Opinion
1:22CV906
02-28-2024
XAVIER ADAMS, et al., Plaintiffs, v. CITY OF GRAHAM, et al., Defendants.
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joi Elizabeth Peake United States Magistrate Judge
This civil rights action is before the Court on Defendant Jeffrey Ellis's Motion to Dismiss [Doc. #46]. In this case, Plaintiffs as a group allege that Defendant was one of several law enforcement officers who enforced a local ordinance that unconstitutionally restricted Plaintiffs' First Amendment right to protest, and Plaintiff Ruby Sinreich individually alleges that Defendant Ellis arrested her without probable cause in violation of the Fourth Amendment. Defendant Ellis seeks to dismiss all claims brought against him, in both his individual and official capacities, on the basis that (1) the Complaint fails to adequately allege that a First or Fourth Amendment violation occurred; (2) Defendant is entitled to qualified immunity even if such violation(s) occurred; and (3) the Complaint fails to allege a relevant municipal policy or custom that would render Defendant liable in his official capacity. For the reasons set out below, the Court recommends that Defendant Ellis's Motion to Dismiss be denied at this early stage in the case, without prejudice to further consideration of these issues on motions for summary judgment.
I. FACTUAL ALLEGATIONS AND CLAIMS
Plaintiffs' Complaint was filed on October 27, 2022, pursuant to 42 U.S.C. § 1983. Plaintiffs subsequently filed an Amended Complaint on April 7, 2023, and a Second Amended Complaint [Doc. #43] on June 5, 2023, which is the operative complaint in this case. Because this matter is before the Court on a motion to dismiss, the Court sets out here the facts as alleged by Plaintiffs in their Second Amended Complaint (hereinafter "Complaint" or "Compl.").
On November 14, 2019, all Plaintiffs attended a group demonstration in Graham, North Carolina organized by Never Again Action to protest agreements made between Immigration and Customs Enforcement and local law enforcement pertaining to cooperation in the detention and deportation of immigrants. (Compl. [Doc. #43] ¶¶ 7, 58, 85, 102, 118, 127.) The group, including Plaintiffs, planned to start the demonstration on the private property of the Center for Spiritual Living and then walk on public sidewalks to the city's jail and courthouse to continue protesting, before using public sidewalks to return to the Center for Spiritual Living. (Compl. ¶¶ 8-9, 59-61.)
As applicable to the facts as alleged in this case, the City of Graham had a local ordinance relating to such group protests. The Graham ordinance required a group of two or more people who gathered "for the purpose of protesting any matter or making known any position or thought of the group or of attracting attention thereto" to acquire a permit from the city's police department at least twenty-four hours in advance of a planned protest in order to be able to demonstrate on public sidewalks. (Compl. ¶¶ 2-3, 36-38, 41; Compl. Ex. A [Doc. #41-1] §§ 18-172, -175, -178.) The ordinance did not apply to groups who gathered publicly to discuss matters amongst themselves or to students "going to and from school classes or participating in educational activities" and was silent on its application to groups who gathered for purposes other than protesting or making known their positions or thoughts. (Compl. Ex. A §§ 18-173, -175.) Any group who protested without a permit would be in violation of the ordinance and an officer in charge would be authorized to direct such protestors to disperse. (Compl. Ex. A §18-176.)
This ordinance was in effect during the Plaintiffs' protest and eventual arrests, as described below. (Compl. ¶¶ 2, 56.) Neither Never Again Action nor any Plaintiff obtained a permit pursuant to the Graham ordinance prior to the November 19 protest. (Compl. ¶ 9.)
Prior to the protest, Defendant Terry S. Johnson, the Sheriff of Alamance County, convened a meeting with law enforcement officials from the Graham Police Department, the Alamance County Sheriffs Office, and the Haw River Police Department, and "formed a fixed operation plan of action" to enforce the Graham ordinance and prevent Plaintiffs and other protestors from utilizing the city's public sidewalks in their upcoming demonstration. (Compl. ¶¶ 10, 32, 34, 62-63, 154.) As part of this plan, Defendant Johnson directed individual law enforcement Defendants to establish physical barriers between the Center for Spiritual Living's private property from which the protest would originate and the adjacent public sidewalks, thus blocking protesters from accessing or utilizing public thoroughfares to reach their planned destination. (Compl. ¶¶ 10-12, 65-66.) Defendant Jeffrey Ellis, a police officer for the Haw River Police Department, was part of this operation.
