Eric Thurairajah v. Bill Hollenbeck , 925 F.3d 979 ( 2019 )


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  •                    United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-3419
    ___________________________
    Eric Roshaun Thurairajah
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    City of Fort Smith, Arkansas; Sebastian County, Arkansas; State of Arkansas; Bill
    Hollenbeck, individually and in his official capacity as Sheriff for the County of Sebastian
    lllllllllllllllllllllDefendants
    Trooper Lagarian Cross, individually and in his Official Capacity as a State
    Trooper with and for the State of Arkansas, also known as L. Cross
    lllllllllllllllllllllDefendant - Appellant
    John Does 1-5, individually and in their official capacity in their roles as an
    employee of the City of Fort Smith, The State of Arkansas, The Arkansas State
    Police and/or Employee of Sebastian County
    lllllllllllllllllllllDefendant
    ____________
    Appeal from United States District Court
    for the Western District of Arkansas - Ft. Smith
    ____________
    Submitted: December 12, 2018
    Filed: June 3, 2019
    ____________
    Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
    ____________
    SMITH, Chief Judge.
    Arkansas State Trooper Lagarian Cross appeals the district court’s1 denial of
    qualified immunity on summary judgment against Eric Roshaun Thurairajah’s claims
    of First Amendment retaliation and Fourth Amendment unreasonable seizure. This
    § 1983 lawsuit suit stems from Trooper Cross’s arrest of Thurairajah for disorderly
    conduct after Thurairajah yelled a two-word expletive at him from a moving vehicle.
    Trooper Cross believed the shout constituted unreasonable or excessive noise in
    violation of state law. The district court determined that Trooper Cross’s action
    violated Thurairajah’s clearly established constitutional rights. We agree with that
    analysis and affirm the denial of qualified immunity.
    I. Background
    In 2015, Trooper Cross was performing a routine traffic stop on a van pulled
    to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet
    away, Trooper Cross heard Thurairajah, who was driving by, yell “f**k you!” out of
    his car window. The van’s occupants were a mother and her two young children.
    Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving
    in the opposite direction. Trooper Cross observed the two children in the van react
    to the yell. Trooper Cross ended the traffic stop of the van and pursued Thurairajah,
    stopped him, and arrested him, citing Arkansas’s disorderly conduct law. Trooper
    Cross believed the shout constituted “unreasonable or excessive noise” under the law.
    Ark. Code Ann. § 5-71-207(a)(2).2
    1
    The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
    the Western District of Arkansas.
    2
    Cross argues in his briefing that he believed the disorderly conduct statute
    could have also been violated on account of the obscene nature of the language. Ark.
    Code Ann. § 5-71-207(a)(3). At oral argument, however, he waived all reliance on
    this statutory section.
    -2-
    Thurairajah spent several hours in jail but then was released and all charges
    against him were dropped. He filed a § 1983 lawsuit against Trooper Cross alleging
    the trooper violated his First Amendment right to be free from retaliation and his
    Fourth Amendment right to be free from unreasonable seizure. Trooper Cross moved
    for summary judgment on the basis of qualified immunity. The district court denied
    qualified immunity on both claims after concluding Trooper Cross’s arrest violated
    Thurairajah’s clearly established constitutional rights.
    II. Discussion
    On appeal, Trooper Cross asks us to reverse the district court’s denial of
    qualified immunity. Qualified immunity will shield a state actor, like Trooper Cross,
    from legal liability unless: (1) he violated a constitutional right, and (2) that
    constitutional right was clearly established so that a reasonable officer would know
    of the right at the time of the alleged violation. See Pearson v. Callahan, 
    555 U.S. 223
    , 232 (2009).
    We review the denial of qualified immunity de novo, viewing the record in the
    light most favorable to Thurairajah and drawing all inferences in his favor. Ehlers v.
    City of Rapid City, 
    846 F.3d 1002
    , 1008 (8th Cir. 2017). If we find that either prong
    is not satisfied—that Thurairajah’s constitutional rights were not violated or that any
    violated right was not so clearly established that Trooper Cross, as a reasonable
    officer, would have known that his actions were unlawful—then qualified immunity
    will apply. See Perry v. Woodruff Cty. Sheriff Dept. by and through Barker, 
    858 F.3d 1141
    , 1144–45 (8th Cir. 2017).
    A. Fourth Amendment
    Trooper Cross contends that he is entitled to qualified immunity on
    Thurairajah’s Fourth Amendment claim for unreasonable seizure because (1) he had
    probable cause, or at least arguable probable cause, to arrest Thurairajah for violating
    Arkansas’s disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(2); or (2) the
    -3-
    relevant law pertaining to the disorderly conduct statute is not sufficiently clear to
    provide notice that an arrest would violate the Fourth Amendment.
    “A warrantless arrest is consistent with the Fourth Amendment if it is
    supported by probable cause, and an officer is entitled to qualified immunity if there
    is at least ‘arguable probable cause.’” Borgman v. Kedley, 
    646 F.3d 518
    , 522–23 (8th
    Cir. 2011) (quoting Walker v. City of Pine Bluff, 
    414 F.3d 989
    , 992 (8th Cir. 2005)).
