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Hulbert v. Pope

United States District Court, D. Maryland

March 28, 2019

JEFF HULBERT, et. al., Plaintiffs,
SGT. BRIAN T. POPE, et al., Defendants.


          George L. Russell III United States District Judge.

         THIS 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.

         I. BACKGROUND [1]

         Plaintiff 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).

         On 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. ¶ 30).

         Sgt. 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).

         The 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. ¶ 47).

         Col. 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).

         On 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).

         On 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 No. 15).


         A. Standard of Review

         The 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).

         In 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.

         B. Extra-Pleading Materials

         The 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, 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).

         Defendants 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), [2] (Defs. Mot. Ex. B.1); (4) the February 6, 2018 citation issued to Kevin Hulbert under Code of Maryland Regulations (“COMAR”), [3] (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, (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.

         C. Analysis

         Defendants 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.

         1. Eleventh Amendment Immunity

         Plaintiffs 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).

         Plaintiffs seek relief of multiple types, including declaratory and injunctive relief, and money damages.[4] 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 ...

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