ORDER AND OPINION
This сase involves constitutional challenges to Virginia Code Section 46.2-930, which prohibits loitering on certain bridges designated by the Commissioner of the Virginia Department of Transportation. The complaint was filed on August 27, 1999, and on the same day the plaintiffs moved the Court for a preliminary injunction. On November 2, the Court granted a preliminary injunction preventing the enforcement of the challenged statute. On the heels of the plaintiffs’ motion for preliminary relief, Lt. Charles Brewer, moved to dismiss the claims against him in his official capacity, and for summary judgment as to claims against him in his individual capacity.
The Court did not consider the merits of Brewer’s motions during the review of the motion for preliminary relief because the briefing had not been completed. On November 3, the Court conducted a hearing on Brewer’s motions and tоok the motions under advisement. The Court has since thoroughly considered the legal issues raised in Brewer’s motions, and for the reasons set forth below, the Court hereby GRANTS the motions dismissing the claims against Brewer both in his individual capacity and in his official capacity.
FACTUAL BACKGROUND
The general facts giving rise to the claims in this case were set forth in the Court’s November 2 Opinion granting the plaintiffs’ motion for preliminary relief. However, additional facts more specific to Brewer and his involvement with the July 16 protest as the police officer from the Norfolk Police Department in charge are necessary for the Court’s review of the pending motions. The facts set forth below are taken from the plaintiffs’ complaint, and where summary judgment is at issue, the facts are additionally taken from Brewer’s affidavit submitted in support of his motion for summary judgment, the video of the July 16 protest and arrest submitted by the plaintiffs in opposition, along with the attached affidavits of plaintiffs’ counsel, Michael DePrimo, the videogra-pher, Ronald Brock, and a fellow protestor, Dennis Greene.
On July 16, Brewer, a police officer with more than 25 years of experience, was notified by the police dispatcher that there was a group of protestors located on the Piccadilly Overpass in Norfolk. After informing his supervisors of the ongoing protest, Brewer was instructed to proceed to the scene of the protest and to order all protestors to either leave or face charges under Virginia’s Code Section 46.2-930. Brewer claims that until his discussions with his supervisor on July 16, he was not aware of this statute.
Brewer submits that prior to leaving the police station, he made copies of Section 46.2-930 for the protestors he anticipated. By the time Brewer arrived at the overpass, a Virginia state trooper had already arrived. Brewer noted the existence of “No Loitering” sign at each entrance to the overpass. Brewer claims that he observed the traffic traveling below the overpass at 4:30 p.m. on July 16, and that it was “heavy,” presumably indicative of a normal rush hour traffic on Interstate 64. Brewer claims that when he arrived, traffic was beginning to “back up” and that he heard several cars with tires “squealing.”
*733 The majority of the protestors on the overpass were either carrying or had posted on the overpass large signs, some depicting pictures expressing their opposition to abortion. The signs were propped against the overpass fencing and were directed at the oncoming traffic. Brewer claims that based on his observations, he believed the protestors were intentionally attempting to distract the cars traveling on the Interstate. After observing the scene, Brewer, together with the Virginia State Trooper, approached the protestors, and provided each protestor with a copy of Va.Code Ann. § 46.2-930, the anti-loitering statute applicable to designated bridges. As set forth fully in the Court’s November Opinion, after receipt of a copy of the challenged statute and some explanation from Lt. Brewer, the plaintiffs ceased their protest and vacated the pedestrian bridge. However, two of their fellow-protestors not party to this case refused to cease protests and as a result, were arrested by Lt. Brewer.
Based on the posted signs and his instructions from his supervisor, Brewer submits that on July 16 he believed that the challenged statute was in effect as to the overpass in question. He additionally claims that he was unaware of any case law or precedent regarding the validity of similar loitering statutes. Finally, and not surprisingly, Brewer claims that he has not received training regarding the constitutionality of the statute. However, subsequent to events on July 16, on August 30, Brewer was informed that the Norfolk City Attorney had instructed the Police Department to cease enforcement of the statute. Brewer also states that he was present in the Norfolk District Court on September 9, 1999, when the charges pending against the two protestors who had been arrested on July 16 were nolle рrossed.
