Swagler v. Neighoff

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1737

ANGELA SWAGLER; ELIZABETH WALSH,

Plaintiffs - Appellees,

v.

NEIGHOFF, State Trooper, in his official and in his
individual capacity; BRADLEY, State Trooper, in his official
and in his individual capacity; RASINSKI, in his official
and in his individual capacity,

Defendants – Appellants,

and

HARFORD COUNTY; CITY OF BEL AIR, MARYLAND; TERRENCE
SHERIDAN, Colonel, in his official capacity; DONALD RAVADGE,
Bel Air Police Officer in his individual capacity; MARK
ZULAUF, Bel Air Police Officer in his official capacity;
ARMAND DUPRE, Bel Air Police Officer in his individual
capacity; L. JESSE BANE, Harford County Sheriff, in his
individual capacity,

Defendants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cv-02289-RDB)

Argued: March 24, 2010 Decided: October 18, 2010

Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.
Affirmed in part and reversed in part by unpublished per curiam
opinion.

ARGUED: Joshua Neal Auerbach, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellants. Timothy Donald
Chandler, ALLIANCE DEFENSE FUND, Folsom, California, for
Appellees. ON BRIEF: Douglas F. Gansler, Attorney General,
Baltimore, Maryland, for Appellants. Kevin Theriot, Dale
Schowengerdt, ALLIANCE DEFENSE FUND, Leawood, Kansas, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Maryland law enforcement officers arrested Appellees Angela

Swagler and Elizabeth Walsh, together with 16 others, as they

participated in a pro-life demonstration taking place along a

state highway in Harford County, Maryland. The Appellants,

Maryland State Troopers Christopher Bradley, Charles Neighoff,

and Walter Rasinski (“Appellants” or “the troopers”), having

dispersed the demonstrators one hour earlier at a nearby

location, and having consulted with a local prosecutor, effected

Appellees’ arrests and charged them with impeding traffic (among

other violations). Seeking damages as well as injunctive and

declaratory relief under federal and state law, Swagler and

Walsh filed a nine-count amended complaint against the troopers

and numerous other defendants. The troopers moved to dismiss,

or, in the alternative, for summary judgment, as to all federal

claims asserted against them in their individual capacities,

invoking qualified immunity. The district court concluded that

the request for qualified immunity was “premature” and denied

the troopers’ motion. In so ruling, the district court

explicitly declined to treat the troopers’ motion as a motion

for summary judgment. The troopers now bring this interlocutory

appeal from the district court’s denial of qualified immunity.

We conclude that the district court committed no abuse of

discretion in declining to consider the troopers’ motion as a

3
motion for summary judgment and, instead, in limiting its

consideration of the request for qualified immunity to the

amended complaint filed by Appellees and the attachments

thereto. Nevertheless, we further conclude that two of

Appellees’ claims fail as a matter of law. Accordingly, we

affirm in part and reverse in part. (Appellees’ motion to file

attachments to their brief is denied as moot.)

I.

The following facts are undisputed or are drawn from the

well-pled allegations contained in Appellees’ amended complaint

and set forth in the light most favorable to Appellees, the non-

movants in the district court.

At approximately 4:00 p.m. on Friday, August 1, 2008,

Swagler and Walsh, then 18 and 20 years old, respectively,

gathered with 20 to 30 other members of a pro-life/anti-abortion

group (all wearing blue T-shirts with large white lettering

conveying their fundamental message: “Pro-Life” on the front;

“Defend Life” on the back). The group staged a demonstration

(“the first demonstration”) at the intersection of state Route

24 (an 11-lane divided highway) and Route 924 in Harford County,

Maryland. There are no sidewalks in or at this intersection and

one of the troopers who regularly patrols in the vicinity

attested that he had never observed pedestrians in the area. A

4
grassy shoulder runs adjacent to Route 24 and there is a grassy

median separating the northbound and southbound lanes. The

intersection of Routes 24 and 924 is approximately one-half mile

north of the heavily-used Route 24 interchange with I-95.

