defendants' Motion to Dismiss, the Court did not
squarely address the issue whether Officer Baxter and Officer Malouf had qualified immunity.
See Mem. Op. at 5-6; MacDonald v. Moose, 710 F.3d 154, 161 n.l0 (4th Cir. 2013) ("[T]he
doctrine of law of the case restricts a court to legal decisions it has made on the same issues in
the same case."). Furthermore, any ruling on qualified immunity at the motion to dismiss stage
does not necessarily preclude revisiting the issue at the summary judgment stage. Behrens v.
Pelletier, 516 U.S. 299, 309 (1996) (stating that "the relevant factors bearing upon the [qualified
immunity] question will be different on summary judgment than on an earlier motion to
dismiss.").
19
Despite this dearth of controlling case law, Garcia argues that the right was clearly
established at the time of the events at issue because the right is self-evident from existing
Supreme Court case law.
In particular, he invokes the First Circuit's opinion in Glik, which
concluded that a First Amendment right to film public police activities was clearly established,
based in part on the two lines of Supreme Court cases discussed above. Crucially, however, the
First Circuit did not base its conclusion solely on its analysis of general Supreme Court
principles; rather, it also relied heavily on its own prior case, Iacobucci v. Boulter, 193 F.3d 14
(l st Cir. 1999), in which the court found that a journalist who was arrested for disorderly conduct
after refusing to stop filming a meeting of a historic district commission had been acting "in the
exercise of his First Amendment right," and that the officer "lacked any authority to stop" the
filming. Glik, 655 F.3d at 83 (citing Iacobucci, 193 F.3d at 25). Thus, by the time of Glik, the
First Circuit had laid the groundwork for the determination that the right to film police officers in
the public performance of their duties is a clearly established right under the First Amendment.
3
No such legal trail exists in Supreme Court or Fourth Circuit precedent.
The fact that, in 2011, the Montgomery County Police Department had a policy on media
relations directing that "to the extent possible, members of the media should be treated as invited
guests at incident scenes," and that "no police officer shall take any action to prevent or interfere
with the news media in photographing or televising an event," does not alter the analysis. CrossMot. Sum. 1. Ex. 11 at 1-2, ECF No. 63-13. A public relations mandate from one's employer,
designed
to "enhance
[the Department's]
image and reputation,"
is not the same as a
constitutional right. Id. While Officers Baxter and Malouf might have been aware of what the
Notably, Glik was decided on August 26, 2011, more than two months after the June 16,2011
incident, and thus could not itself contribute to a finding that a First Amendment right to record
public police activities was clearly established at the time of the relevant events.
3
20
media could be invited to do, that knowledge is not a substitute for a clear understanding of what
the media or individual citizens have a right to do in terms of recording police activity.
As discussed above, based on the fairest reading of Supreme Court precedent, and the
great weight of authority from other circuits, it seems fairly well-settled in 2015 that there is a
First Amendment right to video record police officers as they carry out their public duties. But
the Fourth Circuit has specifically identified the sources from which a clearly established right
can be identified, and as of 201 I-and
still today-none
of the three identified courts has held
that citizens have a right to record police officers as they perform their routine duties. Indeed,
the Fourth Circuit, albeit in an unpublished opinion, expressly stated that this right is not clearly
established.
Szymecki, 353 F. App'x at 853. Thus, the Court must conclude that the right to
record police officers in the routine public performance of their duties was not clearly established
in this Circuit at the time of the events at issue in this case.
Officers Baxter and Malouf are
therefore entitled to qualified immunity from a suit for damages on this aspect of Garcia's First
Amendment claim.
B.
Seizure of the Video Card
Garcia also alleges that his First Amendment rights were violated because Officer Malouf
removed Garcia's video card from his camera, presumably in order to prevent disclosure of its
contents, and never returned it. Garcia's First Amendment claim is alleged against both Officers
Baxter and Malouf. However, when the facts are construed in Garcia's favor, they establish that
Officer Malouf alone purposefully examined Garcia's camera to try to locate the video card, that
he found the video card and removed it, and that he then never returned that video card to Garcia.
There are no facts connecting Officer Baxter to seizure of the video card.
Officer Baxter is
therefore entitled to summary judgment on this aspect of Garcia's First Amendment claim.
21
Officer Malouf seeks summary judgment on this aspect of Garcia's claim, again on the
basis of qualified immunity.
He does not offer an independent basis for this contention, instead
recycling his assertion that, at the time of the incident, there was no clearly established First
Amendment right to record police "in a manner which interfered with police operations."
Mot.
Sum. J. at 29. Officer Malouf proceeds as if the questions whether there is a First Amendment
right to record police activity, and whether there is a First Amendment right not to have any such
recording seized in order to prevent the dissemination of its content, are effectively the same.
These questions, however, are distinct enough to require separate consideration
of whether
Officer Malouf has qualified immunity for Garcia's First Amendment claim relating to the
seizure of the video card. As set forth below, the Court finds that the First Amendment protects
against the seizure of a recording of police activity in order to prevent its public dissemination,
but concludes that the right was not clearly established in this jurisdiction at the time of the
incident, and so grants qualified immunity to Officer Malouf on this aspect of Garcia's First
Amendment damages claim.
1.
Violation of the First Amendment
In Roaden v. Kentucky,
413 U.S. 496 (1972), the Supreme Court navigated
the
intersection between the First and Fourth Amendments and determined that when an officer
seizes material that "arguably" falls within First Amendment protection, and does so "without
the authority of a constitutionally sufficient warrant," then that seizure is "plainly a form of prior
restraint."
Id. at 504 (finding that police seizure of an adult film believed to be obscene was an
unconstitutional
prior restraint).
A prior restraint of "speech [or] publication"
is the "most
serious and the least tolerable infringement on First Amendment rights. Nebraska Press Ass'n v.
Stuart, 427 U.S. 539, 559 (1976).
22
In Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003), the Fourth Circuit applied this
principle to the context of police activity.
In Rossignol, Sheriffs Department deputies, on the
eve of an election, purchased all available copies of a newspaper that had been critical of the
Sheriffs Department.
Id. at 519-21. The Fourth Circuit held that the deputies' "seizure" of the
newspaper had "clearly contravened the most elemental tenets of First Amendment law." Id. at
521. The deputies had "suppress[ ed]" the paper because "they disagreed with its viewpoint,"
making their violation of the First Amendment "all the more blatant." Id.
Here, as discussed above, the video recording of public police actions is an activity
protected by the First Amendment, so it follows that the recording itself is First Amendmentprotected material akin to a film or written publication.
