Lauren Graham v. C. Gagnon

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1521

LAUREN GRAHAM,

Plaintiff - Appellant,

v.

C. GAGNON; JANNIE CLIPP,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. T. S. Ellis, III, Senior

District Judge. (1:14-cv-00872-TSE-TCB)

Argued: May 11, 2016 Decided: July 27, 2016

Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit

Judge.

Reversed and remanded by published opinion. Judge Floyd wrote

the opinion, in which Judge Motz and Senior Judge Davis

concurred.

Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,

Virginia, for Appellant. Julia Bougie Judkins, BANCROFT,

MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax, Virginia, for

Appellees.

FLOYD, Circuit Judge:

Appellant Lauren Graham was arrested for obstruction of

justice. The obstruction charge was ultimately dismissed and

her record expunged. Graham subsequently filed a civil lawsuit

against the police officers responsible for her arrest, alleging

that the officers violated her Fourth Amendment rights by

arresting her without probable cause. Following discovery, the

officers moved for summary judgment, arguing that they were

entitled to qualified immunity. The district court granted the

officers’ motion, and Graham appealed. Because we conclude that

it would have been clear to reasonable officers in Appellees’

position that they lacked probable cause to arrest Graham, we

reverse the grant of summary judgment and remand.

I.

The facts underlying this appeal are drawn from the summary

judgment record made after discovery in the district court and

are presented here in the light most favorable to Graham, the

non-moving party. See, e.g., Merchant v. Bauer, 677 F.3d 656,

658 n.1 (4th Cir. 2012).

A.

At about 10:30 p.m. on September 16, 2012, Mitchell Lee

Cannon called the Falls Church, Virginia, Police Department

(FCPD) to report an assault. Cannon was leaving a convenience

store when he encountered Colby Twinam, a male in his early

twenties, in the parking lot. Apparently still harboring a

grudge from high school, Twinam punched Cannon in the back of

the head. Cannon pushed Twinam away and retreated behind his

car. Twinam taunted Cannon, broke Cannon’s car antenna, and

then ran off.

FCPD officer Clark Gagnon responded to Cannon’s assault

report. After interviewing Cannon, Gagnon obtained an arrest

warrant for Twinam for assault and destruction of property.

Based on a records check, Gagnon learned that Twinam had prior

arrests in 2007 and 2008 for destruction of property and

possession of marijuana. FCPD records indicated that Twinam’s

address was 205 Grove Avenue in Falls Church. Gagnon radioed

other on-duty FCPD officers to request assistance in arresting

Twinam; FCPD officers Jannie Clipp and Alan Freed each responded

that they would assist.

Both Clipp and Freed arrived at the house at 205 Grove

Avenue before Gagnon, a few minutes after midnight. Clipp

proceeded to the front door; Freed went to the side of the house

where steps led up to a covered porch and a side door. Freed

encountered Twinam, who was sitting on the side porch steps.

After ascertaining Twinam’s identity, Freed told him that they

had a warrant for his arrest. Twinam responded by running into

2

the house and shutting and locking the side door. Twinam

shouted “Mom, the cops are here”! J.A. 460. Clipp (at the

front door) and Freed (at the side door) began knocking loudly

and ringing the doorbell.

B.

Graham, Twinam’s 56-year-old mother, had been asleep

upstairs and was awakened by the commotion. She “grabbed a

robe,” J.A. 52, and came downstairs to find “a lot of pounding

and yelling” at the front door as well as “pounding” at the side

door. J.A. 53. The family dog was “at this point barking

crazily.” J.A. 54. She did not open the side door, but

proceeded to the front door in the living room. Graham opened

the front door, which consisted of both a main wooden door and a

storm door on an air pump.

Clipp told Graham that they had a warrant and were there to

arrest Twinam. Graham asked to see the warrant and Clipp told

her that the officers did not have the warrant with them. At

some point Freed joined Clipp at the front door; both officers

told Graham that she needed to produce Twinam to be taken into

custody. Graham said, “[L]et me speak with my son,” J.A. 77,

and left the doorway to go find him. Clipp, following standard

practice, placed her foot in the doorway; the storm door,

3

closing automatically on the air pump, “then came in contact

with [her] foot.” J.A. 28, 82.