When the protest began, these barriers did in fact prevent protesters from utilizing public sidewalks to go from the Center for Spiritual Living to the jail and courthouse. (Compl. ¶¶ 12, 66.) Shortly after the protestors began to walk toward the barriers, law enforcement officials on scene ordered them to disperse. (Compl. ¶ 67.) Plaintiffs and the other protestors attempted to reroute their march to avoid the barriers and thus access other public means of going to the courthouse but discovered that law enforcement officials had similarly formed physical lines of officers and vehicles to block any alternative public route leading from the Center for Spiritual Living to the jail and courthouse. (Compl. ¶¶ 69-75; Compl. Exs. B [Doc. #43-4], C [Doc. #43-5], I [Doc. #43-11]). The protestors-confined to their initial starting position, unable to walk as planned to the jail and courthouse, and being too numerous to all fit on the sidewalk within the confines as set out by the law enforcement barriers-moved into the street. (Compl. ¶¶ 73-77, 81-82.) No traffic was in the area because law enforcement officials had already blocked off the streets to prevent vehicles from accessing the area. (Compl. ¶ 75-76, 83.) According to the Complaint, the protesters intended to remain on the sidewalk, but were forced into the road by law enforcement officers. (Compl. ¶¶ 81-83.) The Complaint alleges that the protestors remained peaceful, did not act violence, did not engage in any conduct that created an imminent threat of violence, did not utter verbal threats, and did not use abusive language. (Compl. ¶¶ 79-80,146-149, 151-152.)
After about 20 minutes, law enforcement officers again ordered the protestors to disperse. (Compl. ¶ 78.) Law enforcement officers then began using sound cannons to attempt to disperse the protestors and physically pushed the protestors back onto the Center for Spiritual Living's private property and refused to allow them to access the public sidewalks. (Comp. ¶ 84.) During this process, Defendant Ellis pushed Plaintiff Ruby Sinreich in her torso toward the Center for Spiritual Living. (Compl.¶¶119-120.) Plaintiff Sinreich asked Defendant Ellis to remove his hands from her chest and Defendant Ellis then pulled her from the crowd and arrested her for failure to disperse pursuant to North Carolina General Statute § 14-288.5. (Compl. ¶¶ 121-123.) According to the Complaint, Plaintiff Sinreich had not engaged in any violent or threatening behavior, did not use verbal threats or abusive language, and did not resist Defendant Ellis or any other law enforcement officer. (Compl. ¶¶ 122, 124-125.)
The circumstances of the other Plaintiffs' arrests are detailed in paragraphs 85 to 117 and 127 to 136 of the Complaint. Because Defendant Ellis was not involved in those arrests (Compl. ¶¶ 85-117, 127-136), and the Fourth Amendment claims against him do not involve the facts of those arrests (Compl. ¶¶ 212-217), and Defendant Ellis's Motion to Dismiss is brought on his own behalf only, the arrests of the other Plaintiffs are not summarized here.
Based on the above allegations, Plaintiffs brought the instant action collectively alleging that the Defendants' enactment and/or enforcement of the Graham ordinance violated their First Amendment rights to assemble and protest, and individually alleging that the officer-Defendants who arrested them did so without probable cause in violation of the Fourth Amendment.
Plaintiffs allege in their complaint that the NAACP brought suit against the City of Graham in 2020 on the grounds that the Graham ordinance was, among other things, an unconstitutional content-based prior restraint. Plaintiffs note that the plaintiffs in that suit obtained a consented-to temporary restraining order on this basis before the City of Graham eventually repealed the ordinance. (Compl. ¶¶ 46, 51-54.)
The City of Graham, Sheriff Johnson, and the individual Defendants employed by the Graham Police Department and the Alamance County Sheriffs Office have answered the Complaint and those claims are ready to proceed to discovery. Only Defendant Jeffrey Ellis of the Haw River Police Department has filed a Motion to Dismiss.