Following the reasoning of Roaden and
Rossignol, the seizure of the recording, if done for the purpose of preventing the dissemination of
the information on the recording, would constitute an unconstitutional
prior restraint.
See
Roaden, 413 U.S. at 504; Rossignol, 316 F.3d at 521. The Court therefore holds that the First
Amendment protects against the seizure and retention of a video recording of public police
activities if the seizure was for the purpose of preventing the public dissemination of the contents
of that recording.
When the evidence is viewed in the light most favorable to Garcia, a reasonable jury
could conclude that Officer Malouf engaged in just such an unlawful prior restraint.
Garcia
asserts that Officer Malouf, after observing Garcia taking video of the police action of arresting
two suspects, removed the video card from Garcia's camera, put it in his pocket, and never
returned it. There is also evidence, from Garcia's testimony and that of Grajeda and Williams,
that Garcia informed the officers that he was a member of the press. These two facts together
support the inference that Officer Malouf, knowing Garcia was a journalist, saw the potential for
23
the recording to be circulated and thus seized and kept the video card to ensure that such
circulation could not occur.
If true, such a seizure would constitute an unconstitutional prior
restraint and would violate the First Amendment.
2.
Clearly Established Right
As noted above, based on Supreme Court and Fourth Circuit precedent predating 2011, it
was clearly established that government officials, including police officers, violate the First
Amendment if they seize newspapers, films, or other First Amendment-protected
materials in
order to prevent the dissemination of their content. See Roaden, 413 U.S. at 504; Rossignol, 316
F.3d at 521.
However, under this precedent, the Court cannot conclude that Officer Malouf had
"fair warning" that his actions violated Garcia's First Amendment rights. Both Roaden, which
involved police seizing an adult film to prevent its public showing, and Rossignol, which
involved a law enforcement effort to prevent the distribution on Election Day of newspapers
containing information critical of candidates supported by the sheriff s department, involved
quintessential First Amendment material. See Roaden, 413 U.S. at 504; Rossignol, 316 F.3d at
521.
In fact, the films in Roaden and the newspapers in Rossignol were items already intended
for and in public circulation, but which were taken out of circulation by law enforcement.
Here, however, Garcia's recording was not of something newsworthy-the
recording almost certain to enter public circulation-but
kind of
a recording made on the chance that
something newsworthy might happen. There is therefore no easy analogy to be drawn between
Roaden and Rossignol and the facts in this case.
Although a right may be clearly established
even in the absence of case law involving the exact or "fundamentally similar" facts, Hope, 536
U.S. at 739, and "officials can still be on notice that their conduct violates established law even
in novel factual circumstances,"
id. at 740-41, the scenario at issue here differs from the
24
controlling case law in one material way: the seized item was not one that was clearly protected
by the First Amendment.
Because it was not clearly established in the Fourth Circuit in 2011
that recording routine police activity was protected by the First Amendment, it also could not
have been clearly established in 2011 that the product of that recording was entitled to the same
First Amendment protections applicable to newspapers and films sold or displayed to the public.
To be sure, under Garcia's version of events, it would be difficult to justify the seizure and
retention of the video card as constitutional.
But, as discussed below, the well-traveled path to
that conclusion runs through the Fourth Amendment, not the First Amendment.
IV.B.
See infra Part
Thus, the Court grants qualified immunity to Officer Malouf on the First Amendment
damages claim relating to the seizure of the video card.
Because the Court finds that that the officers are entitled to qualified immunity on Count
I, Defendants' motion for summary judgment on the claim for damages is granted, and Garcia's
cross motion for summary judgment on the same issue is denied.
C.
Declaratory Judgment
In Count I, Garcia also seeks a declaratory judgment that his arrest "for video-recording
police activity in a public location" and "the permanent deprivation of the video card" violated
his First Amendment rights.
Compl. at 22; Cross Mot. Sum. J. at 10. The Court's finding that
the officers are entitled to qualified immunity does not resolve this issue because qualified
immunity protects government officials only from claims for damages.
Harlow v. Fitzgerald,
457 U.S. 800, 818, 819 n. 34 (1982) (holding that qualified immunity shields government
officials from "liability for civil damages" and "express(ing] no view as to the conditions in
which injunctive or declaratory relief might be available"); see Pearson v. Callahan, 555 U.S.
223, 242 (2009) (stating that the defense of qualified immunity is "not available" in
25
"9
1983
cases where injunctive relief is sought instead of or in addition to damages");
Wood v.
Strickland, 420 U.S. 308, 314 n. 6 (1975) (noting, in the context of absolute immunity in a
9
1983 case, that "immunity from damages does not ordinarily bar equitable relief as well");
Young v. Lynch, 846 F.2d 960, 962 (4th Cir. 1988) (noting, in deciding whether an order denying
qualified immunity is immediately
appealable,
that "an official who is granted qualified
immunity from liability from damages probably will remain in the case as trial proceeds on the
equitable issues").
Claims in federal court for a declaratory judgment are governed by the Declaratory
Judgment Act, 28 U.S.C.
9 2201.
"[D]istrict courts have discretion in determining whether and
when to entertain an action under the Declaratory Judgment Act." Wilton v. Seven Falls Co., 515
U.S. 277, 282 (1995) (citing Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942)).
There is "nothing automatic or obligatory about the assumption of jurisdiction by a federal court
to hear a declaratory judgment
action."
Id. at 288 (internal quotation marks and citation
omitted). Instead, a district court should hear a declaratory judgment action "when the judgment
will serve a useful purpose in clarifying and settling the legal relations in issue," Centennial Life
Ins. Co. v. Poston, 88 F.3d 255, 256 (4th Cir. 1996), but only when doing so is the prudent
course in light of "considerations of practicality and wise judicial administration,"
Wilton, 515
U.S. at 288.
Here, resolving Garcia's declaratory judgment claim serves a useful purpose.
A finding
whether the officers' actions violated the First Amendment may facilitate the resolution of the
bifurcated claim against Montgomery County in which Garcia seeks injunctive relief requiring a
new policy to prevent First Amendment violations.
judicial administration
At the same time, practicality and wise
also weigh in favor of hearing Garcia's declaratory judgment claim.
26
Certainly, if this were the only remaining claim, or if it were expected that other related claims
would be resolved in a different forum, it may not be appropriate to expend judicial resources to
conduct a trial to resolve it. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942)
(holding that the district court did not abuse its discretion in declining to exercise jurisdiction
under the Declaratory Judgment Act because "another proceeding was pending in a state court in
which all the matters in controversy between the parties could be fully adjudicated"); Centennial,
88 F.3d at 256 (noting that a declaratory judgment
action should "not be used to try a
controversy by piecemeal, or to try particular issues without settling the entire controversy")
(internal quotation marks and citation omitted)).