Graham found her son, Twinam, in the kitchen, talking to

his girlfriend on his cellphone. The kitchen was not visible

from the front door. Twinam was apparently asking his

girlfriend whether he ought to try and run for it. Graham said:

“[W]hy would you do that? That’s just dumb.” J.A. 69. She

told Twinam, “[Y]ou need to come now, you need to cooperate. I

don’t know what the issue is but you’ve got to go.” J.A. 71.

At some point while Graham was in the kitchen, Gagnon

arrived at the house and joined Clipp and Freed at the front

door. Graham returned to the front door and told the officers

that “[she] was talking to [her son] and trying to get him to

come out.” J.A. 73. At some point Graham’s fiancé, Richard

Lilitch, who had also been asleep upstairs, came downstairs to

the living room.

Graham and Lilitch returned to the kitchen and convinced

Twinam to go out to the police officers. The most direct route

from the kitchen to the living room passed through a pantry

area. The pantry had doggie gates at either end to pen in the

family dog. Twinam stepped over the first gate, followed by

Graham and then Lilitch. As Twinam stepped over the second

gate, he came into view of the officers at the front door.

Gagnon and Freed entered the house and grabbed Twinam; in the

4

process, Twinam and Freed tripped on the doggie gate and wound

up on the floor. The officers handcuffed Twinam and took him

into custody. About six or seven minutes had elapsed since

Graham had been awakened from her sleep.

C.

Gagnon took Twinam to the city detention center for booking

and turned him over to the sheriff. Gagnon then went to the

duty magistrate and applied for an arrest warrant for Graham.

Gagnon sought to arrest Graham for obstruction of justice under

Virginia Code § 18.2-460(A). The Virginia statute provides:

“If any person without just cause knowingly obstructs . . . any

law-enforcement officer . . . in the performance of his duties

as such . . . he shall be guilty of a Class 1 misdemeanor.” Id.

The magistrate denied the warrant application.

D.

The three FCPD officers’ next shift together was a couple

days later. At roll call, Gagnon told Clipp and Freed that the

magistrate had denied his request for an arrest warrant for

Graham. Clipp expressed surprise, telling Gagnon that Graham

“pretty much tried to shut the door on [me] and actually hit

[me] with the door.” J.A. 164. Gagnon had not previously been

aware of this information: he had not arrived at Graham’s house

5

by that point and neither Clipp nor Freed had reported it over

the radio.

Gagnon went before the duty magistrate, a different

individual than the magistrate who had denied his first warrant

request. Gagnon told the second magistrate that he had

previously been denied an arrest warrant, but informed the

magistrate that he had learned new information. Gagnon told the

second magistrate “something like” “Ms. Graham had shut the door

on Officer Clipp’s foot.” J.A. 170-71. The second magistrate

authorized an arrest warrant for Graham.

Gagnon arrested Graham outside her home on September 20,

2012. She was brought before a magistrate and released on

personal recognizance. The charge was later dismissed with

prejudice and the record of her arrest expunged.

E.

About a year later, Graham filed an administrative

complaint with the FCPD. The complaint was investigated by an

internal affairs officer, who interviewed the officers involved

and issued a recommendation against further action. The FCPD

Chief, Mary Gavin, conveyed this conclusion to Graham in a

letter dated November 8, 2013. Gavin told Graham that “[t]he

incident involved an arrest situation of an individual that was

evading arrest in your residence. The officers were reacting to

6

a situation that was becoming increasingly difficult because of

your actions.” J.A. 27.

Graham subsequently filed suit against Gagnon and Clipp

pursuant to 42 U.S.C. § 1983. She alleged that the officers

violated her Fourth Amendment rights by arresting her without

probable cause to suspect she had violated Virginia’s

obstruction statute. The district court oversaw discovery,

after which the parties cross-moved for summary judgment.

Graham argued that on any view of the facts it was objectively

unreasonable for an officer to conclude there was probable cause

to arrest her. The officers contended the opposite and asserted

that they were protected by qualified immunity.

The district court found that nothing in the record

rebutted “the presumption of reasonableness that attends the

issuance of a warrant by a neutral magistrate.” J.A. 465. The

district court further found that:

[I]t cannot be said on this record that the magistrate

was so obviously in error that any reasonable officer

would have recognized the error. . . . There is a

continuum of behavior from mere passive lack of

cooperation to active attempts to prevent an arrest

and it is the magistrate’s responsibility to determine

whether or not the facts and circumstances reported to

her fall on the probable cause side of this

continuum. . . .