II. LEGAL STANDARD
Defendant Ellis's Motion to Dismiss cites Rule 12(b)(1), Rule 12(b)(2) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, but Defendant Ellis does not raise any contentions regarding lack of subject matter jurisdiction under Rule 12(b)(1) or lack of personal jurisdiction under Rule 12(b)(2). Therefore, it appears that Defendant Ellis intends to raise a Motion to Dismiss only under Federal Rule of Civil Procedure 12(b)(6), contending that Plaintiffs have failed to state a claim upon which relief can be granted.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face/" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 500 U.S. 544, 570 (2007)). This standard does not require "detailed factual allegations," but it demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. A claim is facially plausible when the plaintiff provides enough factual content to enable the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. "The plausibility standard is not akin to a 'probability requirement/ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In this way, Rule 12(b)(6) protects against meritless litigation by requiring sufficient factual allegations "to raise a right to relief above the speculative level" so as to "nudge[] the[] claims across the line from conceivable to plausible." Twombly, 500 U.S. at 555, 570; see Iqbal, 556 U.S. at 680. The Court must accept as true all of the factual allegations contained in a complaint, but is not bound to accept legal conclusions. Iqbal, 556 U.S. at 678. Thus, "when there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief” Id. at 679.
III. DISCUSSION
In his Motion to Dismiss, Defendant Ellis first contends that Plaintiffs' claims against him should be dismissed because the Graham ordinance was constitutional and because he had probable cause to arrest Plaintiff Sinreich for failing to disperse after engaging in disorderly conduct. Defendant Ellis also contends that even if a constitutional violation is alleged, he is entitled to qualified immunity. Finally, he contends that he is not suable in his official capacity because the Complaint fails to sufficiently allege a policy of the City of Haw River or the Haw River Police Department in enforcing the City of Graham's ordinance. The Court deals with these arguments in turn.
A. The Alleged Unconstitutionality of the Graham Ordinance
At the outset, the Court notes that Defendant Ellis's Motion to Dismiss relies primarily on his contention that the ordinance at issue "places reasonable time, place, and manner restrictions" on the right to protest, and that because the ordinance was valid, Plaintiffs have failed to state any violation of the First and Fourteenth Amendments. (Def.'s Br. [Doc. #47] at 8.)
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." U.S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley. 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Content-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.Reed v. Town of Gilbert 576 U.S. 155, 163 (2015). Thus, if a law is "content based on its face or when the purpose and justification for the law are content based," strict scrutiny will apply. Id. at 166. To satisfy strict scrutiny, the government must show that the regulation furthered a compelling interest and was narrowly tailored to achieve that interest, such that there was no less restrictive alternative that would serve its purpose. In contrast, if a law is not content-based, intermediate scrutiny applies, and the "government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech/' that they do not "burden substantially more speech than is necessary to further the government's legitimate interests," and that they "leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism. 491 U.S. 781, 791, 799 (1989) (internal quotation omitted).
In the Motion to Dismiss, Defendant Ellis contends that the ordinance was content-neutral, and Defendant Ellis frames the First Amendment right at issue as being "the right to protest in violation of a municipal ordinance that places reasonable time, place, and manner restrictions." (Def.'s Br. at 8-10.) In support of this contention, Defendant cites to Thomas v. Chicago Park District 534 U.S. 316, 322-23 (2002), in which the Supreme Court upheld a municipal permit requirement as a "content-neutral time, place, and manner regulation of the use of a public forum." Plaintiff contends that under Thomas, a local permitting scheme may be valid as long as it does not "authorize a licensor to pass judgment on the content of the speech" before issuing a permit. (Def.'s Br. at 8-10.) Because, according to Defendant, the Graham ordinance did not authorize anyone issuing a permit in Graham to discriminate based on the content of what would be said at any protest, it was content-neutral.
However, the permit requirement in Thomas applied to groups of 50 or more in a park area, regardless of purpose, in order to coordinate multiple uses of limited space. Thomas. 534 U.S. at 322. Importantly, the permit requirement in Thomas applied equally to any group: "The picnicker and soccer player, no less than the political activist or parade marshal, must apply for a permit if the 50-person limit is to be exceeded." Id. In contrast, Plaintiffs here allege that the permit requirement was imposed on any group of only two or more persons gathering "for the purpose of protesting" (Compl. Ex. A §§ 18-172, -175 (emphasis added)), but not for those who gathered for or spoke for other purposes. These allegations represent a significantly different scheme than that at issue in Thomas.
