70 F.4th 726
4th Cir.2023Background
- On Feb. 5, 2018, Jeff and Kevin Hulbert and others picketed on a 15.5-foot public sidewalk near the Maryland State House (adjacent to Lawyers’ Mall). The group sought visibility to lawmakers.
- Sergeant Brian Pope (Maryland Capitol Police) was instructed by supervisors to evaluate and, if necessary, relocate the demonstration to Lawyers’ Mall for safety.
- Pope ordered the picketers to move off the sidewalk onto Lawyers’ Mall; some complied, others refused. Pope warned of arrest, called backup, and arrested Jeff and Kevin Hulbert after they disobeyed.
- The Hulberts were cited under Maryland law; additional citations followed but all charges were dropped days later.
- Plaintiffs sued under 42 U.S.C. § 1983 asserting: (1) First Amendment right to demonstrate; (2) First Amendment right to film police; (3) First Amendment retaliatory-arrest; and (4) Fourth Amendment unreasonable seizure. The district court denied qualified immunity on those four claims; Pope appealed interlocutorily to the Fourth Circuit.
- The Fourth Circuit reversed, holding Pope entitled to qualified immunity because a reasonable officer could have believed the orders were lawful time, place, or manner restrictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment — right to demonstrate: whether Pope’s order to move off the sidewalk violated the right to protest | Hulbert: order was not justified by a real safety need; factual disputes preclude summary judgment | Pope: order was a content-neutral time/place/manner restriction serving public-safety interest and leaving ample alternatives | Held: Qualified immunity for Pope — reasonable officer could view order as lawful time/place/manner restriction; reversed. |
| First Amendment — right to film police: whether ordering Kevin to back up and arresting him violated a clearly established right to film | Hulbert: filming is protected and Pope’s order unreasonably interfered; factual disputes preclude immunity | Pope: Kevin could still film from off the sidewalk; any right to film is subject to reasonable time/place/manner limits | Held: Qualified immunity for Pope — no clearly established right to film at close proximity immune from reasonable restrictions. |
| First Amendment — retaliatory arrest: whether arrest was retaliation for speech | Hulbert: arrest was retaliatory because order was unconstitutional | Pope: arrest was for failure to obey a lawful order, so probable cause defeated retaliatory claim | Held: Qualified immunity for Pope — reasonable belief in lawfulness of order gave probable cause, defeating retaliatory claim. |
| Fourth Amendment — unreasonable seizure: whether arrests lacked probable cause | Hulbert: disorderly arrest without probable cause because underlying order was unlawful | Pope: arrest was for failure to obey a lawful police order under Md. law; probable cause existed | Held: Qualified immunity for Pope — probable cause reasonably believed to exist; no unreasonable seizure. |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (tests for permissible time, place, manner restrictions)
- McCullen v. Coakley, 573 U.S. 464 (2014) (upholding reasonable time/place/manner restrictions to protect safety/access)
- Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (First Amendment does not guarantee protest at all times/places)
- District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (qualified immunity protects reasonable but mistaken judgments; two-step inquiry)
- Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (probable cause defeats a retaliatory-arrest claim)
- Ross v. Early, 746 F.3d 546 (4th Cir. 2014) (government interest in safety, order, accessibility of streets/sidewalks supports time/place/manner restrictions)
- Anderson v. Creighton, 483 U.S. 635 (1987) (objective legal reasonableness standard for qualified immunity)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified immunity protects reasonable, but mistaken, judgments)
- Plumhoff v. Rickard, 572 U.S. 765 (2014) (officers make split-second judgments in tense, rapidly evolving situations)
- Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017) (recognizing right to record police subject to reasonable time/place/manner limits)