The events at the Twinam/Graham residence were not so

clearly passive noncooperation that no reasonably

competent officer would have concluded that a warrant

should issue. . . . Defendants, it appears, believed

that when plaintiff left the front door to speak with

7

her son in the kitchen she was openly encouraging her

son not to cooperate with [them] and come out of the

house. Given the officers’ inability to see or hear

plaintiff’s conversation, the magistrate’s decision

was not so obviously in error that defendants should

be liable for failing to question her judgment.

J.A. 467-68 (citations omitted). The district court accordingly

granted the officers’ summary judgment motion on the basis of

qualified immunity and denied Graham’s cross-motion as moot.

Graham timely appealed.

II.

Whether a party is entitled to summary judgment is a

question of law we review de novo. Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc). The district court’s grant

of summary judgment to the officers was appropriate only if,

taking the evidence and all reasonable inferences drawn

therefrom in the light most favorable to Graham, no material

facts were disputed and the officers were entitled to qualified

immunity as a matter of law. See id.

III.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

8

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In practical

effect, qualified immunity “gives government officials breathing

room to make reasonable but mistaken judgments.” Messerschmidt

v. Millender, 132 S. Ct. 1235, 1244 (2012) (citation omitted).

This allowance for reasonable mistakes is the product of

“balanc[ing] two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson,

555 U.S. at 231.

The shield of qualified immunity is lost when a government

official (1) violates a constitutional right and (2) that right

was clearly established. See, e.g., Merchant, 677 F.3d at 661.

The right at issue here is not the general right to be free from

arrest without probable cause, but rather the right to be free

from arrest under the particular circumstances of the case.

See, e.g., Pritchett v. Alford, 973 F.2d 307, 313-14 (4th Cir.

1992). 1 The appellee officers lose the shield of qualified

1

Framing the right as the general right to be free from

arrest without probable cause would frustrate the purpose of

qualified immunity. It is clearly established that the Fourth

Amendment prohibits police officers from arresting individuals

without probable cause. See, e.g., McAfee v. Boczar, 738 F.3d

81, 87 (4th Cir. 2013); Miller v. Prince George’s Cty., 475 F.3d

621, 627 (4th Cir. 2007). But framing the right at that level

(Continued)

9

immunity if it would have been clear to reasonable officers in

their position that they lacked probable cause to arrest Graham

for violating Virginia’s obstruction of justice statute. See

id. In other words, the officers’ immunity turns on the

“objective legal reasonableness” of their conclusion that there

was probable cause to arrest Graham. See Messerschmidt, 132 S.

Ct. at 1245.

IV.

Graham argues that it was objectively unreasonable for

Gagnon and Clipp to conclude there was probable cause to arrest

her. Therefore, Graham argues, the district court erred in

holding that the officers were entitled to qualified immunity.

We agree.

A.

Before evaluating the reasonableness of the officers’

probable cause determination, we first clarify the effect of the

of generality would mean that the “clearly established” prong

would automatically be met in every suit alleging an arrest

without probable cause. The immunity analysis would then turn

solely on whether the officer correctly concluded that probable

cause existed, eliminating the “breathing room” to make

reasonable mistakes. Qualified immunity does not shield

officials from liability for all of their mistakes, but it does

shield them when their mistakes were reasonable.

10

arrest warrant. The officers make much of the fact that Gagnon

obtained—at least the second time he asked—an arrest warrant

from a neutral magistrate. However, an arresting officer is not

automatically immunized from suit merely because the officer

successfully requested an arrest warrant first.

“[T]he fact that a neutral magistrate has issued a warrant

is the clearest indication that the officers acted in an

objectively reasonable manner . . . . [but] the fact that a

neutral magistrate has issued a warrant authorizing the

allegedly unconstitutional search or seizure does not end the

inquiry into objective reasonableness.” Messerschmidt, 132

S. Ct. at 1245. 2 For example, a warrant will not preclude a

civil suit when “it is obvious that no reasonably competent

officer would have concluded that a warrant should issue.” Id.

(quoting Malley, 475 U.S. at 341). The Malley Court explained:

[I]t goes without saying that where a magistrate acts

mistakenly in issuing a warrant but within the range

of professional competence of a magistrate, the

officer who requested the warrant cannot be held

liable. But it is different if no officer of

reasonable competence would have requested the

warrant, i.e., his request is outside the range of the

2 Messerschmidt was a search, vice seizure, case, but the

same standard is applicable in both contexts. See, e.g.,

Messerschmidt, 132 S. Ct. at 1245 n.1 (explaining that “the same

standard of objective reasonableness” applied in suppression-

hearing cases “defines the qualified immunity accorded an

officer who obtained or relied on an allegedly invalid warrant”

and citing Malley v. Briggs, 475 U.S. 335, 344 (1986), an arrest

case).

