Swagler v. Sheridan

• Decision Date: 12 July 2011
• Docket Number: Civil Action No. RDB–08–2289.
• Citation: 837 F.Supp.2d 509
• Parties: Angela SWAGLER, et al., Plaintiffs, v. Colonel Terrence SHERIDAN, et al., Defendants.
• Court: U.S. District Court — District of Maryland

837 F.Supp.2d 509

Angela SWAGLER, et al., Plaintiffs,

v.Colonel Terrence SHERIDAN, et al., Defendants.

Civil Action No. RDB–08–2289.

United States District Court, D. Maryland.

July 12, 2011.

Daniel Lewis Cox, The Cox Law Center LLC, Frederick, MD, Benjamin W. Bull, Alliance Defense Fund, Scottsdale, AZ, Dale Schowengerdt, Daniel Blomberg, Kevin Theriot, Alliance Defense Fund, Leawood, KS, David Austin R. Nimocks, Joel Oster, Alliance Defense Fund, Washington, DC, Christopher A. Ferrara, American Catholic Lawyers Assoc. Inc., Fairfield, NJ, Denis V. Brenan, Newtown Square, PA, Howard J. Walsh, III, Law Office of Howard J. Walsh III Esq., Rockville, MD, Matt M. Paavola, Workers Comp Law Firm, LLC, Middle River, MD, Thomas Brejcha, Thomas More Society, Chicago, IL, for Plaintiffs.

John F. Breads, Jr., Law Office of John F. Breads Jr., Hanover, MD, Joshua Neal Auerbach, Office of the Attorney General, Baltimore, MD, Phillip Michael Pickus, Maryland Department of State Police, Pikesville, MD, for Defendants.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

On September 3, 2008, Plaintiffs Angela Swagler and Elizabeth Walsh (the “SwaglerPlaintiffs”) filed the present action asserting numerous constitutional and common law claims relating to a dispersal order, and subsequent arrest, search, and detainment that occurred after the Plaintiffs participated in a pro life demonstration on August 1, 2008, in Harford County Maryland. The named Defendants in that case include Terrence Sheridan, Charles Neighoff, Dona Bohlen, Walter Rasinski, and Christopher Bradley, all current or former employees of the Maryland State Police. A companion case, filed on July 23, 2009, by fellow demonstrators Jack Ames, Laura Beeson, Nathan Cain, Patrick Mooney, Albert Stecklein III, Timothy Sullivan, Jessica Ward, and Defend Life, Inc., (the “Ames Plaintiffs”) asserts similar claims against the same defendants, with the addition of Charles Mohr, Ernest Meads, and Mitchell Nuzzo (collectively, “Defendants”). By Order of February 4, 2010, this Court consolidated the two cases pursuant to Federal Rule of Civil Procedure 42. See Feb. 4, 2010 Order, ECF No. 140.¹

On June 16, 2011, this Court heard oral argument on the Defendants' Motion for Summary Judgment, the Swagler Plaintiffs' Cross–Motion for Summary Judgment, the Ames Plaintiffs' Cross–Motion for Summary Judgment, the Swagler Plaintiffs Motion for Summary Judgment against only Defendant Bohlen, and the Ames Plaintiffs Motion for Summary Judgment against Defendant Bohlen. For the reasons set forth below, the Defendants' Motion for Summary Judgment (ECF No. 190) is granted in part and denied in part, the Swagler Plaintiffs' Cross–Motion for Summary Judgment (ECF No. 193) is granted, the Ames Plaintiffs' Cross–Motion for Summary Judgment (ECF No. 198) is granted in part and denied in part, the Swagler Plaintiffs' Motion for Summary Judgment against Defendant Bohlen (ECF No. 195) is granted in part and denied in part, and the Ames Plaintiffs' Motion for Summary Judgment against Defendant Bohlen (ECF NO. 199) is similarly granted in part and denied in part.

BACKGROUND AND PROCEDURAL HISTORY

On June 29, 2009, this Court issued a Memorandum Opinion and Order granting in part and denying in part several dispositive motions submitted by the originally named defendants against the Swagler Plaintiffs. See Swagler v. Harford County, No. 08–2289, 2009 WL 1575326 (D.Md. June 29, 2009), ECF No. 86. ² At that stage in the litigation, the Defendants moved to dismiss, or, in the alternative, for summary judgment, as to all federal claims asserted against them in their individual capacities under the doctrine of qualified immunity. This Court determined that the Defendants' request for qualified immunity was “premature ... due to the undeveloped nature of the record” and that the Plaintiffs “deserve[d] an opportunity to conduct a thorough discovery.” Id. at 12. The Defendants brought an interlocutory appeal from this Court's denial of qualified immunity. The United States Court of Appeals for the Fourth Circuit affirmed this Court's denial of qualified immunity as premature with regard to Plaintiffs' First and Fourth Amendment claims, but reversed in part, concluding that the Plaintiffs' constitutional due process claims failed as a matter of law. See Swagler v. Neighoff, 398 Fed.Appx. 872, 878 (4th Cir.2010) (unpublished). In addition, this Court has issued numerous other opinions in this case touching on discrete issues, but all involving the same underlying facts. See, e.g., ECF Nos. 114, 117, 150, 155, and 164. Discovery has now concluded, and the Defendants have renewed their motion for summary judgment, largely on qualified immunity grounds. Both the Swagler Plaintiffs and the Ames Plaintiffs have cross-moved for summary judgment on their First and Fourth Amendment claims.