The demonstrators held posters, some of which were as large

as three feet by five feet and included graphic images of

dismembered fetuses. 1 The demonstrators stood 20 to 40 feet

apart, taking care, they alleged, not to disrupt passing

motorists’ views of road signs.

By 4:20 p.m. that day, motorists driving through the

intersection and on Route 24 began to call the Maryland State

Police Barrack in Bel Air, Maryland. Specifically, between 4:20

p.m. and 4:40 p.m., the Barrack received approximately 20 calls

from motorists traveling through the area; eight of the calls

were recorded. (The rapid receipt of the calls apparently

overwhelmed the Barrack’s recording capacity.) The content of

the recorded calls reflect that the callers expressed two

sentiments: (1) disapproval of the public display of images of

dismembered fetuses and (2) concern about the impact of the

1
The demonstrators displayed large, full-color images of
the dismembered fetus known in the Pro-Life/Anti-Abortion
Movement as “Baby Malachi,” an image that has long been a staple
of such demonstrations. See World Wide Street Preachers’
Fellowship v. City of Owensboro, 342 F. Supp. 2d 634, 636
(W.D.Ky. 2004); New York ex rel. Spitzer v. Cain, 418 F. Supp.
2d 457, 462 n.2 (S.D.N.Y. 2006).

5
images on their own ability and that of others to drive safely.

At the time of the police response to the calls about the

demonstration, Friday evening rush hour was underway. The posted

speed limit on this portion of Route 24 is 55 miles per hour.

Upon her receipt of the motorists’ calls (and after

learning of others received by subordinates), the duty sergeant

at the Barrack dispatched Troopers Bradley, Neighoff, and

Rasinski to the scene. Trooper Bradley was the first to arrive,

followed by Rasinski and Neighoff. The troopers observed about

30 persons standing on and about the shoulders of the

intersection and on the median strip of Route 24 holding the

posters. The troopers informed the participants, incorrectly,

that county law required that they obtain a “permit” to conduct

the demonstration. When they learned the demonstrators had no

“permit,” the troopers ordered the group to “leave the area” and

to “leave the county,” specifically informing the demonstrators

that they would be arrested unless they discontinued their

demonstration. 2 After expressing disagreement with the troopers

2
Although the “leave the county” order was urged on us at
oral argument, in neither their amended complaint nor in their
affidavits did Appellees make that particular allegation.
Rather, the amended complaint alleges that Appellees were told,
“You need to pack up and go or you’re going to jail, that’s it.”
J.A. 50. In any event, Appellees knew they remained in Harford
County when they relocated within the town limits of Bel Air,
two miles north of their original location. They simply
miscalculated the jurisdictional reach of the state police. J.A.
(Continued)
6
over several minutes of dialogue with them, during which they

insisted that they had a First Amendment right to be where they

were, doing what they were doing, the demonstrators departed the

area. 3 In particular, Appellees told the troopers that because

the demonstrators wished to avoid arrest, they would comply with

the dispersal order. J.A. 49 (Am. Compl. ¶ 37).

Meanwhile, Trooper Charles Mohr (who is not a party to this

appeal) telephoned the Office of the State’s Attorney for

Harford County to seek a prosecutor’s advice regarding the

proper response to the demonstration. Trooper Mohr spoke with

Deputy State’s Attorney Scott Lewis, who opined, albeit somewhat

tentatively, that the demonstrators were likely violating the

county law that prohibits the obstruction of the free flow of

traffic and that the troopers would be “on good ground” to order

the demonstrators to leave the area. Lewis specifically noted

that the demonstration could cause hazards on the highway during

rush hour (arising from, among other things, distracted

79 (“We attempted to comply with the . . . troopers’ command by
moving down the street two miles.”).
3
Appellees contend that they and their group had conducted
similar demonstrations within the State of Maryland in the weeks
preceding the Harford County demonstration and they had never
been ordered to cease their activity.

7
motorists). Trooper Mohr related the substance of this

conversation by radio to Trooper Neighoff.