11

professional competence expected of an officer. If

the magistrate issues the warrant in such a case, his

action is not just a reasonable mistake, but an

unacceptable error indicating gross incompetence or

neglect of duty. The officer then cannot excuse his

own default by pointing to the greater incompetence of

the magistrate.

475 U.S. at 346 n.9. 3 Consistent with Malley and Messerschmidt,

we have repeatedly held that arrest warrants do not confer

immunity if it was objectively unreasonable to conclude there

was probable cause for the arrest. See, e.g., Merchant, 677

F.3d at 665-66; McAfee, 738 F.3d at 87. Accordingly, if the

officers’ decision to request a warrant for Graham’s arrest was

outside the range of professional competence expected of an

officer—that is, if it was objectively unreasonable to conclude

there was probable cause that Graham violated Virginia’s

obstruction statute—then the officers are not immune from suit.

3The Malley Court also stated that “[i]t is a sound

presumption that the magistrate is more qualified than the

police officer to make a probable cause determination.” Malley,

475 U.S. at 346 n.9 (citation omitted). Malley does not clarify

the effect on qualified immunity when that presumption is

rebutted. As the district court noted, in Virginia “magistrates

need not be members of the bar or trained lawyers.” J.A. 464

n.4 (citing the Supreme Court of Virginia’s Magistrate Manual).

The record does not disclose the identity of the magistrates

involved in this case, but we need not decide whether the Malley

presumption holds as our conclusion here does not turn on the

magistrates’ qualifications. We therefore presume that the

magistrates were in fact more qualified than the officers to

make a probable cause determination.

12

B.

We now turn to the reasonableness of the officers’ probable

cause determination. As we explained above, if a police officer

incorrectly determines that probable cause existed, the officer

does not necessarily lose the protection of qualified immunity.

If the probable cause determination, though mistaken, was

nevertheless objectively reasonable, the officer should enjoy

immunity. However, where the officer’s mistake was objectively

unreasonable, the officer may be subject to civil liability.

It is impossible to determine whether a probable cause

determination was mistaken—and, if so, whether such a mistake

was reasonable—without an understanding of what would constitute

probable cause under the circumstances. “Whether probable cause

exists in a particular situation . . . always turns on two

factors in combination: the suspect’s conduct as known to the

officer, and the contours of the offense thought to be committed

by that conduct.” Pritchett, 973 F.2d at 314; see also, e.g.,

McAfee, 738 F.3d at 87; Sevigny v. Dicksey, 846 F.2d 953, 956-57

(4th Cir. 1988). Thus, we ask: (1) what did Clipp and Gagnon

know of Graham’s conduct?; and (2) what are the contours of the

conduct proscribed by Virginia’s obstruction statute? By

comparing Graham’s known conduct to the conduct proscribed by

the Virginia statute, we can then assess the reasonableness of

the officers’ decision to seek Graham’s arrest.

13

1.

In determining what conduct of Graham’s was known to the

officers, we consider only “information actually possessed by

the officer[s] at the critical time, or that was then reasonably

available to [them], and in light of any exigencies of time and

circumstance that reasonably may have affected the officer[s’]

perceptions.” Pritchett, 973 F.2d at 312 (citations omitted).

In other words, we do not impute factual knowledge to the

officers that they did not have or that was not reasonably

available to them. Facts may later be discovered that would

have made it clear to the officers that no crime had been

committed; but, if those facts were not known or reasonably

available to the officers before the arrest, we do not include

those facts in the qualified immunity calculus.

We are mindful, however, that this case is before us on the

officers’ summary judgment motion. We therefore take the

evidence and all reasonable inferences to be drawn therefrom in

the light most favorable to Graham. Henry, 652 F.3d at 531. We

have explained that “[t]he importance of summary judgment in

qualified immunity cases ‘does not mean . . . that summary

judgment doctrine is to be skewed from its ordinary operation to

give special substantive favor to the defense.’” Wilson v.

Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (quoting Pritchett,

973 F.2d at 313).

14

The operation of these principles to the record here is

straightforward: the officers are assumed to have possessed the

information they would have had if events unfolded as Graham

asserts. For example, the parties dispute the time that elapsed

from Graham being awakened until Twinam was in custody: the

officers assert it was approximately 15-20 minutes while Graham

puts the length of her involvement on the order of 6-7 minutes.