Brewer’s motion to dismiss has two focuses. First, as to the claims against Brewer in his individual capacity, he argues that the claims should be dismissed and summary judgment should be granted pursuant to the doctrine of qualified immu'nity. Second, as to the claims against Brewer in his official capacity, he argues that the plaintiffs have failed to state a claim for which relief can be granted, and even if they had, that he is not the proper defendant as a policy maker for the City of Norfolk.
ANALYSIS
I. Standards of Revieiv
A. Motion for Summary Judgment
Brewer moves for summary judgment as to the claims pending against him in his individual capacity; ie., those claims related to Brewer’s actions on July 16 contained in Counts 1 and 2. Specifically, Brewer requests that the Court grant summary judgment based on a finding of qualified immunity.
The standard for granting summary judgment is met if after a review of all of the pleadings, depositions, affidаvits and other documents submitted by the parties, the court finds that there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc.,
In support of their conflicting positions, Brewer, submitted an affidavit, and the *734 plaintiffs submitted a video of the protest and subsequent arrest by Brewer. In considering the motion for preliminаry relief, the Court reviewed both of these eviden-tiary items. In the plaintiffs’ opposition memorandum to Brewer’s motion, the plaintiffs specifically referred to facts outside of the pleadings and made certain arguments regarding “disputes of fact.” However, at the hearing on this matter, the plaintiffs objected to Brewer’s motion for summary judgment, and asked the Court to defer a decision until the completion of discovery. Based on the analysis that follows, the Court finds that summary judgment is appropriate as to the claims for individual liability and that discovery will not change the Court’s determination.
B. Motion to Dismiss
Brewer has additionally moved to dismiss the official capacity claims pending against him pursuant to Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss for failure to state a claim for which relief can be granted, the facts should be taken as true and construed in the light most favorable to plaintiff.
See Scheuer v. Rhodes,
II. Breiver in His Individual Capacity
Brewer argues that he is entitled to qualified immunity regarding the plaintiffs’ claims that he personally violated their constitutional rights. Qualified immunity protects government officials performing discretionary functions from civil liability so long as their conduct does not violate a clearly established statutory or constitutional right of which a reasonable person should have known.
Winfield v. Bass,
The plaintiffs responded to the defendant’s motion by setting forth the facts they claim are in dispute and prohibit summary judgment for the claims of individual liability. The alleged disputed facts include: (1) whether Brewer should have known that the plaintiffs’ activities were protected under the First Amendment, (2) whether Brewer should have known the challenged statute was unconstitutional, (3) whether the plaintiffs’ protest caused a safety hazard, and (4) whether Brewer acted with deliberate indifference to the plaintiffs’ rights by making a decision to threaten arrest prior to his arrival and assessment of the protest. However, these supposedly disputed facts do not prohibit the entry of summary judgment. First, each of the “disputed facts” actually amounts to a dispute of law which is addressed and resolved herein. Second and also addressed herein, even the Court found that the third and fourth disputes were factual rather than legal, still summary judgment would be appropriate because the disputes are not clearly material to the issues before the Court.
The Supreme Court analyzed the standards for granting qualified immunity earlier this year in
Conn v. Gabbert,
A. Whether Brewer’s Conduct Violated the Plaintiffs’ First Amendment Rights
The plaintiffs’ claims against Brewer are that he violated their First Amendment rights to freedom of speech and freedom to exercise religious beliefs when he enforced Virginia Code Section 46.2-930 on July 16, and ordered the plaintiffs to cease and desist in their protesting efforts. See Counts 1 and 2. For their claims against Brewer in his individual capacity, plaintiffs seek nominal and punitive damages. See Prayer for Relief ¶ (f).
The uncontroverted evidence in this case is that Brewer, pursuant to the instruction from his supervisor, proceeded to the scene of the protest intending to threaten and if necessary, arrest the protestors pursuant to Virginia Code Ann. § 46.2-930. In order to determine whether the plaintiffs’ First Amendment rights were violated by Brewer’s actions on July 16, the Court must engage in a two-part inquiry.
First, the Court must determine whether the plaintiffs’ speech was protected by the First Amendment. Courts have consistently held that peaceful picketing and protesting are forms of expression protected by the First Amendment.
See United States v. Grace,
Second, the Court must determine whether Brewer’s actions in impeding the plaintiffs’ exercise of First Amendment speech were justified. This analysis is more complicated that the previous discus
*736
sion of the protected nature of the speech. A determination on this issue “requires the weighing of two factors: (1) the type of forum where the speech takes place, and (2) the nature of the governmental restriction.”
