Duhe v. City of Little Rock

• Decision Date: 05 September 2018
• Docket Number: No. 17-2012,17-2012
• Parties: Ronald DUHE, et al. Plaintiffs - Appellants v. CITY OF LITTLE ROCK, Arkansas, et al. Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

902 F.3d 858

Ronald DUHE, et al. Plaintiffs - Appellants

v.CITY OF LITTLE ROCK, Arkansas, et al. Defendants - Appellees

No. 17-2012

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2018

Filed: September 5, 2018

Jack Daniel Edwards, Etna, Nicolle H. Martin, Martin Law Office, Denver, Rebecca R. Messall, Messall Law Firm, Englewood, Stephanie DeClerk Nichols, Nichols Law Office, Jonesboro, for Plaintiff–Appellant.

Thomas Milton Carpenter, William Clark Mann, III, City Attorney's Office, Little Rock, for Defendant–Appellee Little Rock Arkansas, City of, an Arkansas municipal corporation.

Margaret Diane Depper, Fuqua & Campbell, Little Rock, for Defendant–Appellee Pulaski County, an Arkansas political subdivision.

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Ronald Duhe and Mark Holick were arrested for disorderly conduct during an anti-abortion demonstration at the Little Rock Family Planning Services Clinic ("the Clinic") in Little Rock, Arkansas. Little Rock police took Duhe and Holick to the Pulaski County Regional Detention Facility ("the Jail"), where they were processed and released the same day. After a bench trial in state court, the disorderly conduct charges were dismissed. Duhe, Holick, and Spirit One Christian Ministries, Inc. ("Spirit One"), a nonprofit corporation founded by Holick as a church in 1991, brought this § 1983 suit against the City of Little Rock, Little Rock Police Lieutenant Sidney Allen, and Pulaski County. Plaintiffs allege that the arrests were without probable cause and violated the First Amendment; the Arkansas disorderly conduct statute, Ark. Code Ann. § 5-71-207(a), and a Little Rock permit ordinance, Little Rock Rev. Code § 32-551, are unconstitutional on their face and as applied; and the County unconstitutionally detained Duhe and Holick at the Jail. The district court¹ granted summary judgment dismissing all claims on the merits and granting Allen qualified immunity from individual-capacity damage claims. Plaintiffs appeal. Reviewing the grant of summary judgment de novo , we affirm.

I. Fourth Amendment Arrest Claims.

Qualified immunity shields government agents from personal liability for civil damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "The entitlement is an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original). Accordingly, it is appropriate to begin with the one claim in which plaintiffs seek damages from a government agent acting in his individual capacity, the claim that Lt. Allen violated Duhe and Holick's First and Fourth Amendment rights when he arrested them at the Clinic for violating the Arkansas disorderly conduct statute.

Duhe and Holick assert that Allen violated their Fourth Amendment rights because he lacked probable cause to arrest. "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). "[A]n officer is entitled to qualified immunity if there is at least arguable probable cause" to arrest. Gilmore v. City of Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016) (quotation omitted).

In reviewing the grant of summary judgment, we view the facts in the light most favorable to Duhe and Holick, the non-moving parties. In September 2012, Holick organized a multi-day outreach in Little Rock, which involved demonstrations against abortion in front of a Little Rock high school and the Clinic. In anticipation, the Little Rock Police Department implemented an Operational Order that placed Lt. Allen in charge of a Special Response Unit to monitor the demonstrations.

On the first day, September 13, Holick and a group demonstrated at the high school and in front of the Clinic without incident. Early in the morning of September 14, a small number of demonstrators met in front of the Clinic. Duhe, arriving in Little Rock several hours earlier, joined the group. During the demonstration, both Duhe and Holick spoke through a microphone with an amplifier. Lt. Allen testified that he arrived at the Clinic after receiving a radio call from Special Response Unit member Ronald Morgan. According to Allen, Morgan advised that police on the scene received complaints about noise and that demonstrators were obstructing traffic at the Clinic.