Compare Appellees’ Br. 8, with Appellant’s Br. 15-16. On the

officers’ summary judgment motion, we assume Graham’s version of

the timeline. 4 We thus assume that the officers’ “actually

possessed” the information that the total time of Graham’s

involvement was no more than about seven minutes.

The factual version of events we laid out early in the

opinion is Graham’s version. This is the version from which the

officers are assumed to have gathered the information they could

use to determine whether there was probable cause that Graham

4“[W]hen documentary evidence ‘blatantly contradict[s]’ a

[party’s] account ‘so that no reasonable jury could believe it,’

a court should not credit [that party’s] version on summary

judgment.” Witt v. W. Va. State Police, Troop 2, 633 F.3d 272,

276-77 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372,

380 (2007)). The record includes recordings of the officers’

radio communications on the night of Twinam’s arrest. The log

of those recordings is time-stamped and thus enables at least a

partial reconstruction of the timing of events. Having reviewed

these recordings, we observe that the recordings are consistent

with—rather than contradictory to—Graham’s timeline. The time

stamps cast serious doubt on the viability of the officers’

account of the time.

15

had committed a crime. However, not every fact in Graham’s

account of the evening is assumed to have been possessed by the

officers. For example, on summary judgment we accept Graham’s

assertion that, while in her kitchen, she was encouraging her

son to cooperate and surrender himself. But the kitchen was out

of sight and earshot of the officers at the front door. It

would thus be inappropriate to assume the officers “actually

possessed” the details of that conversation. Put another way,

even assuming events unfolded as Graham asserts, the officers

would still not have “actually possessed” information about a

conversation they were not in a position to hear.

The district court correctly did not charge the officers

with knowledge of that conversation. However, rather than

simply leaving the content of the conversation out of the

analysis, the district court instead improperly credited the

officers’ subjective beliefs about what might have been

happening in Graham’s kitchen. The district court stated, “[The

officers], it appears, believed that when [Graham] left the

front door to speak with her son in the kitchen she was openly

encouraging her son not to cooperate with them and come out of

the house.” J.A. 468 (citation omitted). We have repeatedly

explained that an officer’s subjective belief is not legally

relevant to the probable cause analysis. “Because probable

cause is an objective test, we examine the facts within the

16

knowledge of arresting officers to determine whether they

provide a probability on which reasonable and prudent persons

would act; we do not examine the subjective beliefs of the

arresting officers to determine whether they thought that the

facts constituted probable cause.” United States v. Gray, 137

F.3d 765, 769 (4th Cir. 1998) (collecting cases); cf. Henry, 652

F.3d at 535 (“[O]ur Court has consistently conducted an

objective analysis of qualified immunity claims and stressed

that an officer’s subjective intent or beliefs play no role.”).

The officers could still have incorporated a suspicion that

Graham was encouraging her son to flee into their probable cause

calculation if it was objectively reasonable to suspect so—that

is, if a person “of reasonable caution . . . [would] believ[e]

[it], in the circumstances.” See Michigan v. DeFillippo, 443

U.S. 31, 37 (1979). Here, however, the officers do not point to

any factual circumstance that would make a person of reasonable

caution believe Graham was inciting her son to flight. For

summary judgment purposes: (1) Graham told the officers, “[L]et

me speak with my son and get him,” J.A. 77; (2) Graham walked

into the house and then returned within a minute or so, telling

the officers that she “was talking to [her son] and trying to

get him to come out,” J.A. 73; and (3) Graham again walked into

the house and within another minute or so her son was walking

into view of the officers at the front door where he was taken

17

into custody. J.A. 74. These facts are not flatly incompatible

with a reality in which Graham was in the kitchen encouraging

her son to flee arrest: Graham could have been repeatedly lying

to the officers, and her sagacious son might have decided to

give himself up against the advice of his mother. But if the

officers believed that Graham was encouraging Twinam to flee, 5

that belief was, at best, a hunch, and “a mere hunch that

illegal activity is afoot . . . [is not] probable cause.” Doe

v. Broderick, 225 F.3d 440, 452 (4th Cir. 2000) (citing United

States v. Sokolow, 490 U.S. 1, 7 (1989)). 6

5

We find it difficult to reconcile such a belief with the

actions of the officers here. If the officers believed Graham

was actively encouraging her son to flee arrest, it strikes us

as odd that they would not, at the very least, have asked her to

stop doing so when she returned to the front door. Any number

of other actions, such as, for example, having one of the three

officers watch the back door, might also have been consistent

with a belief that a footrace was imminent.