The Supreme Court subsequently explained that:
Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.Reed. 576 U.S. at 163-64 (emphasis added) (internal citations omitted). In Reed, the Supreme Court held that an ordinance that set differing limits for signs based not on the ultimate content of the words on the sign but on the purpose of the sign, was content-based and therefore subject to strict scrutiny. Id.; accord Cent. Radio Co. v. City of Norfolk. 811 F.3d 625, 633 (4th Cir. 2016) (law was content-based because it applied or did not apply as a result of the topic discussed or the idea or message expressed); Cox v. City of Charleston, 416 F.3d 281,285 (4th Cir. 2005).
In this case the Complaint alleges that, in determining which groups required a permit and which did not, the ordinance explicitly discriminated between those who gathered in a public space "for the purpose of protesting any matter or making known any position or thought of the group or of attracting attention thereto" and those who gathered for some other purpose, or for no purpose at all. (Compl. ¶ 3; Compl. Ex. A §§ 18-172, -175.) It further discriminated against those who gathered to protest or make their position publicly known by exempting students involved in educational activities. (Compl. Ex. A § 18-173.) Finally, it also treated groups gathered for the purpose of protesting differently than others by further exempting similarly-sized groups who met publicly to discuss matters among themselves. (Compl. Ex. A § 18-175.) Thus, given that the Complaint alleges that the ordinance required a permit for those who gathered "for the purpose of protesting" (Compl. Ex. A §§ 18-172, -175 (emphasis added)), but not for those who gathered for or spoke for other purposes, it sufficiently alleges that the ordinance "regulated speech by its function or purpose' and thus drew distinctions "based on the message a speaker conveys." Reed, 576 U.S. at 163-64 (emphasis added).
Taking the allegations in the Complaint as true, and construing inferences in Plaintiffs favor as the Court is required to do at this stage in the case, Plaintiffs have alleged that the ordinance was not content-neutral. (Compl. ¶¶ 47, 161, 167-68, 227-28; Pl's Opp. Br. [Doc. #49] at 11-12.) Any further analysis of whether the ordinance was justified by a compelling interest and was narrowly tailored to achieve that interest, such that there was no less restrictive alternative that would serve its purpose, would be for further analysis at a later stage based on evidence beyond just the allegations of the Complaint. Indeed, even if the ordinance were content-neutral, the Court would still need to consider whether the ordinance would "burden substantially more speech than is necessary to further the government's legitimate interests/' and whether it would "leave open ample alternative channels for communication of the information." Ward. 491 U.S. at 791, 799 (internal quotation omitted). Defendant Ellis has not addressed those issues, which would likewise require further analysis based on evidence beyond just the allegations of the Complaint. See Hulbert v. Pope. 70 F.4th 726, 731 (4th Cir. 2023) (undertaking this analysis on a motion for summary judgment); see also Lucero v. Early. 873 F.3d 466, 469-71 (4th Cir. 2017) (reversing district court's grant of a motion to dismiss and remanding for farther proceedings on the factual dispute of what level of scrutiny to apply, including whether the disputed regulation was content neutral, both facially and by intent). On dispositive motions after discovery, the Court can consider whether the ordinance was content-neutral and whether it satisfied the applicable level of scrutiny, but these considerations are beyond the allegations of the Complaint and beyond the scope of this present Motion to Dismiss.
Therefore, to the extent that Plaintiffs Motion to Dismiss relies on his contention that the ordinance was “a reasonable time, place, and manner restriction," the Court at this stage in the case cannot find as a matter of law that the ordinance was a valid time, place, and manner restriction. Therefore, the Motion to Dismiss on this basis should be denied.
B. The Alleged Unconstitutional Seizure
Defendant next argues that the Complaint establishes as a matter of law that he had probable cause to arrest Plaintiff Sinreich. However, in support of his argument that he had probable cause to arrest Plaintiff Sinreich, Defendant asks the Court to make factual determinations at odds with what is pleaded in the Complaint in order to conclude that he had probable cause to believe that disorderly conduct was occurring or about to occur. (Def.'s Br. at 13-15.) The Complaint, taken as true, does not establish that Plaintiff Sinreich or any other protestor was engaged in disorderly conduct in violation of the statutes for which they were arrested.