Shopco Distribution Co., Inc. v. Commanding General of Marine Corps Base, Camp Lejeune, North Carolina,
Under
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
A “created public forum” is a place whiсh the government opens to the public as a place for expressive activity.
Id.
(citing
Perry,
In this case, the speech at issue occurred on a pedestrian walkway, or catwalk, which passes over an major roadway, Interstate 64. Significantly, nothing in the record indicates that the overpass was built for anything other than for what is expected — to aid the general public in crossing over the highway, similar to a sidewalk which protects pedestrians from traffic.
Cf. United States v. Kokinda,
As dictated by
Shopco,
the Court must additionally determine the nature of the government restriction, in this case Brewer’s application of Virginia Code Section 46.2-930.
Shopco,
While Brewer’s actions were presumably content neutral, two issues concerning Brewer’s conduct on July 16 and his attempts to enforce the challenged Virginia statute trouble the Court. First, as this Court previously found in its consideration of the plaintiffs’ motion for preliminary relief, the plaintiffs were not loitering, under an ordinary definition of what it means to “loiter.” See November 1, 1999 Opinion. On July 16, Brewer proceeded to the scene of the plaintiffs’ protest with a copy of Virginia Code Section 46.2-930 in hand, and with the intent to challenge the plaintiffs’ conduct as loitering and order that they cease their protest. As he planned, Brewer arrived at the overpass and threatened the plaintiffs with arrest under Virginia Code Section 46.2.-930, which without definition or inclusion of speсific intent provision, prohibits loitering on designated bridges in the Commonwealth. The plaintiffs ceased their First Amendment speech at the direction of Brewer. However, they were not loitering.
Second, the Commonwealth submitted at the time of the preliminary injunction hearing that while undisputedly there was a sign posted prohibiting loitering, the pedestrian crosswalk on which the loitering occurred had not been officially designated pursuant to Virginia Code Section 46.2-930. Notably, the counsel for the Commonwealth effectively conceded that to this extent, the plaintiffs were improperly threatened with arrest.
See
Transcript of PI Hearing at 32. For these two reasons, application of Section 46.2-930 to the plaintiffs’ protesting activities presents serious constitutional questions outside of the constitutionality of the challenged statute.
Hoffman,
Therefore, to reiterate the Court’s findings set forth above, the Court FINDS that the plaintiffs’ conduct on the date of the threatened arrest,
i.e.,
picketing and posting signs on the overpass expressing
*738
their opposition to abortion, constituted speech normally protected by the First Amendment. Furthermore, the Court FINDS that when Brewer threatened the plaintiffs with arrest under Va.Code Section 46.2-930, and thereby impeded their exercise of protected speech by applying the statute against them (whether properly or not), he violated the plaintiffs’ constitutional rights to freedom of speech, and perhaps their Due Process “liberty” rights, as defined by the Supreme Court in
City of Chicago v. Morales,
B. Whether the Law was “Clearly Established”
Although the Court finds that the police action challenged in this case violated the plaintiffs’ First Amendment rights, still Brewer may be entitled to qualified immunity if the Court finds that the law was not clearly established at the time of the alleged violation. As explained above, government officials are entitled to qualified immunity as a defense to civil liability insofar as their conduct does not violate a clearly established right of which a reasonable persоn would have known.
Harlow v. Fitzgerald,
In the context of the Fourth Amendment, the Court recently noted that it could be said that any violation of the Fourth Amendment is clearly established.
Wilson,
In this case, Brewer argues that the constitutionality of Section 46.2-930 was not clearly established at the time of the arrest and threatened arrests of the plaintiffs. Specifically, because the Section 46.2-930 had not béen officially adjudicated as unconstitutional in July 1999, Brewer argues that he is entitled to qualified *739 immunity. As the plaintiffs have suggested, the Court believes the defendant has misguided the inquiry. Rather, the appropriate question is whether in 1999 a reasonable officer could have believed that arresting or threatening the plaintiffs with arrest for their anti-abortion protest conducted on a pedestrian crosswalk under a state-enacted loitering law was unlawful, based on the clearly establishеd law regarding First Amendment rights. 2 While the constitutional questions surrounding a person’s First Amendment rights are by no means elementary, the Court FINDS based on the law outlined above that in July of 1999, a person had a clearly established right to protest their individual beliefs on traditional public fora, such as sidewalks and pedestrian crosswalks, without fear that their actions would be subject to the criminal confines of a state-enacted loitering law.
