noting that “[c]laims for declaratory and injunctive relief are not affected by qualified immunity”
How later courts described this case
- noting that “[c]laims for declaratory and injunctive relief are not affected by qualified immunity”
- noting that “[cjlaims for declaratory and injunctive relief are not affected by qualified immunity”
- “Claims for declaratory and injunctive relief are not affected by qualified immunity.”
Written by the judges who cited it.
The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVEN LEFEMINE, d/b/a Columbia
Christians for Life,
Plaintiff-Appellant,
v.
DAN WIDEMAN, individually and in
his official capacity; MIKE
FREDERICK, individually and in his No. 10-1905
official capacity; LONNIE SMITH,
individually and in his official
capacity; BRANDON STRICKLAND,
individually and in his official
capacity; TONY DAVIS, Sheriff, in
his official capacity,
Defendants-Appellees.
2 LEFEMINE v. WIDEMAN
STEVEN LEFEMINE, d/b/a Columbia
Christians for Life,
Plaintiff-Appellee,
v.
MIKE FREDERICK, individually and
in his official capacity,
Defendant-Appellant,
and No. 10-2014
DAN WIDEMAN, individually and in
his official capacity; LONNIE SMITH,
individually and in his official
capacity; BRANDON STRICKLAND,
individually and in his official
capacity; TONY DAVIS, Sheriff, in
his official capacity,
Defendants.
Appeals from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., Senior District Judge.
(8:08-cv-03638-HMH)
Argued: November 8, 2011
Decided: March 5, 2012
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opin-
ion, in which Judge Duncan and Judge Diaz joined.
LEFEMINE v. WIDEMAN 3
COUNSEL
ARGUED: Steven W. Fitschen, NATIONAL LEGAL
FOUNDATION, Virginia Beach, Virginia, for
Appellant/Cross-Appellee. Andrew Lindemann, DAVIDSON
& LINDEMANN, PA, Columbia, South Carolina, for
Appellees/Cross-Appellant. ON BRIEF: Douglas E. Myers,
NATIONAL LEGAL FOUNDATION, Virginia Beach, Vir-
ginia, for Appellant/Cross-Appellee. Robert D. Garfield,
DAVIDSON & LINDEMANN, PA, Columbia, South Caro-
lina, for Appellee/Cross-Appellant Mike Frederick. Russell
W. Harter, Jr., CHAPMAN, HARTER & GROVES, P.A.,
Greenville, South Carolina, for Appellees Wideman, Smith,
Strickland, and Davis.
OPINION
WYNN, Circuit Judge:
In November 2005, Steven C. Lefemine and members of
Columbia Christians for Life ("Plaintiff"), a South Carolina
anti-abortion organization, were asked by employees of the
Greenwood County Sheriff’s Department ("Defendants") to
remove large, graphic signs depicting aborted fetuses that
they were using as part of a roadside demonstration. As the
sole proprietor of Columbia Christians for Life, Lefemine
subsequently brought an action under 18 U.S.C. § 1983
against Defendants in their individual and official capacities,
alleging violations of his and Columbia Christians for Life
members’ First Amendment rights. The complaint sought
injunctive and declaratory relief, damages, and attorney’s fees
under 18 U.S.C. § 1988.
Concluding that Defendants had violated Plaintiff’s First
Amendment rights, the district court entered summary judg-
ment in favor of Plaintiff on those claims. Nonetheless, the
4 LEFEMINE v. WIDEMAN
district court held that Defendants were entitled to qualified
immunity from suit in their individual capacities because the
specific rights at issue were not clearly established at the time
of the violations. In addition, the district court denied Plain-
tiff’s request for attorney’s fees but granted Plaintiff injunc-
tive relief.
Plaintiff and Defendants cross-appeal different portions of
the district court’s opinion and order. For the reasons that fol-
low, we affirm.
I.
The basic facts underlying this cause of action are not in
dispute. Plaintiff is an organization that "actively seeks to
raise public awareness of the horrors of abortion throughout
the State of South Carolina." J.A. 19.1 Pursuant to this mis-
sion, Plaintiff’s members regularly "preach and carry signs
critical of abortion in many public fora throughout the State
of South Carolina," signs which Plaintiff explains "depict
aborted babies in order to shock the consciences of those who
see the signs to the horror of abortion." J.A. 19.