    An officer possesses probable cause to effectuate a warrantless arrest “when the
    totality of the circumstances at the time of the arrest ‘are sufficient to lead a
    reasonable person to believe that the defendant has committed or is committing an
    offense.’” 
    Id. at 523
    (quoting Fisher v. Wal-Mart Stores, Inc. et al., 
    619 F.3d 811
    , 816
    (8th Cir. 2010)). Arguable probable cause exists if Thurairajah’s arrest “was based
    on an objectively reasonable—even if mistaken—belief that the arrest was based in
    probable cause.” Ulrich v. Pope Cty., 
    715 F.3d 1054
    , 1059 (8th Cir. 2013). Arguable
    probable cause provides law enforcement officers in a qualified immunity analysis
    “an even wider berth for mistaken judgments” than the probable cause standard
    affords a reasonable person. 
    Id. Analyzing whether
    arguable probable cause exists
    “necessarily includes consideration of probable cause.” 
    Id. In other
    words, Trooper
    Cross is protected by qualified immunity if a reasonable officer in his shoes would
    have reasonably believed, even if mistaken, based on objective facts, that Thurairajah
    was violating the disorderly conduct statute’s excessive noise prohibition by shouting
    the two-word insult from a moving vehicle with an unamplified human voice.
    The disorderly conduct statute reads: “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 makes unreasonable or excessive noise.” Ark. Code Ann. § 5-71-207(a)(2).
    Under the statute, the verbal content of Thurairajah’s yell is irrelevant. See 
    id. The statute
    does not penalize offensive speech, only unreasonable or excessive noise. 
    Id. Arkansas courts
    have not previously concluded that a two-word yell could violate the
    disorderly conduct statute’s unreasonable or excessive noise provision. To be sure,
    -4-
    shouting can form the basis of disorderly conduct. Those cases where shouting was
    part of a scenario that resulted in a finding of disorderly conduct, however, involved
    extended loud shouting and disruptive behavior or amplified sound. As the district
    court noted, context matters in analyzing the facts. In no case, has a two-word
    unamplified outburst constituted disorderly conduct.3
    3
    See Duhe v. City of Little Rock, Arkansas, No. 4:14-CV-580-KGB, 
    2017 WL 1536231
    , at *19–20 (E.D. Ark. Apr. 27, 2017), aff’d sub nom. Duhe v. City of Little
    Rock, 
    902 F.3d 858
    (8th Cir. 2018) (finding at least arguable probable cause existed
    to make a disorderly conduct arrest when persons were utilizing microphones and
    amplifiers for an extended time, several people in nearby businesses complained
    about the disruption of their work, traffic was disrupted, and the noise could be heard
    from a block away continuously); Williams v. State, 
    887 S.W.2d 312
    , 314 (Ark. Ct.
    App. 1994) (affirming the probable cause arrest of a man shouting and cursing at
    officers as they were arresting juvenile suspects, refusing police commands to back
    away, shouting and cursing at a store clerk, and pounding on the store window);
    Dubois v. State, No. CACR07-944, 
    2008 WL 2192096
    , at *2 (Ark. Ct. App. May 28,
    2008) (affirming a finding of disorderly conduct where a man, upon discharge from
    a medical center, angrily demanded drugs and a ride home, and in the presence of
    patients and staff “continued ‘hollering and yelling’ and using profanity for about 15
    minutes,” then continued to rant and use profanity after police were called); Pride v.
    State, No. CACR 99-272, 
    1999 WL 826184
    , at *1–2 (Ark. Ct. App. Oct. 13, 1999)
    (affirming disorderly cause conviction when law enforcement officer “heard the
    disturbance as he pulled up” to respond to a nuisance complaint, saw that a crowd had
    gathered and observed defendant “was yelling, screaming, using profanity, and acting
    in an irate, hostile, and irrational manner, and continued to do so after being placed
    in the police car”); Chambers v. State, No. CACR94-246, 
    1995 WL 23389
    , at *3
    (Ark. Ct. App. Jan. 18, 1995) (affirming disorderly conduct conviction of a man who,
    when asked by law enforcement officers for identification in a grocery store, “was
    arguing, cursing, and creating a scene in general, and people started to gather
    around”); Kelly v. State, No. CACR 89-340, 
    1990 WL 128206
    , at *1 (Ark. Ct. App.
    Sept. 5, 1990) (affirming disorderly conduct conviction of woman where a police
    officer responding to a nuisance call observed an upset woman “cursing very loud[ly]
    and using obscene language” in the presence of a gathering group, and when asked
    by officers what was wrong again “began cursing, ranting, and raving” so loudly that
    she had to be placed in closed police car to muffle noise).
    -5-
    Arkansas precedent declining to uphold a disorderly conduct charge is also
    illustrative. In M.J. v. State, the Arkansas Court of Appeals held that 20 seconds of
    public shouting involving foul language did not establish disorderly conduct. 