But, as discussed below, all of Garcia's other
claims will need to go before a trier of fact for resolution.
Because the ensuing litigation on
those claims involves the same parties and evidence at issue in Garcia's First Amendment
claims, the additional resources required to resolve the declaratory judgment claim at the same
time would be quite limited. The Court, in an exercise of its discretion, thus chooses to entertain
Garcia's declaratory judgment claim contained in Count I of the Complaint.
Having determined that it is appropriate to hear Garcia's declaratory judgment claim, the
Court turns to whether summary judgment on that claim is appropriate.
Although the Court has
held that citizens have a First Amendment right to video record public police activities, and that
confiscation of a video card or other recording of such police activity would violate the First
Amendment, there remain several genuine issues of material fact relating to Garcia's specific
claim that, in this case, Officers Baxter and Malouf violated those rights. Garcia asserts that up
until his arrest, he was calm and cooperative and so concludes that Officer Malouf must have
arrested him because he was recording police activity, in violation of his First Amendment
rights.
Officer Malouf asserts that when he approached Garcia, Garcia immediately became
27
belligerent and, despite Officer Malouf s repeated efforts and warnings to get him to calm down,
only became more disruptive and combative.
According to Officer Malouf, he arrested Garcia
not for filming police activity, but for disturbing others around him. Likewise, although Garcia
asserts that Officer Baxter's
spotlighting
of him multiple times, including
after he had
determined that Garcia was holding a camera and posed no threat to him or the other officers on
the scene, interfered with his First Amendment right to record the police activity, Officer Baxter
maintains that he trained his spotlight on Garcia out of safety concerns.
According to Baxter,
Garcia repeatedly positioned himself in dark areas, making it difficult, if not impossible, for
Baxter or other officers to see what he was doing or what he was holding.
Thus, there are
genuine issues of material fact relating to whether Officers Baxter and Malouf interfered with
Garcia's First Amendment rights.
To make a determination on whether the officers violated
Garcia's First Amendment rights before and during his arrest would require a trier of fact to sift
through and weigh these opposing factual accounts.
As for Garcia's First Amendment claim relating to the seizure of the video card, little
needs to be said. Garcia insists that Officer Malouf took the card and did not return it. Officer
Malouf denies the allegation.
violation.
If the card was not seized, there would be no First Amendment
Plainly, no declaratory judgment is possible without presenting that issue to a trier of
fact.
Because of these genuine issues of material fact, the Court denies summary judgment to
Defendants and Garcia on the claim for a declaratory judgment that the arrest of Garcia and the
seizure of his video card violated his First Amendment rights.
28
III.
First Amendment Retaliation Claim
In Count II, Garcia alleges that Officers Baxter and Malouf retaliated against him for
filing a complaint with the MCPD Internal Affairs Division and for filing this lawsuit, in
violation of Garcia's First Amendment rights.
The officers seek summary judgment on this
claim, asserting that (1) Garcia does not have a First Amendment right to file an Internal Affairs
complaint or this lawsuit; (2) Garcia has failed to allege facts sufficient for a reasonable jury to
find in his favor on a retaliation claim; and (3) any right was not adversely impacted because
Garcia was not deterred from filing his Internal Affairs complaint or this lawsuit.
The First Amendment right of free speech "includes not only the affirmative right to
speak, but also the right to be free from retaliation by a public official for the exercise of that
right." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). "Retaliation, though
it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory
actions may tend to chill individuals'
exercise of constitutional rights."
Am. Civil Liberties
Union ofMd., Inc. v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir. 1993). A plaintiff seeking to
recover on a First Amendment retaliation claim must prove the following:
engaged in protected First Amendment
(1) the plaintiff
activity, (2) the defendants took some action that
adversely affected the plaintiff's First Amendment rights, and (3) there was a causal relationship
between the protected activity and the defendants' conduct. Constantine v. Rectors & Visitors of
George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005).
The first element presents a pure question of law.
Contrary to Defendants'
assertion,
Garcia's filing of an Internal Affairs complaint and this lawsuit are activities protected by the
First Amendment.
Citizens have a First Amendment right "to appeal to courts and other forums
established by the government for resolution of legal disputes."
29
Borough of Duryea, Pa. v.
Guarnieri, 131 S. Ct. 2488, 2494 (2011). This right of private citizens to petition for the redress
of grievances "extends to all departments of the Government," particularly, as here, when the
grievance is a matter of public concern because it involves allegedly unlawful actions of police
officers.
California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,510
Constantine,
411 F.3d at 499 (holding that the plaintiffs
complaints
(1972); see
about her exams to
administrators at her public law school, which she later reiterated in the law school newspaper,
were protected First Amendment activity); see also Gable v. Lewis, 201 F.3d 769, 771 (6th Cir.
2000) (citing California Motor Transport in determining that a tow truck company owner had a
First Amendment right to file a complaint with "nonjudicial
department,"
public agencies like a police
specifically with the state Highway Patrol, regarding sex discrimination
in the
assignment of towing jobs). Garcia thus satisfies the first element.
On the second element, Defendants assert that Garcia "has developed no facts to support
his theory of retaliation."
Mot. Sum 1. at 32. Garcia, however, has presented such facts as to
Officer Malouf. In his response to Defendants' interrogatories, Garcia stated that during a oneweek period in early December 2011, which was around the time of his trial on the disorderly
conduct charge, he twice saw Officer Malouf parked across the street from his home, in front of
the house that Officer Malouf had "mistakenly entered as [Garcia's] address" on the June 16,
2011 police report.
Cross-Mot. Sum. J. Ex. 5 at 7-8.
While Officer Malouf points out that
Garcia's street is a frequently used shortcut and also that officers are regularly called to a nearby
nursing home, those responses do not explain why Officer Malouf parked on Garcia's street,
rather than driving through or parking at the nursing home. Nor do they explain why, as Garcia
alleges, Officer Malouf would be twice parked in the same spot, a spot right outside the address
he had recorded as Garcia's.
30
Garcia also asserts that since he began pursuing his complaints related to this incident, he
has seen other police cruisers parked in front of his home on more than one occasion.
For
example, he has video evidence that on March 19, 2013, Officer Barros was parked on his street,
in a location near where he had seen Officer Malouf. Officer Barros has stated that he was there
to do paperwork, but he told Garcia that he wanted to "check up on" him. Cross Mot. Sum. J.
Ex. 19 at 8-9. Although Garcia has no evidence specifically linking Officer Malouf to Officer
Barros, his interaction with Officer Barros provides additional support for his claim that Officer
Malouf, with the help of other MCPD officers, engaged in a coordinated effort to intimidate him.