On November 3, 2005, as part of its "Show the Truth Tour"
around South Carolina, about twenty of Plaintiff’s members
stopped in Greenwood County and "began to establish a
Christian pro-life witness on the public sidewalks at the inter-
section of Montague Street and U.S. 25/S.C. 72 Bypass,"
which is the "busiest intersection" in Greenwood County. J.A.
19-20, 65. They began preaching, distributing anti-abortion
literature, and carrying large anti-abortion signs, including
several with color photographs of aborted and mutilated
fetuses, later described as "graphic" by Plaintiff in its own
complaint.
1
Pagination for citations to the record refer to the joint appendix
("J.A.").
LEFEMINE v. WIDEMAN 5
Shortly after the start of Plaintiff’s demonstration, Major
Lonnie Smith of the Greenwood County Sheriff’s Office, an
individually named defendant in this lawsuit, received a
phone call from Lieutenant Randy Miles, notifying him of
complaints that had been received from motorists driving by
the intersection. In a later deposition, Major Smith stated that
he was informed that protesters were in the roadway with the
signs, and that one mother had called to say that her five-year-
old son was "screaming, crying" after seeing the signs. J.A.
360. Major Smith and Deputy Brandon Strickland, another
named defendant, proceeded to the intersection to investigate
further.
In the meantime, Lieutenant Miles approached Lefemine to
tell him about the "complaints about the graphic photographs
and this was causing a disturbance in the traffic flow at th[e]
intersections." J.A. 360. Major Smith observed the individuals
holding signs and megaphones, and Deputy Strickland took
several pictures of the scene. Major Smith called Chief Dep-
uty Mike Frederick, also a named defendant, to report the
events to him. Chief Deputy Frederick directed him to tell
Plaintiff’s members that because of the complaints about the
graphic pictures, "they could continue to protest but they
would either have to put away or take down the signs or . . .
possibly be ticketed for breach of peace." J.A. 361. The tran-
script of the ensuing conversation between Major Smith and
Lefemine, as quoted in the district court’s opinion and order,
indicates that Major Smith mentioned only the complaints
about the graphic nature of the photographs and not any traf-
fic or safety concerns when he spoke to Lefemine.
Lefemine responded that the Sheriff’s Office was violating
Plaintiff’s First Amendment rights, to which Major Smith
replied, "You do not have a right to be offensive to other peo-
ple in that manner," though he also maintained that Plaintiff’s
members only needed to take the signs down but could remain
on the sidewalk. J.A. 362. Following the conversation, Plain-
6 LEFEMINE v. WIDEMAN
tiff’s members packed up their signs and left shortly thereaf-
ter.
A year later, an attorney for Plaintiff sent a letter to Sheriff
Dan Wideman, also a named defendant, informing him that
Plaintiff’s members intended to return to Greenwood County
"in the near future to exercise their First Amendment free-
doms by highlighting the national tragedy of abortion." J.A.
362. The letter included a warning that "any further interfer-
ence with Columbia Christians for Life’s message" by the
Greenwood County Sheriff’s Office would "leave [Plaintiff]
no choice but to pursue all available legal remedies."2 J.A.
362. Chief Deputy Frederick answered that the Department’s
actions in 2005 were based on Plaintiff’s methodology, not its
content, and "should we observe any protester or demonstra-
tor committing the same act, we will again conduct ourselves
in exactly the same manner: order the person(s) to stop or face
criminal sanctions." J.A. 363. Subsequent demonstrations by
Plaintiff on the city side of the intersection in 2006 and 2007
occurred without incident.
On October 31, 2008, Plaintiff filed a complaint against
Wideman, Frederick, Smith, and Strickland, alleging viola-
tions of his First Amendment rights. Plaintiff amended the
complaint on February 27, 2009, to include Sheriff Tony
Davis, who had been elected to replace Wideman, as a defen-
dant. Following cross-motions for summary judgment, as well
as motions in opposition from all parties, the district court
held a hearing on June 23, 2010.
On July 8, 2010, the district court entered an opinion and
order finding that Defendants had infringed on Plaintiff’s First
Amendment rights to free speech, peaceable assembly, and
free exercise of religion, but were entitled to qualified immu-
2
A similar letter was sent to the Chief of the City of Greenwood Police
Department, who responded that Plaintiff was welcome to visit and pro-
test.