Officers may have probable cause to arrest when "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (plaintiff] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964); accord McAfee v. Boczar. 738 F.3d 81, 87 (4th Cir. 2013), as amended (Jan. 23, 2014). According to the Complaint, Plaintiff Sinreich was arrested for failure to disperse pursuant to North Carolina General Statute § 14-288.5, despite, like all other protestors, remaining at all times peaceful and respectful and not engaging in any violent or threatening behavior. (Compl. ¶¶ 79-80, 122, 124-125, 146-149, 151-152).
North Carolina General Statute § 14-288.5 allows police officers to issue a command to disperse if they reasonably believe that a riot or disorderly conduct by an assemblage of three or more persons is occurring. N.C. Gen. Stat. § 14-288.5(a). Any person who fails to comply with such a command to disperse is guilty of a Class 2 misdemeanor. Id. § 14-288.5(b). As relevant here, disorderly conduct is further defined as "a public disturbance intentionally caused by any person who" either “[e]ngages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence" or “[m]akes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace." Id. § 14-288.4(a)(1)-(2). Thus, this statute only applies to a failure to disperse when, as relevant here, the officer "had reasonable ground to believe that disorderly conduct was occurring by an assemblage of three or more persons." State v. Thomas. 221 S.E.2d 749, 750 (N.C. Ct. App. 1976); see also Fuller v. Scott 328 F.Supp. 842, 852 (M.D. N.C. 1971) (“Where there is no violence, nor imminent threat of violence, and words do not fall within that small class which are intended to provoke retaliation from a reasonable man, the officer cannot act under this subsection to disperse or arrest merely because the group becomes noisy, or because its ideas and manner of protest alarm or disturb listeners or because a 'physically offensive5 condition is thereby deemed to exist.").
Defendant argues that because an unnamed officer gave orders to disperse in this case, Defendant Ellis may have reasonably believed that the officer had determined that disorderly conduct warranting such orders was occurring and Defendant Ellis was therefore justified in relying on that determination to arrest Plaintiff Sinreich for failure to disperse. (Def.'s Br. at 13.) The Complaint does not support this conclusion. The Complaint specifically alleges that the Plaintiffs and the other protesters were peaceful and objectively not engaged in any conduct-either individually or as a group-that would meet the definition of disorderly conduct under the relevant statute. (Compl. ¶¶ 15, 68, 144, 146-149.) Thus, whether Defendant Ellis observed activity that would be considered disorderly conduct or whether it was reasonable for him to assume, under the circumstances, that another officer had done so, are factual determinations precluded by the allegations of the Complaint. Based on the allegations of the Complaint, there was no basis for any officer to believe disorderly conduct was occurring, and therefore there was no basis to arrest Plaintiff Sinreich or others for failure to disperse under the statute which was the basis for their arrest. See State v. Thomas. 221 S.E.2d at 750.
To the extent Defendant farther argues he could have arrested Plaintiff Sinreich for an alternative basis that would have given him probable cause such as N.C. Gen. Stat. § 14-223 (Def.'s Br. at 14-15), the Complaint does not make these facts out and the Court will not consider them on a motion to dismiss. See Occupy Columbia v. Haley. 738 F.3d 107,123 (4th Cir. 2013) (rejecting proffered alternative bases for why probable cause could have arisen because, on a motion to dismiss, the facts as alleged in the complaint were what mattered). Defendant Ellis contends that Plaintiff Sinreich "refused to return to private property once asked" by law enforcement, but the allegations in the Complaint do not support this factual assertion, and the Complaint states that “[a]t no point in time did Ms. Sinreich resist Defendant Ellis or any other law enforcement officer." (Compl. ¶¶ 122.)