Officer Malouf may well contend that he never parked on Garcia's street, or that he had a reason
to park there unrelated to Garcia, but it is for a trier of fact to determine who is credible on that
score.
The second element also requires that the alleged retaliatory action adversely affect the
plaintiff's First Amendment rights.
Defendants assert that because Garcia actually filed his
Internal Affairs complaint and the instant lawsuit, he cannot show that any alleged retaliatory
actions adversely affected his First Amendment rights.
"[A] plaintiff need not actually be deprived of ...
First Amendment retaliation."
This argument requires little attention.
First Amendment rights in order to establish
Constantine, 411 F.3d at 500. The test is an objective one: an
action adversely affects a plaintiff's First Amendment rights if the action "would likely deter a
person of ordinary firmness from the exercise of First Amendment
quotation marks and citation omitted).
rights."
Id. (internal
Under Garcia's account, he twice saw Officer Malouf
sitting in a parked police cruiser across the street from the house that Officer Malouf likely
believed to be where Garcia lived, and he saw a number of other police officers do the same,
including Officer Barros, who remarked to Garcia that he was there to "check up" on him.
31
Viewed in the light most favorable to Garcia, this gratuitous show of uninvited law enforcement
interest, if true, would certainly be enough to chill others from lodging complaints against police
officers.
The third element of the retaliation claim, that there was a causal relationship between the
plaintiffs
activity and the defendant's conduct, generally requires that the defendant was aware
of the protected activity and that there was some sort of temporal proximity between the
protected activity and the alleged retaliation so as to suggest a causal connection.
Constantine,
411 F.3d at 501. Defendants do not claim that there was a lack of temporary proximity.
Rather,
their argument on causation largely folds into the arguments on the second element.
They
contend that to the extent police officers drive down Garcia's street, it is likely because that
street is on the way to and from a nursing home or other locations to which Montgomery County
Police Officers are regularly called. Again, Officer Malouf provides no explanation for why he
or other officers would park in front of Garcia's house rather than simply pass by en route to
other locations.
Regardless, whether Malouf parked in front of Garcia's house and whether he
did so in order to retaliate for Garcia's complaints are genuine issues of material fact not to be
resolved on summary judgment.
Although the Court finds sufficient evidence to support a retaliation claim against Officer
Malouf, it does not find such evidence relating to Officer Baxter.
Unlike for Officer Malouf,
Garcia has no evidence that Officer Baxter ever parked outside of Garcia's home.
The only
direct evidence involving Officer Baxter that arguably relates to retaliation are text messages
between Officers Baxter and Graves in which they discuss Garcia's criminal prosecution and
Garcia's later lawsuit.
While these text messages show that Garcia was a topic of discussion
between those officers, that is all they show.
There is no mention of a plan to make their
32
presence known on Garcia's street or otherwise to harass him.
In the absence of anything
directly tying Officer Baxter to any retaliatory activity, Garcia's evidence that other officers
parked outside his home cannot be the basis for establishing a retaliation claim against Officer
Baxter. Garcia himself essentially recognizes this deficiency, arguing that it "would not be a far
leap for the jury to infer" that Officer Baxter's texts about Garcia indicate his involvement in "a
broader effort at attempted retaliation."
Cross Mot. Sum. J. at 42.
On summary judgment,
however, "[i]t will not do to presume the missing facts," yet such a presumption is precisely what
is involved in the leap that Garcia proposes.
Lujan v. Nat'l Wildlife Federation, 497 U.S. 871,
888-89 (1990) (stating that "general averments" are not enough to create a material dispute of
fact). The Court therefore grants the Motion for Summary Judgment on the retaliation claim as
to Officer Baxter, but denies it as to Officer Malouf.
IV.
Fourth Amendment Claim
In Count III, Garcia asserts that his arrest and the seizure of his camera and video card
violated the Fourth Amendment because Officer Malouf lacked probable cause to arrest him for
disorderly conduct or any other charge. Officer Malouf seeks summary judgment on this Claim,
asserting that the undisputed facts establish that he had probable cause to arrest Garcia for a
Maryland criminal offense, either hindering an arrest or second-degree assault, and that even if
he lacked probable cause for the arrest, he is entitled to qualified immunity on the Fourth
Amendment claim.
Garcia, for his part, seeks summary judgment in his favor, arguing that as a
matter of law there was no probable cause to arrest him for disorderly conduct, hindering an
arrest, or second-degree assault, such that his arrest, and the seizure of his camera and video card
incident to that arrest, were unconstitutional.
33
A.
Probable Cause to Arrest
With limited exceptions, "seizures are reasonable only if supported by probable cause."
Dunaway v. New York, 442 U.S. 200, 214 (1979) (internal quotation marks omitted). An officer
has probable cause for an arrest when "facts and circumstances within the officer's knowledge
would warrant the belief of a prudent person that the arrestee had committed or was committing
an offense." United States v. Manbeck, 744 F.2d 360,376 (4th Cir. 1984) (citing Beck v. Ohio,
379 U.S. 89, 91 (1964)).
As the term implies, probable cause involves "probabilities,"
the
"factual and practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act." Id. (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Thus,
probable cause requires more than mere suspicion, but less than proof beyond a reasonable
doubt. See Wong Sun v. United States, 371 U.S. 471, 479 (1963). "The question to be answered
is whether an objectively
reasonable
police officer, placed in the circumstances,
had a
'reasonable ground for belief of guilt' that was 'particularized with respect to the person to be
searched or seized.'" United States v. Humphries, 372 F.3d 653, 657-58 (4th Cir. 2004) (quoting
Maryland v. Pringle, 540 U.S. 366, 372-73 (2003)).
The arresting officer's belief need not be
correct or even more likely true than false, so long as it is reasonable.
730, 742 (1983).
immaterial.
Texas v. Brown, 460 U.S.
Furthermore, the officer's subjective motivations for making the arrest are
Whren v. United States, 517 U.S. 806, 813 (1996).
1. Disorderly Conduct
Although Officer Malouf moves for summary judgment on Garcia's claim that the arrest
violated the Fourth Amendment, he acknowledges that, in light of Garcia's contention that he
was behaving peaceably before he was arrested, there may be a "question of fact as to whether
Officer Malouf had probable cause to arrest [Garcia] for disorderly conduct."
34
Mot. Sum. J. at
35.
Officer Malouf primarily argues that he had probable cause to arrest Garcia for two other
offenses. It is therefore only Garcia who asserts that he is entitled to summary judgment on the
question whether Officer Malouf had probable cause to arrest him for disorderly conduct.
