Filed: Apr. 29, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2202 ROBERT HARRISON, Plaintiff - Appellant, v. CHARLIE T. DEANE, individually and in his official capacity as Chief of the Prince William County Police Department; MICHAEL SULLIVAN, individually and in his official capacity as a member of the Prince William County Police Department; JOHN MORA, individually and in his capacity as a member of the Prince William County Police Department; JOHN DOES 1-10, individually and in th
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2202 ROBERT HARRISON, Plaintiff - Appellant, v. CHARLIE T. DEANE, individually and in his official capacity as Chief of the Prince William County Police Department; MICHAEL SULLIVAN, individually and in his official capacity as a member of the Prince William County Police Department; JOHN MORA, individually and in his capacity as a member of the Prince William County Police Department; JOHN DOES 1-10, individually and in the..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2202
ROBERT HARRISON,
Plaintiff - Appellant,
v.
CHARLIE T. DEANE, individually and in his official capacity
as Chief of the Prince William County Police Department;
MICHAEL SULLIVAN, individually and in his official capacity
as a member of the Prince William County Police Department;
JOHN MORA, individually and in his capacity as a member of
the Prince William County Police Department; JOHN DOES 1-10,
individually and in their capacity as members of the Prince
William County Police Department,
Defendants – Appellees,
and
PRINCE WILLIAM COUNTY POLICE DEPARTMENT; GREG PASS,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:08-cv-00677-JCC-TCB)
Argued: January 28, 2011 Decided: April 29, 2011
Before DUNCAN and WYNN, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Duncan and Judge Berger joined.
ARGUED: John Gordon Humphrey, THE HUMPHREY LAW FIRM, Alexandria,
Virginia, for Appellant. Mary Alice Rowan, COUNTY ATTORNEY’S
OFFICE, Prince William, Virginia, for Appellees. ON BRIEF:
Angela L. Horan, County Attorney, Prince William, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
Plaintiff Robert Harrison brought this 42 U.S.C. § 1983
action against various Prince William County, Virginia police
officers, alleging that his constitutional rights were violated
when he was arrested for cursing at an officer. Harrison argues
that the Virginia statute under which he was arrested was
unconstitutional and therefore could not serve as the basis for
probable cause to arrest him. But that statute has never before
been declared unconstitutional, and it is not so grossly and
flagrantly unconstitutional that any person of reasonable
prudence would be bound to see its flaws. 1 We therefore reject
Harrison’s contention that it could not form the basis for
probable cause and affirm the judgment of the district court.
I.
On October 4, 2005 Harrison was returning home to his
apartment in Woodbridge, Virginia after work. Harrison was
riding in the front passenger seat of a car driven by his friend
Marquis Christopher. As Harrison and Christopher approached the
apartment complex, they observed a number of black vehicles
blocking the road. Christopher rolled down a window and asked a
woman leaning into the trunk of a car if they could pass.
1
Michigan v. DeFillippo, 443 U.S. 31, 38 (1979).
3
The woman, Officer Jennifer Evans, turned around and
displayed a police badge. Defendant Officer John Mora was
returning to his car when he saw Evans speaking with the men in
the car. Evans told Mora that the men had made sexually
inappropriate comments to her. Mora advised Harrison and
Christopher to leave and told them that it was inappropriate to
speak to a female officer that way. Mora testified that as
Harrison rolled up the window, Harrison looked back at Mora and
called him a bitch.
Christopher then pulled into the parking lot in front of
Harrison’s apartment. At this point, Mora believed he had
probable cause to cite Harrison for violating Virginia Code
§ 18.2-388. That statute provides that “[i]f any person
profanely curses or swears or is intoxicated in public . . . he
shall be deemed guilty of a Class 4 misdemeanor.” Va. Code.
Ann. § 18.2-388 (2009). Mora walked up to the passenger side of
the vehicle.
The accounts of what happened next are conflicting.
Harrison testified that he was snatched out of the car and
pushed up against the roof. Harrison asked what he was being
arrested for and was thrown to the ground by three officers.
Harrison testified that his head hit the pavement, and that Mora
ground his head into the pavement. Harrison said the officers
picked him up, handcuffed him, and sat him down on the curb.
4
Mora testified that he asked Harrison to step out of the
vehicle. Harrison eventually opened the car door and stood up.