After their confrontation with the troopers at the

intersection of Routes 24 and 924, the demonstrators (including

Appellees) departed that area and resumed their demonstration

approximately two miles north, near or at the intersection of

Route 24 and Macphail Road (“the second demonstration”). That

location is just inside the Bel Air town limits but still within

Harford County. Appellees thought that they had left the

enforcement jurisdiction of the state police, but in fact, they

had not done so. They resumed their demonstration on the wide

grassy shoulder adjacent to Route 24; as at the prior location,

there were no sidewalks. At least ten motorists who observed the

second demonstration called the Bel Air Barrack to express

similar concerns about the nature of the posters and the impact

of the demonstrators’ presence on traffic safety. Only one of

these calls was recorded.

The same three troopers went to the scene of the second

demonstration, together with Trooper Mohr. There, Trooper Mohr

described to Trooper Neighoff his earlier telephone call with

Deputy State’s Attorney Lewis and Lewis’s advice. Sergeant Donna

Bohlen, the troopers’ superior officer (who was aware of Lewis’s

conversation with Mohr), directed the troopers via radio to

arrest the demonstrators. The troopers and other law enforcement

8
officers assisting them then arrested 18 of the demonstrators

(i.e., those whom the troopers recognized from their earlier

encounter at the intersection of Routes 24 and 924), including

Appellees, and transported them to the Barrack for processing

and charging.

At the Barrack, Trooper Mohr called Deputy State’s Attorney

Lewis again. Lewis advised Trooper Mohr that the demonstrators

should be charged with the following offenses: (1) disorderly

conduct, see Md. Code Ann., Crim. Law § 10-201(c)(2); (2)

disobeying a lawful order, see id. § 10-201(c)(3); and (3)

impeding traffic, see Harford County Code § 193-4(B)(1). 4 With

Lewis’s recommendation and at the order of Sgt. Bohlen, the

troopers charged all of the adult demonstrators with the

offenses that Lewis had identified. The Harford County State’s

Attorney entered a nolle prosequi of all the charges as to all

arrestees when the cases came on for trial several weeks after

the arrests.

II.

As relevant to this appeal, Swagler and Walsh sought

damages pursuant to 42 U.S.C. § 1983 against each of the

4
While one section of Harford County Code § 193-4 prohibits
“loitering,” the troopers did not charge any of the arrestees
with “loitering” -- only with impeding traffic.

9
troopers in his individual capacity on the following four

theories: (1) violation of the Fourteenth Amendment due process

guarantee based on “vague” “policies and actions;” (2) violation

of the Fourteenth Amendment’s substantive due process component;

(3) violation of the First Amendment free speech guarantee; and

(4) violation of the Fourth Amendment’s prohibition on

unreasonable seizures. The troopers filed pre-discovery

dispositive motions based on qualified immunity, providing

materials outside of the pleadings in support of the motion. The

district court declined to determine whether the troopers were

entitled to qualified immunity, concluding that the request was

“premature.” That is, particularly in light of a Fed. R. Civ. P.

56(f) affidavit from Appellees’ counsel seeking permission to

take discovery before filing a more substantive response to the

troopers’ dispositive motion, the district court concluded that

Appellees should be given an opportunity for discovery before

addressing the issue of qualified immunity.

Specifically, the district court ruled as follows. As to

the due process claims, the district court concluded that the

Amended Complaint sufficiently alleged violations of

constitutional rights, without specific mention of the issue of

qualified immunity. Swagler v. Harford County, No. 08-2289, 2009

U.S. Dist. LEXIS 47895, at *18-19 (D. Md. June 2, 2009). As to

the First Amendment claims, the court was persuaded that such a

10
claim was “highly fact-dependent.” By this, we take it that the

court focused on the issue, pressed by Appellees before us,

whether proof of the actual subjective motivation of the

troopers in ordering the cessation of the demonstration (or in

arresting the Appellees upon their defiance of that order)

required factual development of the record to inform the

qualified immunity inquiry. Id. As to the Fourth Amendment

unreasonable seizure claims, the district court essentially

concluded that the Appellees had satisfactorily alleged and/or

had satisfactorily generated a genuine dispute of material fact

as to whether the second demonstration (and perhaps the first as

well) had impeded traffic. Id. at *23.