    381 S.W.3d 880
    , 883–84 (Ark. Ct. App. 2011). Thurairajah’s shout was unamplified and
    fleeting, no crowd gathered because of it, city traffic was not affected, no complaints
    were lodged by anyone in the community, business was not interrupted, nor were an
    officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was
    not an unreasonable or excessive noise. Trooper Cross lacked even arguable probable
    cause for an arrest and thus violated Thurairajah’s Fourth Amendment right to be free
    from unreasonable seizure.
    Thurairajah’s Fourth Amendment right to be free from unreasonable seizure
    was clearly established at the time of his arrest. See 
    Pearson, 555 U.S. at 232
    . “It was
    clearly established in 2013 ‘that a warrantless arrest, unsupported by probable cause,
    violates the Fourth Amendment.’” Hoyland v. McMenomy, 
    869 F.3d 644
    , 652 (8th
    Cir. 2017) (citing Baribeau v. City of Minneapolis, 
    596 F.3d 465
    , 478 (8th Cir. 2010)
    (per curiam)). No contrary precedent was issued between 2013 and 2015, when
    Trooper Cross arrested Thurairajah.
    Accordingly, we affirm the denial of qualified immunity for Thurairajah’s
    Fourth Amendment claim.
    B. First Amendment Claim
    Thurairajah also alleges that his shout was protected First Amendment speech.
    As protected speech, it should be free from retaliatory government actions.
    To prove a constitutional violation, Thurairajah must show that he was arrested
    in retaliation for a protected speech activity. See Hartman v. Moore, 
    547 U.S. 250
    ,
    256 (2006). This claim requires a four-part showing that
    (1) [Thurairajah] engaged in a protected activity; (2) [Trooper Cross]
    took adverse action against him that would chill a person of ordinary
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    firmness from continuing in the activity; (3) the adverse action was
    motivated at least in part by [Thurairajah’s] exercise of the protected
    activity; and (4) lack of probable cause or arguable probable cause.
    Hoyland v. McMenomy, 
    869 F.3d 644
    , 655 (8th Cir. 2017) (cleaned up). All four
    prongs are satisfied here.
    First, Thurairajah’s profane shout was protected activity. See, e.g., Cohen v.
    California, 
    403 U.S. 15
    , 25 (1971) (holding where defendant walked through
    courthouse corridor wearing jacket bearing the words “F**k the Draft” in place where
    women and children were present and no showed no intent to incite disobedience to
    or disrupt the draft, state lacked power to punish defendant for underlying content of
    message the inscription conveyed). Second, Trooper Cross’s arrest was an action that
    would chill continued activity by a person of ordinary firmness. As we recognized in
    Hoyland, “there can be little doubt that being arrested for exercising the right to free
    speech would chill a person of ordinary firmness from exercising that right in the
    
    future.” 869 F.3d at 657
    (internal quotation omitted). And, according to a fair reading
    of Trooper Cross’s affidavit, the arrest was motivated, at least in part, by the content
    of the shout. Cross Aff. at 1–2, Thurairajah v. Hollenbeck, No. 2:16-cv-02123 (W.D.
    Ark. June 16, 2017), ECF No. 21-4.4 Finally, as discussed above, Cross had neither
    probable cause nor arguable probable cause to arrest Thurairajah.5
    4
    The affidavit states that “the young children . . . upon hearing Mr.
    Thurairajah’s yell put their hands over their mouths as if to be alarmed by the
    statement.” Cross Aff. at 1. “[Trooper Cross] observed that they were affected and
    were alarmed by the statement yelled by Mr. Thurairajah. . . . Thus, [Trooper Cross]
    immediately decided to leave the traffic stop and initiated a traffic stop of Mr.
    Thurairajah.” 
    Id. at 2.
    It is clear from this reading that Trooper Cross was primarily
    focused on the content of the statement, not the volume or length of the noise.
    5
    Because we conclude that “Trooper Cross lacked even arguable probable
    cause for an arrest and thus violated Thurairajah’s Fourth Amendment right to be free
    from unreasonable seizure,” 
    see supra
    Part II.A, the Supreme Court’s recent decision
    holding that a First Amendment retaliatory arrest claim fails as a matter of law when
    the arrest is based on probable cause is inapposite. See Nieves v. Bartlett, No. 17-
    1174 (U.S. May 8, 2019).
    -7-
    Thurairajah’s First Amendment right to be free from retaliation was clearly
    established at the time of his arrest. “[T]he law is settled that as a general matter the
    First Amendment prohibits government officials from subjecting an individual to
    retaliatory actions . . . for speaking out.” 
    Hartman, 547 U.S. at 256
    . With limited
    exceptions not relevant here, even profanity is protected speech. See, e.g., 
    Cohen, 403 U.S. at 25
    . Criticism of law enforcement officers, even with profanity, is protected
    speech. See City of Houston, Texas v. Hill, 
    482 U.S. 451
    , 461 (1987); Hoyland, 
    869 F.3d 644
    .
    Accordingly, we hold that the district court did not err by denying qualified
    immunity to Trooper Cross for the First Amendment claim.
    III. Conclusion
    For the foregoing reasons, we affirm the district court’s order denying qualified
    immunity.
    ______________________________
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