C. The Reasonableness of Brewer’s Actions
Based on the above findings that the plaintiffs’ First Amendment rights were violated and that their rights were clearly established in July 1999, the Court must now determine whether Brewer’s conduct is nonetheless protected by qualified immunity based on his objective reasonableness.
See Wilson,
Brewer argues that he did not, and a reasonable officer would not have, realized under the circumstances in this case that threatening the arrest of the plaintiffs under a valid Virginia statute could constitute a violation of their First Amendment rights. This Court agrees. Several aspects of the factual background of this case convince the Court that Brewer’s actions were reasonable. First, Brewer relied on the authority of the legislature and its enactment of constitutional laws. In
Grossman v. Portland,
Second, Brewer was not a renegade police officer that located an obscure and unused statute and made an impromptu decision to enforce the law. Rather, Brewer’s actions were based on his immediate supervisor’s specific instructions that “persons loitering on the pedestrian bridge ... who refused to leave were to be charged under Virginia Code § 46.2-930.” Brewer Affidavit at ¶ 4. As the Supreme Court acknowledged in
Pierson,
“a policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty [if he does not follow his supervisor’s orders] ... and be mulcted in damages if he does.”
Pierson,
Third, Brewer submits that the scene at the Overpass justified his reaction and reliance on the statute. Brewer claims that when he arrived the protestors were causing a traffic safety hazzard. The plaintiffs specifically dispute this factual assertion made by Brewer, and use this alleged factual dispute as a basis for their opposition to summary judgment. The plaintiffs rely on their attached video tape in support of their dispute as to whether there was a safety hazard posed by their conduct. The Court does not find the factual dispute regarding the highway safety on the date of the arrest a factual dispute which would prevent the entry of summary judgment. On a claim of qualified immunity, whether the police officer’s actions were justified according to the plaintiffs perspective is not the appropriate inquiry. Instead, the reasonableness of the officer’s conduct is judged based on the perspective of the officer, and should be decided as a matter of law.
Wilson,
In
Sigman,
the Fourth Circuit was presented with a case where an officer shot and killed a suspect based on the officer’s belief that the suspect presented a danger to his life and to the life and safety of others.
Sigman,
*741 Finally, based on the undisputed facts before the Court including the plaintiffs’ video of the events that occurred on July 16, Brewer’s actions at the overpass were reasonable. From the facts before the Court, he remained calm, acted professionally, and courteously undertook the arrest of the protestors after warning each protestor and providing each protestor with a copy of the statute prior to any arrests. Had Brewer been unnecessarily forceful or violent toward the protestors, perhaps the Court would not consider Brewer’s conduct and reliance on the statute as reasonable.
Based on the specific circumstances in this case, the Court finds that Brewer’s actions on July 16 were objectively reasonable, and that Brewer is entitled to qualified immunity for the claims pending against him in his individual capacity. Therefore, Brewer is DISMISSED from this action to the extent he is sued in his individual capacity.
II. Brewer in his Official Capacity
As set forth above, Brewer is additionally sued in his official capacity as Lieutenant of the Norfolk Police Department. Suing a governmental official in his or her official capacity is essentially the same as suing the government itself.
See Kentucky v. Graham,
Under
Monell v. Dep’t of Social Services of City of New York,
A Whether Brewer is an Official Policy Maker
As an initial matter, in support of his motion to dismiss, Brewer argues that he is not the proper party to represent the City of Norfolk or any other official entity in this case. “Whether a particular defendant has final policy making authority is a question of state law.”
City of St. Louis v. Praprotnik,
In support of his motion to dismiss the official capacity claims, Brewer points the Court to the Norfolk City Charter, which provides that City’s director of public safety is in charge Of the police department. See Charter at §§ 59-60 (attached Brewer’s Memo in support of MSJ). Furthermore, pursuant to the Norfolk City Code, the City Manager acts as the director of public safety. Norfolk City Code, § 2-33.1 (attached to Brewer’s Memo). Based on the City Charter and the City Code, the defendant argues that if any individual could be sued in this case for the municipal policies of the City of Norfolk or its police department, it would be the city manager. 5 This Court agrees.