Mora said he told Harrison to place his hands on the roof of the
car. When Harrison would not comply, Mora grabbed one of
Harrison’s arms and placed it behind his back. Harrison started
to struggle, and Mora took him to the ground. Another officer
helped get Harrison’s left arm from under him, and the officers
sat Harrison, handcuffed, on the curb.
After arresting Harrison, Mora signed a criminal complaint
and affidavit summarizing the incident and requesting charges
for violation of Virginia Code §§ 18.2-388 and 18.2-415. 2
Harrison was brought before a magistrate who examined Mora and
other officers. The magistrate signed a warrant for arrest
2
Virginia Code § 18.2-415 states that:
A person is guilty of disorderly conduct if, with the
intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he:
A. In any street, highway, public building, or while
in or on a public conveyance, or public place engages
in conduct having a direct tendency to cause acts of
violence by the person or persons at whom,
individually, such conduct is directed[.]
. . . .
However, the conduct prohibited under subdivision A, B
or C of this section shall not be deemed to include
the utterance or display of any words or to include
conduct otherwise made punishable under this title.
Va. Code Ann. § 18.2-415 (2009).
5
charging Harrison with violation of Virginia Code § 18.2-415.
The magistrate also signed a summons requiring Harrison to
answer charges under Virginia Code § 18.2-416. 3
On July 1, 2008, Harrison filed a complaint against the
Prince William County Police Department and various police
officers, including Mora, in their individual and official
capacities. Harrison sought injunctive and monetary relief
under 42 U.S.C. § 1983 for alleged violations of his
constitutional protections against illegal seizure, false
arrest, excessive force, denial of medical care, conspiracy to
violate civil rights, and violations of equal protection. The
complaint also sought relief for violations of state law
protections against assault and battery and intentional
infliction of emotional distress.
The case was tried before a jury on September 8, 2009. At
the close of the evidence, Harrison moved for judgment as a
matter of law on the claims against Mora related to illegal
3
Virginia Code § 18.2-416 provides that:
If any person shall, in the presence or hearing of
another, curse or abuse such other person, or use any
violent abusive language to such person concerning
himself or any of his relations, or otherwise use such
language, under circumstances reasonably calculated to
provoke a breach of the peace, he shall be guilty of a
Class 3 misdemeanor.
Va. Code Ann. § 18.2-416 (2009).
6
seizure, unlawful arrest, excessive force, and assault and
battery. The district court denied Harrison’s motion.
Harrison submitted proposed jury instructions on the issue
of unlawful seizure. These were included in the instructions
that the district court read to the jury. The district court
also separately instructed the jury using the language of the
Virginia statutes. Harrison objected to submitting the language
of the statutes, particularly Virginia Code § 18.2-388, to the
jury. During deliberations, the jury requested a copy of the
curse and abuse statute. Harrison again objected.
Nevertheless, the district court sent a copy of the statute to
the jury. The jury decided all claims in favor of the
Defendants, and Harrison appealed.
II.
Harrison first argues that the district court erred in
denying his motion for judgment as a matter of law. Harrison
argues that Virginia Code § 18.2-388 is facially invalid and
therefore Mora lacked probable cause to arrest him. Harrison
contends that he said only “a single curse word to a trained
police officer” and that arresting someone on that basis is
unconstitutional. Appellant’s Opening Brief at 8.
Judgment as a matter of law is appropriate when the
district court finds that a reasonable jury would not have a
7
legally sufficient evidentiary basis to find for the nonmoving
party. Fed. R. Civ. P. 50(a). “We review de novo the grant or
denial of a motion for judgment as a matter of law.” Anderson
v. Russell, 247 F.3d 125, 129 (4th Cir. 2001).
A.
The Fourth Amendment guarantees “[t]he right of the people
to be secure . . . against unreasonable searches and seizures.”
U.S. Const. amend IV. It permits officers to make an arrest,
however, when the officers have probable cause to believe that a
person has committed a crime in their presence. Virginia v.
Moore, 553 U.S. 164, 178 (2008). Virginia law is consistent
with federal law in this regard. The Supreme Court of Virginia
recognizes that “probable cause exists when the facts and
circumstances within the officer’s knowledge, and of which he
has reasonably trustworthy information, alone are sufficient to
warrant a person of reasonable caution to believe that an
offense has been or is being committed.” Taylor v.