As a result, the factual background of this case has been fully developed and it will not be completely reiterated here. Instead, this Court will briefly summarize only the facts necessary to decide the presently pending cross-motions for summary judgment.

The Consolidated Plaintiffs were participants and organizers of the 2008 Face the Truth Tour (the “Tour”), a week-long demonstration event sponsored by Defend Life, Inc., a non-profit pro-life advocacy group. The Tour's purpose was to communicate “the reality of what abortion is.” Walsh Dep. 58, ECF No. 193–2. As part of their demonstration, Tour members stood along Maryland roads holding signs depicting their version of the “reality” of abortion. Specifically, Tour members held large signs depicting healthy babies and contrasted those signs with others depicting the results of abortions. The Tour members also held signs containing an image of Jesus Christ with the words “Jesus Forgives and Heals.” See Swagler Plaintiffs Mot. Summ. J. Exs. 4(a)-(d), ECF Nos. 193–5–8. The signs depicting the results of abortion contained a graphic image of an aborted fetus known throughout the pro-life movement as “Baby Malachi.” See Swagler, 398 Fed.Appx. at 875 n. 1 (citations omitted).

On August 1, 2008, the final day of the Tour, the Consolidated Plaintiffs and other Tour participants staged a pro-life protest on a grassy shoulder along Route 24, near the intersection of Routes 24 and 924 in Harford County, Maryland. That particular location was chosen by the Tour because it received steady traffic flow, and was similar to locations where the Tour had previously staged successful demonstrations. See Ames Dep. 9, 68, ECF No. 193–4; Walsh Dep. 41. In fact, as evidenced by the testimony of various Maryland State Police (“MSP”) and Harford County Sheriff's Office employees, including some of the defendants in this case, that general location on Route 24 is a popular destination for varying types of demonstrators, political groups, and commercial advertisers to express their respective messages-and people wielding signs near Route 24 have been observed hundreds of times. See, e.g., Mina Dep. 34–38, ECF No. 193–9; Bradley Dep. 135–36, ECF No. 193–10; Meades Dep. 37–38, ECF No. 193–11. The Defendants in this case, and other Maryland law enforcement officers all testified that, other than the Consolidated Plaintiffs in this case and other Tour members who participated in the August 1, 2008 demonstration, no persons or groups of persons had ever been arrested or ordered to disperse as a result of their expressive activities along Route 24. See Meades Dep. 20; Mina Dep. 36–38; Dupre Dep. 11–12, ECF No. 193–14; Ravadge Dep. 10–12, 15–16, 18, ECF No. 193–15. Moreover, the Face the Truth Tour, including many of the same demonstrators, had previously held the same or similar signs along Route 24 in the seven years leading up to 2008. Ames Dep. 9, 68, 73–74; Walsh Dep. 55. In fact, the Maryland State Police were aware of the Tour's previous demonstrations, and in some cases, conducted surveillance on the group, and observed the actual demonstrations. See, e.g., Ames Dep. 68–69 (during the 2007 Tour, demonstrators observed MSP Troopers monitoring the demonstration from a parked police cruiser); MSP Surveillance Docs., ECF No. 193–51 (At least in 2005 and 2007, the MSP conducted and documented threat assessments regarding the Face the Truth Tours, ultimately concluding that the group did not pose a high security threat, and the Tour's activities were protected by the First Amendment to the United States Constitution.).

Regardless of the Tour's successful demonstrations in prior years, on August 1, 2008, shortly after the Tour began their demonstration, motorists driving on Route 24 began making calls to the MSP Barrack in Harford County Maryland. The United States Court of Appeals for the Fourth Circuit characterized the calls as follows: “The content of the recorded[ ³] calls reflect that the callers expressed two sentiments: (1) disapproval of the public display of images of dismembered fetuses and (2) concern about the impact of the images on their own ability and that of others to drive safely.” Swagler, 398 Fed.Appx. at 875. Perhaps unsurprisingly, the parties emphasize different aspects of the calls—the Plaintiffs emphasize the complaints regarding the content of the Tour's signs, see, e.g., Swagler Pls.' Mot. Summ. J. 6, and the Defendants emphasize the calls that complain or make reference to the signs' effect on traffic, see, e.g., Defs.' Mot. Summ. J. at 4–5.. While some of the recorded calls reference traffic concerns, it is clear that the overwhelming sentiment of the callers relates to their offense or disapproval of the content of the Tour's signs depicting aborted fetuses. ⁴

It was these calls that prompted the Maryland State Police into action. See, e.g., Neighoff Dep. 333–34; Bohlen Dep. 109–110. Sergeant Bohlen, the MSP duty officer, dispatched Troopers Neighoff, Bradley, and Rasinski in order to “confirm that [the Tour] have a permit to be there,” and explained that ...