6

Even if Graham had been suggesting her son leg it out the

back door, it is not at all clear that such encouragement would

have put Graham in violation of the Virginia obstruction

statute. In Atkins v. Commonwealth, police officers were

attempting to detain Atkins on suspicion of stealing a car. 678

S.E.2d 834, 835 (Va. Ct. App. 2009). Atkins fled from the

officers into nearby woods, where he eluded capture for four

hours. Id. The Virginia Court of Appeals held that these facts

were legally insufficient to establish obstruction under

Virginia Code § 18.2-460(A). Id. If actual flight is not

obstruction, it would be odd if suggested flight was.

18

2.

We turn now to the contours of the conduct proscribed by

the Virginia obstruction statute. The statute under which

Graham was arrested states: “If any person without just cause

knowingly obstructs . . . any law-enforcement officer . . . in

the performance of his duties as such . . . he shall be guilty

of a Class 1 misdemeanor.” Va. Code Ann. § 18.2-460(A). This

sparse language could be read in the first instance to proscribe

a wide ambit of conduct, although we would still struggle to fit

Graham’s conduct within that ambit. At an absolute minimum,

something she did must have “obstructed” an attempted action of

one of the officers. We cannot find in the record any attempted

action by the officers that could be said to have been

“obstructed” by Graham, and the officers’ brief and oral

argument are likewise missing even a suggested action that was

actually obstructed.

Regardless, we are not the first court to read this

statute. Both the Virginia courts and this Court have applied

the statute many times before, and there is a small mountain of

caselaw that makes clear that whatever the outer boundary of

Virginia Code § 18.2-460(A), Graham came nowhere near it. In

Wilson, we explained that “[t]he Virginia courts . . . have

subjected the Statute to a limiting construction, under which a

person must do more than merely render an arrest more difficult

19

or inconvenient than it might otherwise have been . . . in order

to be criminally liable.” 337 F.3d at 399 (citing Ruckman v.

Commonwealth, 505 S.E.2d 388, 389 (Va. Ct. App. 1998)). We

further explained that “[t]he stringent definition of

obstruction that appears in Ruckman is nothing new to Virginia’s

jurisprudence,” and we continued by noting that “[w]e have

acknowledged the distinction that the Virginia courts have long

drawn between conduct that merely impedes or frustrates the

officer, which does not ground liability under the Obstruction

Statute, and conduct that intentionally thwarts or prevents an

arrest, which does.” Id. at 399-400 (citing Rogers v.

Pendleton, 249 F.3d 279, 291 (4th Cir. 2001)); accord, e.g.,

Jordan v. Commonwealth, 643 S.E.2d 166, 171 (Va. 2007). Graham

did not thwart or prevent Twinam’s arrest; it is far from

apparent that she impeded or frustrated it either. Under

Virginia law, it is clear there was no probable cause to arrest

Graham for obstruction of justice.

The officers advance the idea that Graham was less than

fully cooperative or that her actions made their task more

difficult. This was exactly the theory conveyed to Graham by

the FCPD Chief after Graham complained about the officers’

actions; Chief Gavin explained to Graham that Gavin felt her

officers were right to arrest Graham because they “were reacting

to a situation that was becoming increasingly difficult because

20

of your actions.” J.A. 27. Even if Graham did make things more

difficult, 7 it is beyond debate that such conduct does not fall

within Virginia’s obstruction statute: “[Section] 18.2–460(A)

requires ‘actual hindrance or obstruction of the officer,’

‘opposition or resistance by direct action.’ ‘[O]bstruction of

justice does not occur when a person fails to cooperate fully

with an officer or when the person’s conduct merely renders the

officer’s task more difficult’ or ‘frustrate[s] [his or her]

investigation.’” Rogers, 249 F.3d at 291 (quoting Polk v.