Commonwealth,
222 Va. 816, 820,
284 S.E.2d 833, 836 (Va. 1981)
(citing Draper v. United States,
358 U.S. 307, 313 (1959)).
The First Amendment states that “Congress shall make no law
. . . abridging the freedom of speech.” U.S. Const. amend. I.
“[T]he First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.” City of
8
Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987). In Hill, the
Supreme Court invalidated a city ordinance that prohibited
speech that in any manner interrupted an officer in the
performance of his duties.
Id. at 462; see also Lewis v. City
of New Orleans,
415 U.S. 130, 134 (1974) (invalidating an
ordinance that criminalized cursing at an officer). The Supreme
Court has recognized, however, that states may constitutionally
prohibit fighting words, i.e., those which by their very
utterance tend to incite an immediate breach of the peace. See
Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942).
Harrison argues that the United States Constitution limits
the application of Virginia Code §§ 18.2-388 and 18.2-416 to
fighting words. Harrison recognizes, however, that no court has
limited the application of Virginia Code § 18.2-388 to words
that have a tendency to incite an immediate breach of the peace. 4
Harrison contends, nonetheless, that “the fact that a court has
not specifically commented on Va. Code § 18.2-388’s application
to speech has no bearing on . . . an officer’s duty to follow
clearly established constitutional law.” Appellant’s Opening
4
The Virginia Court of Appeals held unconstitutional a city
ordinance containing language that “parallels the language of
Code § 18.2-388.” Burgess v. City of Va. Beach, 9 Va. App. 163,
165,
385 S.E.2d 59, 60 (Va. App. 1989), overruled in part as
recognized by Marttila v. City of Lynchburg,
33 Va. App. 592,
600 n.5,
535 S.E.2d 693, 697 n.5 (Va. App. 2000). Burgess does
not, however, purport to invalidate Virginia Code § 18.2-388.
9
Brief at 25. Harrison concludes that he was entitled to a
judgment that he was arrested without probable cause.
We are directed to no Fourth Circuit precedent addressing
the issue of whether an allegedly unconstitutional statute can
form a basis for probable cause. Our research has revealed
none. 5 The Supreme Court has, however, addressed this very
issue. 6
B.
In Michigan v. DeFillippo, 443 U.S. 31 (1979), the Supreme
Court held that an officer had probable cause to arrest a
suspect for refusing to identify himself, notwithstanding that
the applicable ordinance was invalid and would be judicially
declared unconstitutional.
Id. at 37. The Court explained that
at the time of the arrest, “there was no controlling precedent
that this ordinance was or was not constitutional, and hence the
conduct observed violated a presumptively valid ordinance.”
Id.
A prudent officer, the Court said, “should not have been
5
The closest case appears to be United States v. Fayall,
315 F. App’x 448, 449-50 (4th Cir. 2009), an unpublished opinion
involving a city ordinance.
6
We note that neither party cited this case, which is
crucial to this appeal’s resolution.
10
required to anticipate that a court would later hold the
ordinance unconstitutional.” Id. at 38.
“Police are charged to enforce laws until and unless they
are declared unconstitutional.” Id. DeFillippo thus announced
that probable cause may exist even under an unconstitutional
statute, with one caveat. “The enactment of a law forecloses
speculation by enforcement officers concerning its
constitutionality-with the possible exception of a law so
grossly and flagrantly unconstitutional that any person of
reasonable prudence would be bound to see its flaws.”
Id. This
exception has been employed sparingly. See United States v.
Cardenas-Alatorre,
485 F.3d 1111, 1117 n.15 (10th Cir. 2007)
(“Only in the rarest of instances, as reflected in the standard
set forth in DeFillippo, is an officer expected to question the
will of the majority embodied in a duly, and democratically,
enacted law; . . . .”). As the Supreme Court explained,
“[s]ociety would be ill-served if its police officers took it
upon themselves to determine which laws are and which are not
constitutionally entitled to enforcement.”
DeFillippo 443 U.S.
at 38; see also Illinois v. Krull,
480 U.S. 340, 349-50 (1987)
(“Unless a statute is clearly unconstitutional, an officer
cannot be expected to question the judgment of the legislature
that passed the law.”).