In Maryland, "[a] person from any location may not, by making an umeasonably loud
noise, willfully disturb the peace of another ...
in a public place."
Md. Code Ann. Crim. L.
S
10-201(c)(5)(i) (2012). In addition, "[a] person may not willfully fail to obey a reasonable and
lawful order that a law enforcement officer makes to prevent a disturbance to the public peace."
Id.
S
10-201(c)(3).
To do either of these things would constitute disorderly conduct.
Garcia,
focusing on the first form of disorderly conduct, asserts that Officer Malouf lacked probable
cause to arrest him for disorderly conduct because the "brevity" of his interactions with Officer
Malouf meant that he could not have disturbed the peace in any "meaningful" way. Cross Mot.
Sum. J. at 23. According to Garcia, Officer Malouf arrested him "[a]lmost immediately" after
approaching him. Id. Officer Malouf, however, contends that Garcia yelled for several minutes
before he ultimately arrested Garcia for disorderly conduct, a step he took only after repeatedly
instructing Garcia to quiet down and warning him that he might be arrested if he did not do so.
There is thus a material dispute of fact relating to the length of Garcia's interactions with
Malouf, the volume of Garcia's protests, and whether they disturbed others prior to his arrest,
such that summary judgment in favor of Garcia on this issue would be inappropriate.
More significantly, Garcia asserts that anything he said was a "verbal protest against
illegal police orders" and was therefore protected by the First Amendment.
Id. at 24. In support
of this proposition, Garcia relies on Diehl v. State, 451 A.2d 115 (Md. 1982).
In Diehl, the
passenger of a car stopped by the police got out, only to be instructed by the police officer to
return to the vehicle. In response, the passenger "began yelling," including using profanity, "said
35
that he knew his rights, and said that [the officer] could not tell him to get back into the car." Id.
at 116. After the officer warned him that he would be arrested if he did not get back into the car,
and passers-by began to stop and watch, the passenger was arrested for, and later convicted of,
disorderly conduct. Id. at 116-17.
On appeal, the State argued that the conviction was valid because Diehl's protests
amounted to "loud and unseemly noises."
2002); Md. Code Ann. Crim. L.
S
Id. at 118; see Md. Code Art. 27
10-201(c)(5) (replacing Md. Code Art. 27
S
S
121 (repealed
121 and making it
illegal to "mak[ e] an unreasonably loud noise" that "willfully disturb [s] the peace of another").
The Maryland Court of Appeals vacated the conviction, holding that where a person "is acting in
a lawful manner ...
and is the object of an unlawful police order, it is not usually a criminal
violation for such person to verbally protest a police officer's insistence upon submission to such
an order." Id. at 122. Instead, the Court explained, such verbal protests are speech protected by
the First Amendment and so cannot serve as the basis for a disorderly conduct arrest unless they
"advocate[] imminent lawless action" and are "likely to incite a breach of the peace." Id. at 119.
The Maryland Court of Appeals has since clarified the scope of Diehl. In Eanes v. State,
569 A,2d 604 (Md. 1990), the Court returned to the issue of "loud and unseemly noise" and held
that when police officers arrest individuals for disorderly conduct based solely on the volume of
their speech-not
.its content-such
arrests do not violate the First Amendment.
Id. at 617-18.
In reaching this determination, the Eanes court distinguished the arrest in Diehl as one made
"based
on [the] allegedly
passenger's
volume.
objectionable
Id. at 608.
whether such an arrest was lawful:
content"
of the passenger's
speech, not on the
The court identified three factors to consider in assessing
(1) whether the order was directed at the content of the
speech or its volume; (2) the time and place where the speech occurs, including the appropriate
36
sound level for that location; and (3) whether there were alternative means for the arrestee to
express a viewpoint. Id. at 612-13. Recognizing, however, that disorderly conduct arrests can be
tools for "oppressive action" on the part of government officials, the Court of Appeals indicated
that any arrest for disorderly conduct based on the volume of an individual's speech had to be
preceded by a "prior warning by police authority" that "further communication at the offensive
volume level may subject the individual to prosecution" and "a complaint from an affected
citizen upon the basis of which the officer reasonably believes that the statute has been violated."
Id. at617-18.
In Polk v. State, 835 A.2d 575 (Md. 2003), the Maryland Court of Appeals again dealt
with the intersection of disorderly conduct and the First Amendment,
specifically with the
relationship between the prohibition on loud and unseemly noises and the provision making it
illegal for a person to "willfully fail to obey a reasonable and lawful order that a law enforcement
officer makes to prevent a disturbance to the public peace." Md. Code Art. 27
Md. Code Ann. Crim. L.
S
S
121, revised as
10-201(c)(3).4 In Polk, a former hospital employee picking up her
final paycheck began to curse and yell at a special patrol officer who was delivering the check to
the human resources department.
The officer instructed Polk to "keep [her] mouth quiet and
leave." Polk, 835 A.2d at 577. As Polk made her way through the hospital, continuing to yell
and curse, the officer warned her that she would be arrested for disorderly conduct if she did not
stop.
Id.
At least two people "changed their direction to walk away" from her. Id. at 578.
4 The revised provision, enacted in October 2002, was in effect by the time Polk was decided
but not when the events at issue in the case occurred. The two provisions are substantively the
same, as the current statute was merely "new language derived without substantive change from
former Art. 27 S 121." Md. Code Ann. Crim. L. S 10-201, Revisor's Note. The new provision
reads: "A person may not willfully fail to obey a reasonable and lawful order that a law
enforcement officer makes to prevent a disturbance of the public peace." Md. Code Ann. Crim.
L. S 10-201(c)(3).
37
When Polk persisted in screaming and cursing, the officer arrested Polk for disorderly conduct.
Id. at 577, 583. Polk was later found guilty and appealed her conviction based on Diehl. Id. at
578. Applying the factors identified in Eanes, the Court of Appeals rejected her challenge based
on its determination that the officer's orders to Polk to be quiet were lawful because they were
directed at the volume, not the content, of Polk's speech; that the location of the encounter, a
hospital, was a place where such a sound level was not appropriate; and that Polk had alternative
means by which to express her views, such as speaking to hospital supervisor.
Id. at 582-86.
The court thus concluded that because the officer's orders to Polk were lawful, Polk's refusal to
obey those orders constituted disorderly conduct. Id. at 579.
Here, when the facts are construed in the light most favorable to Officer Malouf, the key
factual elements in Polk are arguably present. Specifically, Officer Malouf asserts that over the
course of several minutes, he repeatedly instructed Garcia to "quiet down," but that Garcia
refused to do so. Mot. Sum. 1. Ex. 14 at 17-18. Officer Malouf and several other officers assert
that Garcia's yelling drew their focus and the focus of about a dozen nearby people.
