United States District Court, D. Maryland
JEFF HULBERT, et. al., Plaintiffs,
SGT. BRIAN T. POPE, et al., Defendants.
L. Russell III United States District Judge.
MATTER is before the Court on Defendants Sgt. Brian T. Pope
(“Sgt. Pope”) and Colonel Michael Wilson's
(“Col. Wilson”) Motion to Dismiss (ECF No. 11).
The Motion is ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2018). For
the reasons outlined below, the Court will grant in part and
deny in part the Motion.
Maryland Shall Issue, Inc. (“MSI”) is a
gun-owners' rights group whose membership includes
twin-brother Plaintiffs Jeffrey Hulbert and Kevin Hulbert
(collectively, the “Hulberts”). For several
years, the Hulberts and others have peacefully demonstrated
on the public sidewalks outside the State House in Annapolis,
Maryland, in protest of laws and policies they believe
violate the Second Amendment. (Compl. ¶¶ 1, 21- 23,
ECF No. 1). During those demonstrations, Maryland Capitol
Police (“MCP”) officers typically asked the
picketers to move to a different location, and they declined,
citing their right to demonstrate on a public sidewalk.
(Id. ¶ 26).
February 5, 2018, the Hulberts and approximately five other
people were picketing on the sidewalk near the State House.
(Id.¶¶ 24-25). Sgt. Pope approached them
and informed them that, because of a new policy ordered by
his supervisor, Col. Wilson, their demonstration needed to
move to the Lawyer's Mall, an area beyond the sidewalk
that generally requires a permit for any demonstration.
(Id.¶¶ 27-28). After asking the
demonstrators to move to the Lawyer's Mall, Sgt. Pope
left the area. (Id. ¶ 29). While some of the
picketers moved to the Lawyer's Mall, (id.
¶ 32), the Hulberts remained on the sidewalk,
(id. ¶¶ 30, 33). Jeff Hulbert kept holding
his sign, believing that the police order to move was
unlawful, (id. ¶ 33), and Kevin Hulbert began
using his cell phone to record the events, (id.
Pope “returned to the area and arrested Jeff Hulbert,
placing him in handcuffs.” (Id. ¶ 33).
Sgt. Pope directed another officer to arrest and handcuff
Kevin Hulbert. (Id. ¶ 35). The officers then
searched the Hulberts and transported them to the Annapolis
City Police precinct. (Id. ¶ 36). After an hour
and forty-five minutes in the precinct, the officers cited
and released the Hulberts. (Id. ¶¶ 37-38).
The citations charged the Hulberts with willful failure
“to obey a reasonable and lawful order of a law
enforcement officer to . . . prevent a disturbance of the
public peace.” (Id. ¶ 38; Defs.' Mot.
Dismiss [Defs.' Mot.”] Exs. A.1, A.2, ECF No. 11-1
at 23, 25).
next day, after videos of the arrests appeared on the
internet, the Hulberts participated in media interviews on
the sidewalk in front of the State House. (Id.
¶¶ 46- 47). The Hulberts told the journalists that
their arrests were unlawful because they had a constitutional
right to protest on the public sidewalks. (Id.
Wilson stood nearby during the interviews and approached the
Hulberts when the interviews concluded. (Id. ¶
48). Col. Wilson told them that he and other MCP officers had
spent “all day” reviewing negative media coverage
of the arrests. (Id. ¶ 49). He then presented
two new citations to each of the Hulberts. (Id.
¶ 50). All four of the new citations were signed by Sgt.
Pope and dated February 6, 2018. (Id. ¶ 51).
Two of the citations charged that, on February 5, 2018, the
Hulberts “refuse[d] to leave Lawyer's Mall a
property of state of Maryland public agency during regular
business hours upon being requested to do so by said Pope and
when the defendant was acting in a manner disruptive of and
disturbing to the conduct of normal business.”
(Id. ¶ 54; Defs.' Mot. Exs. B.1, B.3). The
other two citations charged that, “at Lawyer's
Mall-sidewalk public, ” the Hulberts “prevent[ed]
or disturb[ed] the general public from obtaining services
provided on the property or obstruct[ed] walks.”
(Id. ¶ 54; Defs.' Mot. Exs. B.2, B.4).
Plaintiffs allege that the statements in the new citations
are untrue, and that they were issued in retaliation for the
Hulberts' public comments about their arrests.
(Id. ¶¶ 53, 55-58).
February 14, 2018, the Hulberts and MSI sued Col. Wilson and
Sgt. Pope in their official and individual capacities.
(Id. at 1). In their ten-Count Complaint, Plaintiffs
allege Defendants: violated Plaintiffs' rights under the
First Amendment to the U.S. Constitution by arresting them
during a lawful demonstration (Count I) and while Kevin
Hulbert was lawfully filming police officers (Count II);
violated Plaintiffs' First Amendment rights by
retaliating against them for their picket sign messages on
February 5, 2018 and for their media comments on February 6,
2018 (Count III); violated Plaintiffs' Fourth Amendment
rights by performing an unreasonable search and seizure and
arrest without probable cause (Count IV) and by using
excessive force (Count V); violated the Plaintiffs' free
speech rights under Article 40 of the Maryland Declaration of
Rights (Count VI); violated the Hulberts' rights under
Articles 24 and 26 of the Maryland Declaration of Rights, to
be free from unreasonable search and seizure (Count VII) and
excessive force (Count VIII); falsely arrested the Hulberts
(Count IX); and falsely imprisoned the Hulberts (Count X).