11
The Sixth Circuit used the DeFillippo exception in Leonard
v. Robinson, 477 F.3d 347 (6th Cir. 2007). The plaintiff there
was arrested at a township board meeting for saying the phrase
“God damn” pursuant to state statutes prohibiting disorderly
conduct and obscenity.
Id. 352. The plaintiff sued the
arresting officer for violating his Fourth Amendment rights and
First Amendment retaliation.
Id. On appeal, the Sixth Circuit
held that the First Amendment “preclude[d] a finding of probable
cause because the laws cited . . . are either facially invalid,
vague, or overbroad when applied to speech (as opposed to
conduct) at a democratic assembly where the speaker is not out
of order.”
Id. at 356. The Court rejected an argument based on
DeFillippo, stating “no reasonable police officer would believe
that any of the . . . Michigan statutes . . . are constitutional
as applied to Leonard’s political speech during a democratic
assembly.”
Id. at 359. 7
The Sixth Circuit appears to be alone amongst the circuits
in recognizing any restrictions on speech that meet the
DeFillippo exception. In Vives v. City of New York, 405 F.3d
115 (2nd Cir. 2004), the Second Circuit held the defendants
could rely on the presumptive validity of a statute prohibiting
7
Notably, Judge Sutton dissented, believing that DeFillippo
compelled a contrary result. Leonard, 477 F.3d at 365.
12
aggravated harassment when they arrested the plaintiff for
sending religious literature to a candidate for lieutenant
governor. Id. at 118. In Cooper v. Dillon,
403 F.3d 1208 (11th
Cir. 2005), the Eleventh Circuit rejected the argument that a
statute making it illegal to publish information obtained
pursuant to an internal investigation of a law enforcement
officer was so grossly and flagrantly unconstitutional that the
arresting officer should have known it was unconstitutional.
Id. at 1220. And in Lederman v. United States,
291 F.3d 36
(D.C. Cir. 2002), the D.C. Circuit held that a regulation
banning leafleting on a public sidewalk was not so grossly and
flagrantly unconstitutional that officers should have recognized
its flaws.
Id. at 47. These cases establish that the possible
exception recognized in DeFillippo does not apply merely because
a person alleges a violation of his First Amendment rights.
C.
Under DeFillippo, Mora had probable cause to believe that
Harrison was breaking a presumptively valid law, unless the law
was “so grossly and flagrantly unconstitutional that any person
of reasonable prudence would be bound to see its flaws.”
DeFillippo, 443 U.S. at 38. Although not framed as such,
Harrison’s argument amounts to the claim that Virginia Code
§ 18.2-388 meets this exception. Harrison relies on Leonard for
13
the proposition that officers “can only apply a statute in
accordance with clearly established constitutional law
regardless of the text of the statute.” Appellant’s Opening
Brief at 47. “No one,” Harrison asserts, “could reasonably
believe that Va. Code § 18.2-388 should be applied as
written . . . .” Id. at 26.
Harrison’s reliance on Leonard is misplaced. The Sixth
Circuit there explained that in light of the “prominent position
that free political speech has in our jurisprudence and in our
society, it cannot be seriously contended that any reasonable
peace officer, or citizen, for that matter, would believe that
mild profanity while peacefully advocating a political position
could constitute a criminal act.” Leonard, 477 F.3d at 361.
Unlike the plaintiff in Leonard, Harrison was not arrested for
voicing a mild profanity while advocating a political position
at a democratic assembly. Mora’s decision to arrest Harrison
therefore cannot be similarly evaluated.
Moreover, Leonard does not support the proposition that
officers may disregard the text of a statute in preference for a
constitutional interpretation. On the contrary, courts have
consistently recognized that police officers may rely on the
presumptive validity of statutes. See, e.g., Cooper, 403 F.3d
at 1220 (noting that the officer “was entitled to assume that
the current [statute] was free of constitutional flaws.”);
14
Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 105 (2d
Cir. 2003) (“Officials charged with enforcing a statute on the
books . . . are generally entitled to rely on the presumption
that all relevant legal and constitutional issues have been
considered and that the statute is valid.”); Grossman v. City of
Portland,
33 F.3d 1200, 1209 (9th Cir. 1994) (“[P]olice officers
on the street are ordinarily entitled to rely on the assumption
that . . . the ordinance is a valid and constitutional exercise
of authority.”). Thus, Leonard does not support Harrison’s
claim that Mora’s reliance on a presumptively valid statute was
unreasonable.