And
Efigenia Rashid stated that Garcia yelled so loudly that, although her car windows were rolled
up, the noise distracted her from the game she was playing on her tablet.
Officer Malouf
contends that it was only after Garcia's repeated refusals to calm himself down, and after Officer
Malouf warned him several times that if he failed to do so he could be arrested for disorderly
conduct, that he ultimately placed Garcia under arrest.
Officer Malours
statement that he repeatedly instructed Garcia to "quiet down" arguably
establishes that his orders to Garcia were directed at the volume of Garcia's speech, not its
content.
Although the encounter with Garcia occurred on a public street, a place where there
should be more tolerance for noise than the hospital in Polk, under a probable cause standard, the
38
apparent impact of Garcia's speech on members of the public may be sufficient to warrant the
officer's intervention at that time and place. Garcia also likely had alternative means by which
to express his discontent, such as by contacting MCPD supervisors directly. In light of Polk, and
upon consideration of the Eanes factors, a reasonable jury could conclude that Officer Malouf
had probable cause to arrest Garcia for disorderly conduct, and that the arrest did not infringe on
Garcia's First Amendment rights. Alternatively, a reasonable jury could also conclude that the
arrest for disorderly conduct lacked probable cause either because Garcia was not, in fact,
disruptive in any way, or because the arrest was impermissibly based on the content of Garcia's
speech. Because there is a legal theory by which Officer Malours arrest of Garcia for disorderly
conduct could be deemed lawful, and there are adequate facts in the record to support that theory,
the question whether Garcia was lawfully arrested for disorderly conduct cannot be resolved on
summary judgment, but must instead be put before a trier of fact.
2. Obstructing or Hindering an Arrest
Officer Malouf argues that he is entitled to summary judgment on Count III because there
was, as a matter of law, probable cause to arrest Garcia for a different offense:
obstructing or
hindering an arrest. See Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (holding that an arrest is
lawful if, based on the facts known to the arresting officer at the time, there is probable cause to
arrest for any offense, not just the offense that was the basis for the arrest or offenses closely
related to it). In Maryland, it is illegal to "interfere with an individual who the person has reason
to know is a police officer who is making or attempting to make a lawful arrest or detention of
another person."
Md. Code Ann. Crim. L.
S 9-408(b)(2).
the crime of hindering an arrest has four elements:
Maryland courts have explained that
(1) a police officer engaged in the
performance of a duty; (2) an act or omission by the defendant that obstructs or hinders the
39
officer in the performance of that duty; (3) knowledge that the police officer is engaged in the
performance of a duty; and (4) intent to obstruct or hinder the officer. Cover v. State, 466 A.2d
1276, 1284 (Md. 1983).
Here, there is no question that Garcia was aware that Officers Baxter, Graves, and
Malouf were police officers and that they were performing their duty in arresting the alcohol
suspects.
The first and third elements are therefore satisfied. The second and fom1h elements,
however, are more problematic.
On the second element, it is undisputed that Garcia did not
actually prevent the arrest of the two alcohol suspects.
that Garcia delayed those arrests-by
Instead, Officer Maloufs
contention is
about 40 minutes, according to Officer Baxter-and
that
such delay satisfies the second element. However, the Maryland Court of Appeals has indicated
that merely delaying an arrest does not constitute hindering. In In Re Antoine H, 570 A.2d 1239
(Md. 1990), the court held that evidence of a "delay in opening the door" to police officers to
give a suspect time to hide, and of unbelieved lies to the officers about the suspect's presence on
the premises, was insufficient to establish at trial the second element of the crime of hindering an
arrest.
Id. at 1243. The court reasoned that because the police officers ultimately found the
suspect and arrested him, they were not "actually hindered or obstructed" in making the arrest.
Id. at 1242.
Even if delaying an arrest could be deemed to establish the second element, Officer
Malouf s argument founders on the fourth element.
As Officer Malouf and his fellow officers
recount the events of that night, Officer Malouf was called to the scene because Garcia was "in
the shadows" at a distance too far away for Officers Baxter and Graves to discern exactly what
he was doing. Mot. Sum. J. Ex. 1 at 17. The problem that the officers assert Garcia posed was
thus not that he was actively or intentionally interfering in the arrest of the alcohol suspects, but
40
that he was a distraction.
Even when the facts are construed in Officer Malours
favor, there is
no evidence that any disruption Garcia may have caused in the arrest of the two alcohol suspects
was one he intended to cause. Instead, the undisputed evidence is that, before Officer Malouf
arrived, Garcia stayed at least 35 feet away from the arrest scene and did not engage with the
officers.
Once Officer Malouf arrived, either, as Garcia tells it, Garcia remained calm, or, as
Officer Malouf tells it, Garcia began to protest his own interaction with the police, not the arrest
of the two alcohol suspects. To find that Officer Malouf had probable cause to arrest Garcia for
hindering would thus be to mistake a possible effect of Garcia's video recording-the
distraction-for
officers'
Garcia's intent in video recording. Notably, Garcia's core claim is that he had a
right to record the events unfolding in front of him, a claim that is fundamentally at odds with the
assertion that Garcia's intent was to thwart those events. Thus, the Court concludes that, even
viewing the facts in the light most favorable to the defense, Officer Malouf did not have an
objectively reasonable basis to believe that Garcia committed the offense of hindering an arrest
and therefore did not have probable cause to arrest Garcia for that crime.
3. Second-Degree Assault
Lastly, Officer Malouf asserts that he had probable cause to arrest Garcia for seconddegree assault. In Maryland, "assault" is defined as "the crimes of assault, battery, and assault
and battery, which retain their judicially determined meanings."
201(b).
Md. Code Ann. Crim. L.
S
3-
One of those judicially determined meanings, and the one asserted here, is that an
individual can commit an assault merely by "intentional(ly] frightening" someone, even absent
physical contact. Wieland v. State, 643 A.2d 446,464 (Md. 1994). Such an assault is a seconddegree assault, Maryland's catch-all crime for assaults that are not committed with a firearm or
41
which do not involve intent to cause serious physical injury. See Md. Code Ann. Crim. L.
SS
3-
202,3-203 (defining first-degree and second-degree assault, respectively).
Officer Malouf's contention that he had probable cause to arrest Garcia for second-degree
assault on an "intent to frighten" theory arises from Grajeda's assertion that he felt "threatened
by [Garcia's] loud yelling while [Garcia] pointed his finger directly at Grajeda."