Commonwealth, 358 S.E.2d 770, 772–73 (Va. Ct. App. 1987), and

Ruckman, 505 S.E.2d at 389, 390). It is objectively

unreasonable to conclude anything other than that Graham’s

conduct fell well outside the Virginia statute. Accord, e.g.,

Kee v. City of Hampton, No. 2597-08-1, 2009 WL 3734053, at *3

7 The officers do not make clear what about Graham’s conduct

made the arrest more difficult. At oral argument, counsel for

the officers suggested that it would have been unproblematic had

Graham simply stayed in bed rather than coming downstairs and

opening the front door. It seems extremely unlikely that

Graham’s actual conduct in coming downstairs did not make

Twinam’s arrest at least marginally less difficult for the

officers than had she put in earplugs and kept snoozing.

Regardless, once she opened the door and the officers asked her

to produce her son, it is unclear what the officers expected her

to do. Graham was about 56 years old and Twinam was about 21.

The officers could not have reasonably expected Graham to

physically wrestle her son to the front door. Graham was left

to the power of her persuasion, a power she successfully used to

compel her son into custody within a matter of minutes.

Graham’s conduct strikes us as about as helpful as could be

expected.

21

(Va. Ct. App. Nov. 10, 2009) (“[A]ppellant, by initially not

allowing the police officer into his house, merely made the

[domestic abuse] investigation more difficult by failing to

cooperate with the officer. There was no direct act by

appellant to resist the officer. Courts have repeatedly held

that such indirect acts are not enough to constitute

obstruction.” (collecting cases)).

The district court acknowledged some of these cases in a

footnote. It further acknowledged Graham’s argument that those

cases establish that the facts here did not amount to probable

cause, and characterized that argument as “not plainly

insubstantial.” J.A. 466-67. The district court nevertheless

found the officers were entitled to qualified immunity after

concluding, essentially, that the officers’ mistake was

reasonable. It was not.

The district court summarized Virginia law thusly: “Mere

passive lack of cooperation does not constitute probable cause,

whereas active refusal to cooperate, including making active

efforts to prevent the arrest from taking place, clearly may

amount to obstruction.” J.A. 467. Even if this statement

correctly characterized Virginia law, we think it would still be

objectively unreasonable to conclude Graham made “active efforts

to prevent the arrest from taking place.” But it does not

correctly characterize Virginia law. As just one example,

22

Atkins held that a suspect who flees officers attempting to

detain him, and then hides out in the woods for four hours

evading the officers, cannot be convicted under the obstruction

statute. 678 S.E.2d at 835. Atkins’s actions appear to fall

squarely at the “active efforts” end of the district court’s

obstruction continuum, but such actions have been clearly held

to fall outside the statute.

The district court’s formulation also strikes us as

unworkable in practice. If an individual refuses to open her

front door to officers attempting to investigate, is the

individual “passively not opening the door” or “actively

refusing to cooperate”? Cf. Kee, 2009 WL 3734053, at *3. These

difficulties are illustrated by Appellees’ contention at oral

argument that Graham could not have been arrested had she stayed

upstairs and refused to open the door, a set of circumstances

that we think would have made Twinam’s arrest more difficult

than what actually occurred. Courts, however, need not struggle

with the semantics of “activity” and “passivity”; as we

explained earlier, obstruction under the Virginia statute does

not turn on such characterizations.

Finally, we address the officers’ contention that “Graham’s

argument that she did not obstruct justice under Virginia Code

§ 18.2-460, and that there was no probable cause for her arrest

under that statute, is irrelevant.” Appellees’ Br. 15. It is

23

true that an actual lack of probable cause is not dispositive

for qualified immunity purposes; qualified immunity protects

officers who make mistakes if those mistakes are reasonable.

But the officers’ contention misses the point. The boundaries

of the statute are extremely relevant to an assessment of

whether a mistake was reasonable.

The officers’ misconception may explain why they cite next

to no cases discussing the substantive scope of the Virginia

statute. The officers cite Polk for the proposition that “an

offender need not actually obstruct an officer to be guilty of

obstruction of justice—an offender’s mere attempt to do so

constitutes a substantive offense.” Appellees’ Br. 28. As an

initial matter—and as the officers acknowledge—Polk was applying

a different statute that criminalized “attempt[ing] to

intimidate or impede a . . . law-enforcement officer” “by

threats, or force.” See 358 S.E.2d at 771 n.1. It is unclear

what support the officers seek from Polk, but the court there

specifically contrasted the threats statute with other Virginia

statutes—such as the one at issue here—“requiring actual

‘obstruction.’” Id. at 772-773.