(Id. ¶¶ 72-146). Plaintiffs bring their
federal constitutional claims under 42 U.S.C. § 1983
(2018) (Id. ¶¶ 6, 9, 74, 79, 84).
Plaintiffs seek declaratory and injunctive relief, as well as
compensatory and punitive damages. (Id. ¶ 6).
April 11, 2018, Defendants filed their Motion to Dismiss.
(ECF No. 11). On May 8, 2018, Plaintiffs filed an Opposition.
(ECF No. 14). On May 22, 2018, Defendants filed a Reply. (ECF
Standard of Review
purpose of a motion under Federal Rule of Civil Procedure
12(b)(6) motion is to “test[ ] the sufficiency of a
complaint, ” not to “resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206,
214 (4th Cir. 2016) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A
complaint fails to state a claim if it does not contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), or does not “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, 550 U.S. 544, 570 (2007)). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of America, N.A., 917
F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012)),
aff'd sub nom. Goss v. Bank of America, N.A.,
546 Fed.Appx. 165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But,
the court need not accept unsupported or conclusory factual
allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979), or legal conclusions couched as factual
allegations, Iqbal, 556 U.S. at 678.
general rule is that a court may not consider extrinsic
evidence when resolving a Rule 12(b)(6) motion. See
Chesapeake Bay Found., Inc. v. Severstal Sparrows Point,
LLC, 794 F.Supp.2d 602, 611 (D.Md. 2011). However, this
general rule is subject to several exceptions. First, a court
may consider documents attached to the complaint,
see Fed.R.Civ.P. 10(c), as well as those attached to
the motion to dismiss, so long as they are integral to the
complaint and authentic, see Blankenship v. Manchin,
471 F.3d 523, 526 n.1 (4th Cir. 2006). Second, a court may
consider documents referred to and relied upon in the
complaint “even if the documents are not attached as
exhibits.” Fare Deals Ltd. v. World Choice
Travel.com, Inc., 180 F.Supp.2d 678, 683 (D.Md. 2001);
accord New Beckley Mining Corp. v. Int'l Union,
United Mine Workers of America, 18 F.3d 1161, 1164 (4th
Cir. 1994). Third, a Court may consider matters of public
record. Philips v. Pitt Cty. Mem'l Hosp., 572
F.3d 176, 180 (4th Cir. 2009). In the event that any of these
properly considered extra-pleading materials conflict with
the “bare allegations of the complaint, ” the
extra-pleading materials “prevail.” Fare
Deals, 180 F.Supp.2d at 683; accord RaceRedi
Motorsports, LLC v. Dart Mach., Ltd., 640 F.Supp.2d 660,
664 (D.Md. 2009).
attach six exhibits to their Motion: (1) the February 5, 2018
citation issued to Kevin Hulbert, (Defs.' Mot. Ex. A.1);
(2) the February 5, 2018 citation issued to Jeff Hulbert,
(Defs.' Mot. Ex. A.2); (3) the February 6, 2018 citation
issued to Kevin Hulbert under Maryland Code Annotated,
Criminal Law [“CR”] Article § 6-409(b),
(Defs. Mot. Ex. B.1); (4) the February 6, 2018 citation
issued to Kevin Hulbert under Code of Maryland Regulations
(“COMAR”) 04.05.01.03,  (Defs.' Mot. Ex. B.2);
(5) the February 6, 2018 citation issued to Jeff Hulbert
under CR 6-409(b), (Defs.' Mot. Ex. B.3); and (6) the
February 6, 2018 citation issued to Jeff Hulbert under COMAR
04.05.01.03, (Defs.' Mot. Ex. B.4). The Complaint refers
to and relies on all six of these citations, and Defendants
do not dispute their authenticity. Accordingly, the Court
will consider them when assessing Defendants' Motion.
advance three main arguments in their Motion: (1) they are
entitled to Eleventh Amendment immunity in their official
capacities; (2) they are entitled to qualified immunity; and
(3) they are entitled to statutory state personnel immunity
for the state law claims. Plaintiffs counter that they have
adequately pled their claims and that Defendants are not
entitled to any type of immunity. The Court addresses the
Defendants' arguments in turn.
Eleventh Amendment Immunity
sue Defendants in both their individual and official
capacities. A suit may be maintained against state officials
acting in their official capacities only to the extent that
it seeks injunctive or declaratory relief. Ex Parte
Young, 209 U.S. 123 (1908) (holding that the Eleventh
Amendment allows prospective relief against a state official
to prevent future constitutional or statutory violations).
State officials acting in their official capacities are
outside the class of “persons” who can be sued
for damages under § 1983. Will v. Mich. Dep't of
State Police, 491 U.S. 58, 71 (1989). State officials
may, however, be sued for damages in their individual
capacities. Hafer v. Melo, 502 U.S. 21, 23 (1991).
seek relief of multiple types, including declaratory and
injunctive relief, and money damages. The parties appear to agree
that Plaintiffs cannot pursue money damages against
Defendants in their official capacities; Plaintiffs may only
pursue declaratory and injunctive relief against Defendants
in their official capacities and money damages in their
individual capacities. (See Pls.' Opp'n to
Defs.' Mot. Dismiss & Cond. Req. Hearing
[“Pls.' Opp'n”] at 31-32, ECF No. 14;
Defs.' Mot. at ...