One of the complainants was Gayle Teague, an employee of a vision center located near the Clinic. Teague testified that she could hear the demonstration in her clinic and told officers the noise was disrupting her business. She noted that protests were common in front of the Clinic, but this was the only time she could recall hearing sound from a demonstration in her office. Lori Williams, the Clinic's Clinical Director, complained to officers the sound was too loud for the Clinic to function. She testified that she could hear sound from the demonstration in a private counseling room while she was attempting to speak with a patient. She said that some patients canceled appointments in response to the demonstration, and that she saw demonstrators blocking the Clinic's driveway.

Allen averred that as he approached the site of the protest, he could hear someone speaking on an amplifier from about a city block away. On the scene, an officer told Allen that Holick had been blocking the driveway. Allen saw Duhe and Holick speaking through the amplifier and saw Holick walking slowly across the driveway, stopping vehicles. Allen testified that he directed officers to arrest Duhe and Holick for disorderly conduct for their use of the microphone and for Holick's obstruction of traffic.

"Probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that the arrestee has committed or was committing a crime." Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). Probable cause is a "fluid concept." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "The arresting officer himself need not possess all of the available information"; probable cause is assessed by the collective knowledge of the relevant officers and available objective facts. United States v. Stratton, 453 F.2d 36, 37 (8th Cir.), cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800 (1972). Whether probable cause existed at the time of the arrest is a question of law for the court. Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010).

As relevant here, the Arkansas disorderly conduct statute provides:

(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she:

* * * * *

(2) Makes unreasonable or excessive noise ... [or]

(5) Obstructs vehicular or pedestrian traffic ....

Ark. Code Ann. § 5-71-207(a)(2), (5). The Code provides that a person acts purposely "when it is the person's conscious object to engage in conduct of that nature or to cause the result." § 5-2-202(1). A person acts recklessly "when [he] consciously disregards a substantial and unjustifiable risk that ... [a] result will occur," when disregarding the risk "constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." § 5-2-202(3).

We agree with the district court that Lt. Allen had probable cause to arrest Duhe and Holick for violating the Arkansas disorderly conduct statute. He personally heard the amplified noise from a considerable distance and witnessed Holick obstructing traffic entering the Clinic's driveway. He was entitled to rely on the statements of Teague and Williams to other officers that the noise was disrupting their business activities and demonstrators were obstructing traffic. That Duhe and Holick's disorderly conduct charges were subsequently dismissed is irrelevant to the probable cause inquiry. Joseph v. Allen, 712 F.3d 1222, 1226 (8th Cir. 2013).

Duhe and Holick argue that Allen lacked probable cause because he did not conduct a reasonably thorough investigation before ordering the arrest, and he did not take a decibel reading or check the sound volume inside the Clinic or the vision center. They argue investigation would have revealed that demonstrators at the scene did not believe traffic was obstructed, the noise was excessive, or that Duhe and Holick intended to create public inconvenience, annoyance, or alarm. Absent exigent circumstances, officers "have a duty to conduct a reasonably thorough investigation prior to arresting a suspect." Kuehl, 173 F.3d at 650. But they need not conduct a "mini-trial" prior to making an arrest. Gibson v. Cook, 764 F.3d 810, 814 (8th Cir. 2014). We conclude Allen conducted a reasonable investigation. He did not disregard "plainly exculpatory evidence," and given what he personally observed and was told, "minimal further investigation" such as interviewing Duhe and Holick's fellow protesters would not have exonerated them. Kuehl, 173 F.3d at 650-51.

Lt. Allen did not violate the Fourth Amendment because he had probable cause to arrest Duhe and Holick for violating the disorderly conduct statute in his presence. This conclusion forecloses plaintiffs' Fourth Amendment claims of municipal or supervisor liability against the City of Little Rock. See Brossart v. Janke, 859 F.3d 616, 627-28 (8th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 2025, 201 L.Ed.2d 278 (2018).² In addition, Lt. Allen is clearly entitled to qualified immunity. As the Supreme...