III.

In this timely interlocutory appeal, over which we have

jurisdiction pursuant to 28 U. S. C. § 1291, we review solely

legal issues, see Mitchell v. Forsyth, 472 U.S. 511, 529 n.9

(1985); Johnson v. Jones, 515 U.S. 304, 313 (1995), applying a

de novo standard. 5 See, e.g., Johnson v. Caudhill, 475 F.3d 645,

5
We reject Appellees’ contention that we lack jurisdiction
over this appeal under the line of authorities recently
summarized in Culosi v. Bullock, 596 F.3d 195, 201-03 (4th Cir.
2010) (dismissing interlocutory appeal by county police officer
seeking reversal of district court’s denial of qualified
immunity at summary judge stage).

11
650 (4th Cir. 2007). Whether an asserted factual dispute is

material to qualified immunity is also a legal determination

subject to de novo review. See, e.g., Elliott v. Leavitt, 99

F.3d 640, 644 (4th Cir. 1996).

When evaluating a claim of qualified immunity, courts

traditionally engage in a two-step analysis, Wilson v. Layne,

526 U.S. 603, 609 (1999), considering first the threshold

question of whether the facts alleged, taken in the light most

favorable to the plaintiff, show that the defendants’ conduct

violated a constitutional right. Saucier v. Katz, 533 U.S. 194,

200-201 (2001). If so, the next step is to determine whether the

right was clearly established. Id. In undertaking this case-by-

case determination, courts ask “whether it would be clear to a

reasonable officer that his conduct was unlawful in the

situation he confronted.” Id. Importantly,

[i]n determining whether the right violated was
clearly established, we define the right in light of
the specific context of the case, not as a broad
general proposition . . . . If the right was not
clearly established in the specific context of the
case -- that is, if it was not clear to a reasonable
officer that the conduct in which he allegedly engaged
was unlawful in the situation he confronted -- then
the law affords immunity from suit.

McKinney v. Richland County Sheriff’s Dep’t, 431 F.3d 415, 417-

18 (4th Cir. 2005) (internal quotation marks and citations

omitted; bracket added). This inquiry is an objective one;

“[s]ubjective factors involving the officer’s motives, intent,

12
or propensities are not relevant.” Smith v. Reddy, 101 F.3d 351,

357 (4th Cir. 1996).

The Supreme Court has modified the strict two-tiered

approach. Courts are now authorized to evaluate the two factors

in the order most appropriate for the specific case. Pearson v.

Callahan, 129 S. Ct. 808, 818 (2009) (“The judges of the

district courts and the courts of appeals should be permitted to

exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at

hand.”).

IV.

The troopers contend that the district court erred in

declining to rule, even at this early stage of the case, that

qualified immunity shielded them from Appellees’ damages claims. 6

Specifically, they contend that as to the due process and

Fourth Amendment claims, as a matter of law, no constitutional

6
As the district court acknowledged, the Supreme Court
“repeatedly ha[s] stressed the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (alteration
added). See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.
1992) (“Because qualified immunity is designed to shield
officers not only from liability but from the burdens of
litigation, its establishment at the pleading or summary
judgment stage has been specifically encouraged.”).

13
violation can be shown under any plausible interpretation of the

facts, and therefore they are entitled to qualified immunity. As

to the First and Fourth Amendment claims, they further contend

that at the time they acted to disperse the demonstration and

then to arrest Appellees for violating the dispersal order,

there was no “clearly established” principle of federal

constitutional jurisprudence that prohibited local law

enforcement officers from doing so.

Appellees forcefully dispute the troopers’ contentions.

They focus most heavily on their First Amendment claims and

emphasize the alleged statement by Trooper Bradley that they

“leave the county.” They contend:

Even if [Appellees’] constitutionally-protected
speech in a public forum had caused some degree of
traffic disruption, that could not have formed a basis
to declare the entire county off-limits for free
speech activities. This is particularly true given the
dubious base upon which the Troopers solely rely to
show they were reasonable in arresting Plaintiffs for
obstructing traffic: anonymous phone calls from
passing motorists who disliked Plaintiffs’ message and
whose only allegations of disruption were based on
Plaintiffs’ message, not conduct. In short, the
linchpin of the Troopers’ qualified immunity claim is
their unconstitutional and unreasonable order to leave
the county; once this fact is pulled out, their
qualified immunity defense falls apart.