The Court also notes that Section 18-176 of the Graham ordinance allowed "the chief of police or such officer of the police force as may then be in charge" to direct those participating in a group demonstration in violation of the permitting ordinance to disperse. (Compl. Ex. A § 18-176.) It did not, at least on its face as described in the Complaint, provide any criminal penalties for failing to obtain a permit or for failing to disperse. However, even if it did, the Complaint alleges that the Plaintiffs were arrested not for violating the permitting ordinance directly, but for failure to disperse under N.C. Gen. Stat. § 14-288.5, which lists more narrow situations in which an officer may issue a command to disperse and effectuate an arrest, as described above. (Compl. ¶¶ 123, 143-45).
Thus, the Complaint's factual allegations, taken as true, sufficiently allege that Defendant Ellis arrested Plaintiff Sinreich for failure to disperse under N.C Gen. Stat. § 14-288.5 without probable cause. Therefore, Defendant's Motion to Dismiss on this basis should be denied.
C Qualified Immunity
Defendant Ellis further contends that he is entitled to qualified immunity as to the alleged constitutional violations. "[O]fficials performing discretionary functions [are provided] with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987); accord Ray v. Roane. 948 F.3d 222, 228 (4th Cir. 2020).
[Q]ualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful. For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.Hope v. Pelzer. 536 U.S. 730, 739 (2002) (internal citation and quotations omitted).
In the Motion to Dismiss, Defendant Ellis contends that qualified immunity should apply because he was entitled to rely on the ordinance, and was not required to determine if it was constitutional prior to enforcing it. Defendant addresses this argument further in his Reply Brief. However, to the extent Defendant raises contentions and new case law for the first time in the Reply Brief, Plaintiffs have not had the opportunity to respond, and the Court does not have the benefit of fulsome briefing. In addition, Defendant Ellis does not reconcile this argument with the separate contention, discussed further below, that any claim against him in his official capacity should be dismissed because there was no policy of the Haw River Police Department pursuant to which Defendant Ellis was acting. If, as he apparently contends, he was not acting pursuant to a policy or directive of the Haw River Police Department, and was instead apparently acting outside of his jurisdiction on his own authority, it is not clear that he could also claim reliance on another municipality's ordinance to protect his actions. Further, Defendant has not responded to Plaintiffs' discussion of the Fourth Circuit's decision in Occupy Columbia v. Haley. 738 F.3d 107 (4th Cir. 2013). In Occupy Columbia, the Fourth Circuit declined to automatically apply qualified immunity to officers acting pursuant to a regulation and Governor's Order, at least at the Motion to Dismiss stage. In that case, the Governor signed a letter directing law enforcement officers to “remov[e] any individual associated with the 'Occupy Columbia' group, as well as his or her belongings, who remains on Statehouse grounds after 6:00 p.m. without written authorization from the Budget and Control Board" based on a state regulation for "Conditions for Use of South Carolina State House Grounds." Occupy Columbia. 738 F.3d at 113,120. With respect to the qualified immunity analysis, the Fourth Circuit found that, as in the present case, the complaint alleged the absence of a valid time, place, and manner restriction, and it was "clearly established in Fourth Circuit and Supreme Court precedent that, in the absence of a valid time, place, and manner restriction, arresting members of Occupy Columbia for their presence and protest on State House grounds after 6:00 p.m. was a violation of their First Amendment rights." Id. at 124-25. The Fourth Circuit did not cite the reliance on the regulation or the Governor's Order as a basis for extending qualified immunity to the arresting officers.
Ultimately, the Court need not resolve these issues here, or order further briefing to the extent they have not been fully addressed, because even if the Court accepts Defendant Ellis's contention that he was entitled to rely on the ordinance, and was not required to determine if it was constitutional, the claims against Defendant Ellis extend beyond the ordinance itself. As noted above, Plaintiffs here claim that Defendant Ellis put his hands on Plaintiff Sinreich's chest to push her back, and then arrested her without probable cause under state law, as set out above. See Ray. 948 F.3d at 228 ("The question of whether a right is clearly established is a question of law for the court to decide. The question of whether a reasonable officer would have known that the conduct at issue violated that right, however, cannot be decided prior to trial if disputes of the facts exist." (internal citation omitted)); Smith v. Reddy, 101 F.3d 351, 356 (4th Cir. 1996) ('"Because the Fourth Amendment right to be arrested only on probable cause is clearly established, the question that remains is whether a reasonable person in Reddy's position would have thought her actions violated that right.”).