Based on the information contained in the City Charter and City Code, the Court FINDS that Brewer was not properly named in his official capacity, and the claims against him in his officiаl capacity must be dismissed.
B. Whether the Claims are Sufficiently Plead
Second, Brewer (or the City) argues that even if the proper party were named, still the plaintiffs’ municipal policy claims fail because the plaintiffs have failed to properly allege a municipal policy of violating citizen’s First Amendment rights. In rebuttal, the plaintiffs contend that it is the “policy” of the City to enforce the statutes of the Commonwealth, including Section 46.2-930. Because the plaintiffs contend that Section 46.2-930 is unconstitutional, the plaintiffs argue that the City’s policy of enforcing the law is also uneonsti-tutional, and that it should be held liable. The plaintiffs correctly assert that a municipal policy can be established, under certain circumstances, by a single act. However, the plaintiffs miss the final caveat of the legal premise on which they rely- — the single act must be somehow related to the “a final decision maker” or “policy maker” in order for the act to substantiate a municipal policy.
See Praprotnik,
It is well recognized that pleading standards should not be increased based on the naming of a party in his or her official capacity or by the naming of a municipality. The plaintiffs rely on
Jordan by Jordan v. Jackson,
Thе Court has reviewed the allegations against Brewer in his official capacity. The plaintiffs allege that “all of the acts of the Defendants ... were conducted under the color and pretense of the statutes, ordinances, regulations, customs, and usages of the City of Norfolk and/or Commonwealth of Virginia.” See Complaint ¶ 25. The plaintiffs concede that Paragraph 25 is the only paragraph addressing municipal liability. However, they argue that it is sufficient to form the basis of a claim under Section 1983. 6
The Court recognizes the pleading standards for claims against municipalities, and does not imply in this ruling that there is a heightened pleading standard where claims are made against municipalities.
Edwards,
For these two reasons, the claims against Brewer in his official capacity are DISMISSED without prejudice. However, the Court will lоok favorably upon plaintiffs should they file a timely motion to amend their complaint to properly name the appropriate City officials, and to re-plead their allegations against a municipal defendant.
CONCLUSION
For the reasons set forth above, the Brewer’s motion to dismiss is GRANTED.
It is so ORDERED.
The Clerk is DIRECTED to send a copy of this Order and Opinion to all counsel.
Notes
. In this Opinion, the Court specifically declines to rule on the constitutionality of the challenged statute. Instead, this Opinion is limited to the constitutionality of Brewer's application of the statute and his conduct generally. The constitutionality of the statute was addressed in a preliminary matter in this Court's November Opinion, and it will be more fully addressed at a later date, likely in the context of a dispositive motion filed by the official defendants.
. While submitting that this is not the prоper inquiry before the Court, the plaintiffs nonetheless argue that Brewer should have known that the unconstitutionality of the loitering laws was clearly established based on the Virginia Court of Appeals case,
Coleman v. City of Richmond,
where the court found a Richmond loitering ordinance unconstitutional.
. The court gave the Holocaust and the My Lai massacre as examples of when an officer should not be shielded by qualified immunity "simply because they were enforcing policies or orders promulgated by those with superior authority.”
Grossman,
. The Court need not make a factual determination as to the actual safety of the plaintiffs’ actions on July 16. As set forth in the Court’s November Opinion, the Court has grave concerns regarding the wisdom of picketing directly above interstate traffic with the specific *741 intent of distracting drivers traveling below the overpass.
. In Brewer’s motion to dismiss, James Oliver is identified as Norfolk’s current City Manager. However, the August 1999 letter in this case from the City agreeing to the suspension of the challenged statute is from the City Attorney’s office, not the City Manager.
. The plaintiffs additionally argue in their legal memorandum that it is the City’s policy to enforce the law enacted in Virginia, and that the City has an inadequate training program for its officers, and therefore, should be held liable as a municipality. The defendants argue at length as to whether such a claim or similar claims can survive a motion to dismiss for failure to state a claim. See Brewer's Reply Memo, at pp. 5-9, 12-15. However, these allegations are not contained in the Complaint before the Court.