Appellees’ Br. at 7.

Having fully considered the arguments of the parties and

the controlling legal principles, we are constrained to agree

with Appellants as to the due process claims. As to the First

14
and Fourth Amendment claims, however, we hold that the district

court acted within its discretion in denying the troopers’

request for qualified immunity in advance of discovery.

V.

We first consider whether qualified immunity shields the

troopers from Appellees’ due process claims. We then consider

whether Appellees’ First Amendment and their Fourth Amendment

claims, respectively, must likewise yield to the troopers’

assertion of qualified immunity.

A.

Unsurprisingly, perhaps, in their briefing and arguments,

the parties have essentially ignored the Fourteenth Amendment

due process claims. 7 Nonetheless, we conclude that the district

court should have dismissed those claims.

It is well-settled that “[l]egislation may run afoul of the

Due Process Clause because it fails to give adequate guidance to

those who would be law-abiding, to advise defendants of the

nature of the offense with which they are charged, or to guide

courts in trying those who are accused.” Musser v. Utah, 333

7
To be sure, the troopers’ Notice of Appeal makes clear
that they appeal the denial of qualified immunity on the due
process claims as well as the First and Fourth Amendment claims.
J.A. 252.

15
U.S. 95, 97 (1948). Here, Appellees alleged that the troopers’

“policies and actions against [their] speech are

unconstitutionally vague, in that they neither define

sufficiently the standards utilized in governing citizens’

speech in public fora, nor do they protect against arbitrary and

discriminatory enforcement.” J.A. 62 (Am. Compl. ¶ 134). These

claims fail as a matter of law. First, the void-for-vagueness

doctrine focuses on legislation -– not “policies and actions.”

Second, the Appellees do not point to a specific Maryland State

Police policy or a specific action on the part of the troopers

that would be considered “vague.”

In any event, the troopers’ Fed. R. Civ. P. 12(b)(6) motion

to dismiss clearly invoked the qualified immunity doctrine vis-

à-vis Appellees’ due process vagueness claim because, if there

is no claim, then there is no constitutional violation based on

“clearly established” law. Chavez v. Martinez, 538 U.S. 760, 766

(2003) (Thomas, J.) (“In deciding whether an officer is entitled

to qualified immunity, we must first determine whether the

officer’s alleged conduct violated a constitutional right . . .

. If not, the officer is entitled to qualified immunity.”)

(internal citations omitted); see Siegert v. Gilley, 500 U.S.

226, 232 (1991) (noting that “the determination of whether the

plaintiff has asserted a violation of a constitutional right at

all” is a “necessary concomitant” to the threshold immunity

16
question). We hold that Appellees have not asserted and cannot

assert a cognizable due process “vagueness” claim against the

troopers and, therefore, qualified immunity applies to shield

the troopers from damages claims asserted on such a theory. Id. 8

Similarly, Appellees’ alleged substantive due process

claims are non-existent as a matter of law. The Supreme Court

explained in Conn v. Gabbert, “We have held that where another

provision of the Constitution ‘provides an explicit textual

source of constitutional protection,’ a court must assess a

plaintiff’s claims under that explicit provision and ‘not the

more generalized notion of “substantive due process.’” 526 U.S.

286, 293 (1999) (quoting Graham v. Connor, 490 U.S. 386, 395

(1989)). In the case at bar, the Appellees’ rights to free

speech and to freedom from unreasonable seizure are explicitly,

textually guaranteed under the First and Fourth Amendments,

respectively, as incorporated by the Fourteenth Amendment.