According to the Complaint, Plaintiff Sinreich was arrested for failure to disperse pursuant to North Carolina General Statute § 14-288.5, despite, like all other protestors, remaining at all times peaceful and respectful and not engaging in any violent or threatening behavior and not engaging in any conduct that would meet the definition of disorderly conduct under that statute. To the extent that Defendant Ellis contends that he may have reasonably believed that a riot or disorderly conduct was occurring, this contention relies on assertions and inferences contrary to the allegations in the Complaint. Similarly, to the extent Defendant Ellis now cites to N.C. Gen. Stat. § 14-233 to argue that he would have had probable cause to arrest Plaintiff for resisting an officer, the allegations in the Complaint assert that Plaintiff did not resist, and that she and other protesters were blocked into a limited space by barriers and lines of officers. Therefore, at least at this stage, the question of qualified immunity will turn on the factual disputes regarding Plaintiff Sinreich's arrest. Those issues can be addressed on dispositive motions prior to trial, but cannot be resolved on a Motion to Dismiss in light of the allegations in the Complaint.
Similarly, to the extent there may be additional issues that have not been fully briefed regarding Defendant Ellis's reliance on the Graham ordinance, as discussed above, those issues can be addressed further on motions for summary judgment.
D. The City of Haw River's Policy or Custom of Enforcing the Graham Ordinance
Finally, in addition to contesting whether Plaintiffs have stated a claim against him in his individual capacity, Defendant Ellis also asserts that the Complaint fails to allege a proper claim against him in his official capacity.
To the extent Plaintiffs assert claims against Defendant Ellis in his official capacity as an officer of the Haw River Police Department, the City of Haw River is effectively a party based on its officer's alleged actions. However, a municipality may only be held liable under § 1983 based on the actions of its officers "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
[A] policy or custom for which a municipality may be held liable can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that manifests deliberate indifference to the rights of citizens; or (4) through a practice that is so persistent and widespread as to constitute a custom or usage with the force of law.Starbuck v. Williamsburg James City Cnty. Sch. Bd.. 28 F.4th 529, 533 (4th Or. 2022) (internal brackets and quotations omitted). Such a claim only exists if, "through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a causal link between the municipal action and the deprivation of federal rights." Bd. of the Cnty. Commas v. Brown. 520 U.S. 397, 404 (1997): accord Riddick v. Sch. Bd.. 238 F.3d 518, 524 (4th Cir. 2000). Defendant Ellis contends that the Complaint fails to identify a policy or custom of the Haw River Police Department that would support the official capacity claim.
In laying out the specifics of their claims, Plaintiffs allege that the City of Haw River had "a policy and practice" of enforcing the Graham ordinance and that "the Haw River Police Department [was] involved in [the] enforcement of the Graham Ordinance." (Compl. ¶¶ 6, 55.) Most importantly, the Complaint alleges that the Haw River Police Department agreed to join in a plan allegedly created by Defendant Johnson during a meeting prior to the protest, and the Complaint specifically alleges that the Haw River Police Department was part of this group that "formed a fixed operation plan of action to enforce the Graham Ordinance." (Compl. ¶¶ 10, 62, 65.) See Bruce & Tanya & Assocs. v. Bd. of Supervisors. 854 Fed.Appx. 521, 529-31 (4th Cir. 2021).
Based on the allegations in the Complaint, the Haw River Police Department made a deliberate decision to participate in the enforcement of the ordinance, and formed a fixed operation plan of action, which then led to the constitutional violations alleged in the Complaint. Indeed, as discussed above, in the absence of such a determination, Defendant Ellis was acting on his own authority outside his jurisdiction, which is inconsistent with his contentions regarding the claims against him in his individual capacity. Whether Plaintiffs will be able to present evidence to support these contentions is another matter, but at this stage the Court cannot resolve the factual disputes. Therefore, the Motion to Dismiss the claim against Defendant Ellis in his official capacity should be denied at this time.
IV. CONCLUSION
IT IS THEREFORE RECOMMENDED that Defendant Ellis's Motion to Dismiss [Doc. #46] be DENIED, without prejudice to further consideration of these issues on dispositive motions after discovery.