Resp. Opp'n
Cross Mot. Sum. J. at 22. This argument warrants scant attention. Second-degree assault based
on an intent to frighten has three elements: (1) the defendant committed an act with the intent to
place the victim in fear of immediate physical harm; (2) the defendant had the apparent ability at
the time of the act to bring about the threatened physical harm; and (3) the victim was aware of
the threat of physical harm. Jones v. State, 103 A.3d 586,589 (Md. 2014).
was cursing and pointing in Grajeda's direction.
Here, Garcia's "act"
Even when the facts are construed in Officer
Malouf's favor, there is no reasonable basis to conclude that Garcia acted with the intent to place
Grajeda in fear of immediate physical harm. No one heard Garcia make any threats of physical
harm toward anyone. In fact, Grajeda acknowledged that Garcia's cursing was not even directed
at him. According to Grajeda, he did not know exactly to whom Garcia was talking because
"when you are yelling and screaming, 'Fuck this. Fuck that' .... Who am I speaking to? God?"
Mot. Sum. 1. Ex. 2 at 16. Garcia's pointing, which appears to have happened only once, was not
accompanied by any other threatening gesture. Furthermore, even if Garcia did intend to cause
Grajeda to fear for his safety, at the time Garcia supposedly indicated this intent, Officer Malouf
was already on the scene, only feet away from Garcia.
With Garcia already under the close
observation of an armed police officer, whose sole purpose on the scene was to ensure that
Garcia posed no threat, Garcia cannot be said to have had the "apparent ability" to carry out any
supposed threats of physical harm.
Officer Malouf therefore did not have an objectively
42
reasonable basis to believe that Garcia was committing, or intended to commit, second-degree
assault and thus did not have probable cause to arrest him for that offense.
B.
Probable
Cause to Seize the Camera and Video Card
In his Complaint, Garcia asserts that because his arrest was unlawful, the seizure of his
camera and the video card were also unlawful. Although both sides seek summary judgment on
Count III, neither offers an argument on why it is entitled to summary judgment on this question,
nor would summary judgment be appropriate. Whether the camera and video card were lawfully
seized depends, as a threshold matter, on the lawfulness of the arrest, and thus whether Officer
Malouf was entitled to search Garcia incident to that arrest. The lawfulness of the seizures thus
folds analytically into the question of probable cause for the arrest, which as discussed above,
cannot be decided on summary judgment.
See United States v. Robinson, 414 U.S. 218, 224
(1973) ("It is well settled that a search incident to a lawful arrest is a traditional exception to the
warrant requirement of the Fourth Amendment.");
Chimel v. California, 395 U.S. 752, 763
(1969) ("[I]t is entirely reasonable for the arresting officer to search for and seize any evidence
on the arrestee's person in order to prevent its concealment or destruction.").
Even then, the items could only be seized if there is a "nexus ... between the item to be
seized and criminal behavior."
Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).
Garcia's claim that Officer Malouf seized and never returned the video card, if true, may
establish a Fourth Amendment violation as a matter of law, because there is no apparent basis for
the permanent seizure of the video card, particularly in light of Garcia's acquittal at trial on the
disorderly conduct charge. But there remains a material dispute of fact about the video card that
is as sharp as one can be: Garcia asserts that Officer Malouf took and retained the card; Officer
43
Malouf asserts that he did not. Thus, there is no basis to grant summary judgment to either party
on the Fourth Amendment claim relating to the seizure of the camera and video card.
C.
Qualified Immunity
Officer Malouf alternatively asserts that he has qualified immunity on Garcia's Fourth
Amendment claims. Qualified immunity shields government officers from liability for damages
if their conduct "does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow, 457 U.S. at 818. At the summary judgment
stage, Officer Malouf's qualified immunity argument fails. As discussed above, there exists a
genuine issue of material fact whether Officer Malouf violated Garcia's Fourth Amendment
rights. Moreover, it is beyond question that the right not to be arrested or to have one's property
seized without probable cause were clearly established and widely known at the time of the
events at issue here. See, e.g., Dunaway v. New York, 442 U.S. 200, 212 (1979) (reiterating the
"general principle that Fourth Amendment seizures must be supported by the 'long-prevailing
standards' of probable cause") (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949));
Virginia v. Moore, 553 U.S. 164, 176-78 (2008) (holding that a warrantless
arrest for a
misdemeanor committed in the presence of a police officer, and a subsequent search incident to
arrest, are lawful if there is probable cause to arrest); Wong Sun v. United States, 371 U.S. 471,
479 (1963) ("It is basic that an arrest ... must stand upon firmer ground than mere suspicion ...
a relaxation of the fundamental requirements of probable cause would leave law-abiding citizens
at the mercy of the officers' whim or caprice") (internal quotation marks omitted)).
Malouf's invocation of Plumhoffv.
Rickard, 134 S. Ct. 2012 (2014) is unavailing.
Officer
Plumhoff
presented the question of whether it was clearly established that it was unconstitutional to use
"lethal force to end a high-speed chase," id. at 2024, a factual scenario too far afield from the
44
facts here for that case to be enlightening.
Officer Malouf is therefore not entitled to qualified
immunity on Garcia's Fourth Amendment claims.s
Because the facts in the record, even when construed in the light most favorable to the
defense, do not establish that Officer Malouf had probable cause to arrest Garcia for either
hindering an arrest or second-degree assault, his motion for summary judgment on Garcia's
Fourth Amendment claim is denied, and Garcia's motion for summary judgment as to those two
crimes is granted.
However, because there are factual disputes that must be resolved to
determine whether Officer Malouf had probable cause to arrest Garcia for disorderly conduct,
Garcia's motion for summary judgment as to his arrest for disorderly conduct is denied.
V.
Common Law Claims
In addition to his constitutional claims, Garcia alleges three common law torts: (1) false
arrest and false imprisonment (Count VI), (2) malicious prosecution (Count VII), and (3) battery
(Count VIII).
Officer Malouf seeks summary judgment on all three claims.
summary judgment
on the false arrest and false imprisonment
Garcia seeks
claim and the malicious
prosecution claim.
The "necessary elements" of the tort of false arrest and false imprisonment are (1) the
deprivation of the liberty of another; (2) without consent; and (3) without legal justification.
Ashton v. Brown, 660 A.2d 447, 471 (Md. 1995). The elements of malicious prosecution are "(1)
the defendant instituted a criminal proceeding against the plaintiff; (2) the criminal proceeding
S
Officer Malouf would still not be entitled to qualified immunity on Garcia's Fourth
Amendment claim if the disorderly conduct arrest was based on the content of Garcia's
complaints. Diehl, decided by the Maryland Court of Appeals in 1982, establishes that verbal
protests against the police are speech protected by the First Amendment and therefore cannot
serve as the basis for a disorderly conduct arrest unless they become exhortations to unlawful
action. Diehl, 451 A.2d at 119. The First Amendment right not to be arrested for verbally
protesting police action was thus a clearly established right at the time ofthe events in this case.