Although Harrison makes a compelling argument that Virginia
Code § 18.2-388 is unconstitutional, he fails to show that it is
so grossly and flagrantly unconstitutional that Mora should have
anticipated its invalidation. We hold that Virginia Code §
18.2-388 does not satisfy the possible exception identified by
DeFillippo. 443 U.S. at 38. Mora therefore had probable cause
to believe that Harrison violated a presumptively valid state
law. 8
8
Because we hold that Mora could have had probable cause
under Virginia Code § 18.2-388, we need not determine whether he
also could have had probable cause under Virginia Code § 18.2-
415 or § 18.2-416.
15
D.
This determination disposes of all Harrison’s claims for
judgment as a matter of law. With regard to Harrison’s illegal
seizure claim, we have recognized that police may arrest an
offender even for a “very minor criminal offense” so long as the
seizure is supported by probable cause. Figg v. Schroeder, 312
F.3d 625, 636 (4th Cir. 2002). With regard to Harrison’s false
arrest claim, “there is no cause of action for ‘false arrest’
under section 1983 unless the arresting officer lacked probable
cause.” Street v. Surdyka,
492 F.2d 368, 372-73 (4th Cir.
1974).
Harrison concedes that “[i]f the Court finds probable cause
or reasonable suspicion existed, . . . his appeal regarding
excessive force fails.” Appellant’s Reply Brief at 25.
Finally, Harrison was not entitled to judgment as a matter of
law on his state law claims for assault and battery. See
DeChene v. Smallwood, 226 Va. 475, 481,
311 S.E.2d 749, 752 (Va.
1984) (officer could not be subjected to civil liability for
false imprisonment or assault and battery when the officer acted
in good faith and with probable cause). Thus, the district
court did not err in denying Harrison’s motion for judgment as a
matter of law.
16
III.
Harrison next argues that the district court erred in
failing to instruct the jury as to the constitutional
limitations on the application of state law.
We review jury instructions to determine whether they,
construed as a whole, properly informed the jury of the
controlling legal principles without misleading or confusing the
jury. Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775 (4th
Cir. 1997). “A judgment will be reversed for error in jury
instructions only if the error is determined to have been
prejudicial, based on a review of the record as a whole.”
Id.
(citation and quotation marks omitted).
Here, Harrison argues that the jury was misled because it
received instructions that permitted it to find probable cause
to arrest on the basis of Virginia Code § 18.2-388 alone, which
by its terms allows for an unconstitutional arrest. Harrison
recognizes that the district court submitted his proposed
instructions that reflected the statutes “as they had been
limited by court precedent.” Appellant’s Opening Brief at 61.
Harrison contends, however, that by submitting the statutes to
the jury separately, the district court “allowed the jury to
find against [him] on an unconstitutional basis.” Id.
Harrison points to no case finding error in a district
court’s submitting statutes to a jury. Insofar as Harrison
17
argues that the district court allowed the jury to find probable
cause to arrest under an unconstitutional statute, he has not—
for the reasons stated above—shown that the district court’s
instruction was erroneous. See DeFillippo, 443 U.S. at 37.
Indeed, the inclusion of Harrison’s proposed instructions,
potentially limiting the scope of probable cause, could only
have benefited him. Harrison consequently fails to show that
the district court erred in its instructions to the jury, which
adequately stated the controlling law. See Sturges v. Matthews,
53 F.3d 659, 662 (4th Cir. 1995) (refusing to reverse alleged
error in instructions when they “contained an adequate statement
of the law to guide the jury’s determination”).
IV.
In sum, we hold that Virginia Code § 18.2-388 is not “so
grossly and flagrantly unconstitutional that any person of
reasonable prudence would be bound to see its flaws.”
DeFillippo, 443 U.S. at 38. The statute could therefore provide
a basis for Officer Mora to have probable cause to believe that
Harrison was violating a presumptively valid state law.
Harrison was thus not entitled to judgment as a matter of law.
For the same reason, the district court did not err in failing
to instruct the jury on the constitutional limitations of the
18
application of state law. The judgment of the district court is
accordingly
AFFIRMED.
19