Accordingly, if Appellees have viable damages claims at all,

8
Indeed, the due process vagueness claims are clearly moot
because, on December 1, 2009, during the pendency of this
interlocutory appeal, Appellees filed a second amended complaint
in the district court in which they voluntarily dismissed the
due process vagueness claims against the troopers. See Colonial
Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 1989)
(observing that this court will take judicial notice of the
existence and content of the records of a court of record). They
assert the vagueness claim against certain municipal defendants
and supervisory officers only. See No. 08-2289, Docket No. 125
at ¶ 137 (D. Md. 12/1/09).

17
they must be rooted in those provisions and not in substantive

due process. Conn, 526 U.S. at 293.

B.

The district court essentially declined to consider, under

Fed. R. Civ. P. 12(b)(6), the applicability of qualified

immunity as to Appellees’ First Amendment claims. Although the

district court said very little about the First Amendment

claims, it basically concluded that whether the First Amendment

claims were based on a retaliation theory (as Appellees seem to

characterize them on appeal before us), see, e.g., Constantine

v. Rectors and Visitors of George Mason Univ., 411 F.3d 474,

499-500 (4th Cir. 2005), or on a theory of improper prior

restraint, see Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989), if the allegations in the amended complaint were true,

then such a claim would be made out.

We do not disturb the district court’s conclusion in that

regard. And this is so even though Appellees do not contend that

the troopers were actually individually, subjectively motivated

to squelch their speech based on its content. 9 Viewed in the

9
Any doubt concerning the gravamen of Appellees’ theory is
extinguished by an examination of the second amended complaint
filed in the district court during the pendency of this appeal.
Appellees had originally alleged that “the individual arresting
officers acted maliciously and with intent to violate the
constitutional and statutory rights of the Plaintiffs by
arresting [them].” J.A. 61 (emphasis and alteration added). In
(Continued)
18
light most favorable to Appellees, their contention seems to be

that the troopers are liable because they took adverse action

against Appellees (that is, they ordered the demonstration to

cease and then arrested Appellees) by acting as willing agents

of the motorists who called the Bel Air Barrack to complain,

according to Appellees, about the “content” of Appellees’

posters of dismembered fetuses. Under this iteration of

Appellees’ theory, the troopers culpably enforced a “heckler’s

veto.” 10 Thus, according to Appellees, the dispersal order

(“leave the county”) was not “content-neutral,” was not

“narrowly tailored” to serve significant or compelling

governmental interests, and did not leave open other channels of

communication. See Rock Against Racism, 491 U.S. at 791.

the second amended complaint, however, see supra n.8, Appellees
have specifically deleted in that allegation the phrase “the
individual arresting officers” and instead, have limited that
allegation to two supervisory officials. See No. 08-2289, Docket
No. 125 at ¶ 123 (D.Md. 12/1/09).
10
See Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966);
Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985)
(“Historically, one of the most persistent and insidious threats
to first amendment rights has been that posed by the ‘heckler's
veto,’ imposed by the successful importuning of government to
curtail ‘offensive’ speech at peril of suffering disruptions of
public order . . . . Though this ‘veto’ has probably been most
frequently exercised through legislation responsive to majority
sensibilities, the same assault on first amendment values of
course occurs when, as here, it is exercised by executive action
responsive to the sensibilities of a minority.”) (citations
omitted), cert. denied, 476 U.S. 1159 (1986).

19
Furthermore, Appellees contend, their arrests constituted

retaliation based on the content of their speech. They

specifically allege they are “chilled” from further pro-life

demonstrations in Harford County as a result of the troopers’

actions and that they suffer from several adverse emotional and

psychological effects from their arrests. J.A. 62.

Whether Appellees will be able to sustain their damages

claims against the troopers and overcome the assertion of

qualified immunity, either at the summary judgment stage or

later on the basis of jury factfinding if summary judgment is

denied, we need not and do offer an opinion in this

interlocutory appeal. Manifestly, the “pure speech” quality of

images of a dismembered fetus (at least as the image is deployed

in the pro-life movement, see supra n.1) counsels our respect

for Appellees’ claims. See Am. Legion Post 7 v. City of Durham,

239 F.3d 601, 606 (4th Cir. 2001) (“‘[c]ommunication by signs

and posters is virtually pure speech’”) (citation omitted).