If the officers are suggesting that Graham obstructed

justice in the same manner as Polk—i.e., verbally—they are

mistaken. Polk was convicted under the threats statute after

repeatedly threatening to kill his arresting officer. Id. at

24

771. Graham was arrested pursuant to the obstruction statute,

and there is no contention that her verbal interaction with the

officers was anything other than peaceful. As we have

explained:

Peaceful verbal criticism of an officer who is making

an arrest cannot be targeted under a general

obstruction of justice statute such as Virginia’s

without running afoul of the First Amendment: “The

Constitution does not allow such speech to be made a

crime. The freedom of individuals verbally to oppose

or challenge police action without thereby risking

arrest is one of the principal characteristics by

which we distinguish a free nation from a police

state.”

Wilson, 337 F.3d at 399 n.3 (quoting City of Houston v. Hill,

482 U.S. 451, 462–63 (1987)). We therefore reject any

contention that Graham’s arrest might have been justified by

non-violent criticism of the officers.

3.

Numerous decisions of the Virginia courts and this Court

provide guidance on the scope of Virginia Code § 18.2-460(A).

There are undoubtedly still gray areas at the statute’s

boundaries, meaning that officers enforcing it will at times

face close cases. This was not one of those cases. Given

Graham’s known conduct, it would have been clear to reasonable

officers in Appellees’ position that they lacked probable cause

to arrest Graham for obstruction of justice. We therefore

25

reverse the district court’s grant of summary judgment to Gagnon

and Clipp.

V.

Graham asks us to direct the district court to enter

summary judgment for her and to remand solely for a

determination of damages. Graham argues that if we find the

officers clearly violated her constitutional rights, there are

no remaining liability issues to try. The problem with this

argument is that we concluded the officers clearly violated her

rights when the disputed facts are viewed in the light most

favorable to her. Graham is entitled to summary judgment only

if the same conclusion obtains when viewing the facts in the

light most favorable to the arresting officers. Henry, 652 F.3d

at 531. The district court did not rule on the merits of

Graham’s motion. J.A. 468. Under the circumstances, it is

appropriate to remand the case for the district court to

consider her motion—under the correct legal standards explained

above—in the first instance.

VI.

Finally, we return to the officers’ oft-repeated argument

that “it was reasonable for them to rely on the magistrate’s

finding of probable cause and issuance of an arrest warrant.”

26

E.g., Appellees’ Br. 30-31. We have already explained why it

was unreasonable to do so here. But their argument also elides

the fact that the officers received guidance from another

magistrate. That magistrate, to whom Gagnon first applied,

denied the warrant application, J.A. 462, thus putting the

officers on notice that probable cause was lacking.

The district court observed that, unlike federal law,

“Virginia law does not require officers seeking arrest warrants

to do so by way of written declarations or sworn affidavits,”

J.A. 466 n.6 (citing Va. Code Ann. § 19.2-72), and that “[n]o

written record of the facts presented to the magistrates exists

here.” Id. Graham suggests that Gagnon was only able to obtain

a warrant from the second magistrate by misleading the

magistrate about the events of that night. The district court

correctly noted that the record does not contain any evidence of

false statements on Gagnon’s part. Of course, with no

requirement that warrant applications be recorded, how could it?

We have assumed that Gagnon fairly presented the facts to

both magistrates. If that was indeed the case, the second

warrant application would have been identical to the first, with

the exception that Gagnon could have also recounted the

additional fact of the storm door closing. As to the door

closing, this is how Clipp described it during her deposition:

27

Q. Did [Graham] attempt to force the door—to push your

foot with the door notwithstanding your having told her

that she needed to keep the door closed (sic)?

A. No. 8

. . . .

Q. Your foot was not injured by the door touching it,

was it?

A. No.

Q. No. Was the shoe scuffed?

A. No. I mean, I didn’t inspect it after that;

but . . . it wasn’t anything significant.

J.A. 240-41, 254.

Having been told by the initial magistrate that there was

no probable cause to arrest Graham, the officers must have

concluded the door-closing tipped the probable cause scales.

We find it hard to take this very seriously.

* * * * *

8The FCPD Chief had apparently been given a different

impression. At her deposition, Chief Gavin testified:

A. I – as far as [Graham’s] action[] was, as I

understood, was pushing the door back onto Officer

Clipp’s foot.

Q. Is that the screen door that closed on her foot?

A. I believe so.

J.A. 422.

28

For the reasons above, we reverse the district court’s

grant of summary judgment to Appellees and remand.

REVERSED AND REMANDED

29