45
was resolved in the plaintiffs favor; (3) the defendant did not have probable cause to institute the
proceeding; and (4) the defendant acted with malice or a primary purpose other than bringing the
plaintiff to justice."
Okwa v. Harper, 757 A.2d 118, 130 (Md. 2000).
Battery consists of an
intentional and unlawful touching, without consent, that is harmful or offensive.
Elias v. State,
661 A.2d 702, 709 (Md. 1995).
Each side's
argument
Amendment arrest claim.
on these three claims relies on its position on the Fourth
Proceeding on the assumption that he had probable cause to arrest
Garcia, Officer Malouf asserts that the arrest, detention, and prosecution of Garcia, and the
physical contact necessary to effect the arrest, were all legal.
Garcia, proceeding on the
assumption that Officer Malouf did not have probable cause to arrest, argues that Officer Malouf
necessarily unlawfully deprived Garcia of his liberty, initiated a criminal proceeding without
probable cause, and also intentionally, unlawfully, and offensively touched Garcia.6
Here, as
discussed above, there is an unresolved factual question whether Officer Malouf had probable
cause to arrest Garcia for disorderly conduct.
With the lawfulness of Garcia's arrest unclear,
there can be no determination as a matter of law on any of the common law claims.
Furthermore, on the malicious prosecution claim, even if Officer Malouf did not have
probable cause to arrest, there would still be factual disputes that would preclude a determination
on the fourth element:
whether he acted with malice when arresting Garcia.
"The 'malice'
required for malicious prosecution consists of a wrongful or improper motive in initiating legal
proceedings."
Alvarez
v. Montgomery
Co., 147 F.3d 354, 360 (4th Cir. 1998) (quoting
Because the essence of battery is an unlawful touching, Officer Malouf s assertion that he
used only the force necessary to effect the arrest does not resolve this claim. Battery includes any
unlawful application of force, even one that results only in "slight" injury. Elias, 661 A.2d at
709.
6
46
Montgomery
Ward v. Wilson, 664 A.2d 916, 924 (Md. 1995)).
Garcia asserts that Officer
Malours wrongful motive was a desire to abridge his First Amendment rights. Officer Malours
alleged malice is thus bound up in the reasons behind, and the factual disputes surrounding,
Garcia's arrest and thus cannot be resolved on summary judgment.
Finally, if the question of the legality of the arrest were resolved in Officer Malours
favor, summary judgment on the battery claim would still be inappropriate.
Even if Officer
Malouf was initially authorized to touch Garcia to effect a lawful arrest, Garcia asserts that
Officer Malouf used more force than was necessary, including deliberately tripping him while he
was handcuffed and pressing his neck in such a way as to cause significant pain.
denies these allegations.
Officer Malouf
Thus, on this excessive force aspect of the battery claim, there are
material factual disputes that preclude summary judgment.
For these reasons, the cross motions for summary judgment on the common law torts are
both denied.
VI.
The Privacy Protection Act
In Count V, Garcia asserts a claim under the Privacy Protection Act ("the PP A"), 42
U.S.C.
9 2000aa
et seq., based on the alleged seizure of and failure to return the video card from
his camera.
The PP A prohibits government officers "in connection with the investigation or
prosecution
of a criminal offense" from searching or seizing "any work product materials
possessed by a person reasonably believed to have a purpose to disseminate to the public" those
materials.
42 U.S.C. 9 2000aa(a).
However, the "suspect exception" to the PPA allows
government officials to seize otherwise exempt materials "if there is probable cause to believe
that the person possessing such materials has committed or is committing the criminal offense to
which the materials relate."
Id. at
9
2000aa(a)(l).
47
Montgomery
County seeks summary
judgment on Garcia's PPA claim, asserting that even assuming that Officer Malouf seized the
video card, which he disputes, Garcia has failed to produce any evidence establishing that he had
a "purpose to disseminate" his recording to the public, and arguing, in the alternative, that any
seizure of the video card was permissible under the PPA suspect exception. Mot. Sum. J. at 40.
On the first argument, the County bases its contention that Garcia has not established that
he had a "purpose to disseminate" the recording on the fact that none of the officers heard Garcia
"express any such intentions" to distribute the material. Id. However, the PP A does not require
an express statement of intent, only that it be reasonable to believe that the person possessing
those materials has such an intention.
See 42 U.S.C. 2000aa(a).
Here, Garcia asserts, and the
two Civilian Alcohol Enforcement team members confirmed, that Garcia audibly identified
himself as a member of the press, a self-identification that would support the reasonable belief
that Garcia intended to disseminate his recording to the public.
Supp. 2d 744, 751-52 (D. Minn. 2010) (in considering
Cf Teichberg v. Smith, 734 F.
whether the plaintiff intended to
disseminate a recording to the public within the meaning of the PP A, noting that the plaintiff had
not identified himself to officers as a journalist).
The County's claim that the video card could be seized pursuant to the PPA's suspect
exception is also unpersuasive.
The suspect exception applies only if there is probable cause to
believe that the person possessing the materials committed a crime to which the materials relate.
For the County to be shielded by this exception, there would have to be probable cause to believe
that Garcia committed a crime and a further showing that his recording "relate [d]" to that crime
within the meaning of the PPA. See Sennett v. United States, 667 F.3d 531, 535-3 7 (4th Cir.
2012) (affirming district court's application of the PPA suspect exception because there was
probable cause to believe that plaintiff was involved in the vandalism that she had recorded).
48
Here, as discussed above, the only crime arguably committed by Garcia was disorderly conduct,
and whether there was probable cause to believe that Garcia committed that offense, and whether
the video recording related to that offense under the PP A, are open questions that cannot be
resolved without a trial.
Thus, the County's motion for summary judgment
on Count V is
denied.
CONCLUSION
For the reasons
set forth above, Defendants'
Motion for Summary
Judgment
is
GRANTED as to the claim for damages in Count I and the First Amendment retaliation claim
against Officer Baxter in Count II. The Motion is DENIED as to the claim for declaratory relief
in Count I, the First Amendment retaliation claim against Officer Malouf in Count II, and all
other counts at issue on the Motion.
Garcia's Cross Motion for Partial Summary Judgment is
GRANTED on Count III as to the offenses of hindering an arrest and second-degree assault only.
Garcia's motion is DENIED in all other respects. A separate Order follows.
Date: November 5, 2015
THEODORED.
United States Dis
49
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