On the other hand, however, in ordering the cessation of

the first demonstration, the troopers arguably acted reasonably

and on a content-neutral basis to address a risk of automobile

accidents. Cf. Lytle v. Doyle, 326 F.3d 463, 470 (4th Cir. 2003)

(observing that “the State may act to protect its substantial

and legitimate interest in traffic safety” consonant with First

Amendment protections) (citations omitted); Ovadal v. City of

20
Madison, 469 F.3d 625, 630 (7th Cir. 2006) (observing that

removal of a protester carrying large signs on busy highway

overpass deemed content-based if his “message angered drivers

who then reacted and were distracted from the task of driving

safely[,]” but content-neutral if his “presence on that day and

under those driving conditions created a ‘spectacle’ that led

some drivers to be distracted from the task of safely

navigating” the highway) (emphases in original). 11 Whether that

is so remains to be seen after Appellees have taken discovery.

The district court did not err or commit an abuse of discretion

in so concluding.

C.

What we have said regarding the First Amendment claims

largely disposes of the troopers’ assertion that the district

court erred in declining to address under Fed. R. Civ. P.

12(b)(6) the applicability of qualified immunity as to the

Fourth Amendment unreasonable seizure claims. “This Court has

held that the Fourth Amendment right to be arrested only on

11
Of course, Appellees’ First Amendment rights are not
limitless. See United States v. Grace, 461 U.S. 171, 177-78
(1983) (quoting Adderley v. Florida, 385 U.S. 39, 47-48 (1966))
(“We have regularly rejected the assertion that people who wish
‘to propagandize protests or views have a constitutional right
to do so whenever and however and wherever they please.’”).

21
probable cause is clearly established. See Smith v. Reddy, 101

F.3d 351, 356 (4th Cir. 1996).” Henderson v. Simms, 223 F.3d

267, 273 (4th Cir. 2000). To succeed on their Fourth Amendment

claims, Appellees must establish that the troopers unlawfully

arrested them. Id. An unlawful arrest is one effected in the

absence of probable cause. See, e.g., Draper v. United States,

358 U.S. 307, 310-11 (1959).

As explained above, viewed in the light most favorable to

Appellees, the allegations in the amended complaint plausibly

alleged an absence of probable cause and that the absence of

probable cause would have been clear to a reasonable law

enforcement officer. Thus, the request for qualified immunity

was properly denied on the face of the amended complaint. 12

12
The troopers contend that a reasonable officer
confronted with the same situation as were they at the second
demonstration would have believed that there was probable cause
to arrest. The Eighth Circuit has decided a case with almost
identical facts to the case at bar. The plaintiffs in Frye v.
Kansas City Police Dep’t, 375 F.3d 785 (8th Cir. 2004), were
pro-life demonstrators who were arrested under a Kansas City
ordinance that made it “unlawful for any person to . . . stand .
. . either alone or in concert with others in a public place in
such a manner so as to [o]bstruct any public street, public
highway . . . by hindering or impeding the free and
uninterrupted passage of vehicles, traffic, or pedestrians.” Id.
at 788. The court held that the arresting officers “reasonably
interpreted the ordinance as prohibiting conduct which
distracted drivers and thereby obstructed a public street by
‘hindering or impeding the free and uninterrupted flow of
traffic.’” Id. at 792. The court further held that the arresting
officers were entitled to qualified immunity because (1)
objectively, probable cause was at least arguable; (2)
(Continued)
22
 VI.

For the reasons stated herein, the order of the district

court denying qualified immunity is

AFFIRMED IN PART AND REVERSED IN PART.

consultation with a prosecutor prior to an arrest weighs heavily
in favor of immunity; and (3) it is immaterial, for purposes of
the qualified immunity analysis, whether it was the subjective
intent of the arresting officer to suppress the arrestees’
speech. Id. We do not speculate whether the outcome here will
track the outcome in Frye; it suffices to observe that Frye was
decided on motions for summary judgment after discovery, see 260
F.Supp.2d 796 (W.D. Mo. 2003), not on pre-discovery motions to
dismiss.

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