Swagler v. Sheridan, 2011 U.S. Dist. LEXIS 74840

Background

Plaintiffs Swagler and Walsh participated in a 2008 pro-life demonstration on Route 24 in Harford County, Maryland, organized by Defend Life, Inc., with police responding to traffic and safety concerns.
Defendants were Maryland State Police officers Neighoff, Bradley, Rasinski, Bohlen, Mohr, and Meades, who ordered demonstrators to disperse and later arrested several participants.
An impromptu, countywide dispersal order allegedly restricted speech by closing Harford County to the demonstration based on protesters’ content, not merely traffic concerns.
The dispersal led to arrests of eighteen demonstrators; searches were conducted at the Barrack and holding cells, with some female arrestees subjected to brief inspections described as “strip” searches.
Two related cases were consolidated in 2010; discovery concluded; motions for summary judgment were resolved in part against defendants and in part for plaintiffs.
The court’s analysis centers on First and Fourth Amendment claims, with related state-law and Fifth Amendment considerations discussed as applicable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the dispersal order violated the First Amendment.	Swagler contends the countywide dispersal order restricted protected speech.	Defendants argue no First Amendment violation given traffic and safety concerns and broad discretion.	Yes; order violated First Amendment as content-based and not narrowly tailored.
Whether arrests were supported by probable cause under the Fourth Amendment.	Arrests were without probable cause given unconstitutional dispersal and lack of place-specific violations.	Arrests based on disobeying a lawful order and traffic-related concerns.	No probable cause; arrests violated Fourth Amendment.
Whether the searches of female arrestees were unconstitutional strip searches under the Fourth Amendment and Fourteenth Amendment equal protection.	Strip searches were intrusive and gender-specific.	Searches were reasonable incident to arrest.	Searches were reasonable and not unconstitutional strip searches; no equal-protection violation.
Whether the First Amendment retaliation claim should be dismissed as lacking causation/motive evidence.	Defendants’ actions were retaliatory for protected speech.	Motivation disputed; genuine issue of material fact.	Summary judgment denied on retaliation claim; issue for trial.
Whether state law claims and qualified immunity shield defendants from liability.	State claims proceed; immunity should not bar relief.	MTCA immunity and qualified immunity apply where rights were not clearly established.	Qualified immunity denied as to First/Fourth Amendment violations; state-law claims limited accordingly.

Key Cases Cited

Frisby v. Schultz, 487 F.3d 474 (U.S. 1988) (public streets are traditional public fora; broad protections for speech in public forums)
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (U.S. 1983) (time, place, and manner restrictions in traditional public fora)
Bachellar v. Maryland, 397 U.S. 564 (U.S. 1970) (no heckler’s veto; government cannot suppress speech due to audience reaction)
Marcavage v. City of Philadelphia (or United States v. Marcavage), 609 F.3d 264 (3d Cir. 2010) (content-based restraints and public-order concerns implicated in protest contexts)
Texas v. Johnson, 491 U.S. 397 (U.S. 1989) (government cannot prohibit expression simply because it is offensive)
Frye v. Kansas City, Missouri Police Department, 375 F.3d 785 (8th Cir. 2004) (distinction between content-based restrictions and time/place/m manner; immunity context)