LEFEMINE v. WIDEMAN 7
nity for their actions. The district court declined to award
Plaintiff attorney’s fees but did enjoin Defendants "from
engaging in content-based restrictions on Plaintiff’s display of
graphic signs without narrowly tailoring its restriction to serve
a compelling state interest." J.A. 378.
II.
Although the parties have filed cross-appeals, no one chal-
lenges the fundamental conclusion that Defendants’ actions
were an impermissible content-based restriction on Plaintiff’s
First Amendments rights. Accordingly, for purposes of this
appeal, we accept—as we must—the premise that Defen-
dants’ actions were an impermissible content-based restriction
on Plaintiff’s First Amendments rights. See generally
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999) (citing Fed. R. App. P. 28(a)(9)(A) and noting that
issues not briefed or argued on appeal are deemed aban-
doned). However, in so doing, we pass no judgment on
whether the district court was correct in its determination.
On appeal, Plaintiff contends that the district court (1) erred
in granting Defendants qualified immunity; (2) abused its dis-
cretion by failing to rule on Plaintiff’s request for declaratory
relief; and (3) abused its discretion by failing to award Plain-
tiff attorney’s fees. Defendants assert only that the district
court erred in awarding prospective injunctive relief against
Frederick, who is no longer employed by the Greenwood
County Sheriff’s Office. We address each of these issues in
turn.
A.
First, Plaintiff argues that the district court erred by grant-
ing Defendants qualified immunity, asserting that they vio-
lated a clearly established right, and reasonable officers
should have known that their actions violated that right. We
review de novo the district court’s rulings on the parties’
8 LEFEMINE v. WIDEMAN
respective motions for summary judgment on grounds of
qualified immunity. Pritchett v. Alford, 973 F.2d 307, 313
(4th Cir. 1992).
The doctrine of qualified immunity "protects government
officials from liability for civil damages insofar as their con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known." Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks and citation omitted); see also Sau-
cier v. Katz, 533 U.S. 194, 202 (2001) ("The relevant, disposi-
tive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he con-
fronted."), overruled in part on other grounds by Pearson,
555 U.S. at 236.
Further guiding our analysis, the Supreme Court has stated:
Qualified immunity balances two important inter-
ests—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.
The protection of qualified immunity applies regard-
less of whether the government official’s error is a
mistake of law, a mistake of fact, or a mistake based
on mixed questions of law and fact.
Pearson, 555 U.S. at 231 (internal quotation marks and cita-
tion omitted). Thus, a defense of qualified immunity "protects
‘all but the plainly incompetent or those who knowingly vio-
late the law.’" Waterman v. Batton, 393 F.3d 471, 476 (4th
Cir. 2005) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)); Pearson, 555 U.S. at 244 ("The principles of quali-
fied immunity shield an officer from personal liability when
an officer reasonably believes that his or her conduct com-
plies with the law.").
LEFEMINE v. WIDEMAN 9
When determining if a right is clearly established at the
time of the alleged infringement, we are faced first with the
critical determination of the nature itself of the right at issue.
To characterize the right too broadly would upset the delicate
balance "between the interests in vindication of citizens’ con-
stitutional rights and in public officials’ effective performance
of their duties by making it impossible for officials reasonably
to anticipate when their conduct may give rise to liability for
damages." Anderson v. Creighton, 483 U.S. 635, 639 (1987)
(internal quotation marks, alteration, and citation omitted).
Accordingly, we must "define the right in light of the spe-
cific context of the case, not as a broad general proposition
. . . . that is, [whether it was] clear to a reasonable officer that
the conduct in which he allegedly engaged was unlawful in
the situation he confronted." McKinney v. Richland Cnty.
Sheriff’s Dep’t, 431 F.3d 415, 417 (4th Cir. 2005) (internal
quotation marks and citation omitted); Jackson v. Long, 102
F.3d 722, 728 (4th Cir. 1996) ("To determine whether a fed-
eral right was clearly established at the time of the defen-
dants’ alleged conduct, we focus not upon the right at its most
general or abstract level, but at the level of its application to
the specific conduct being challenged." (internal quotation
marks and citation omitted)).
We note as well that we have long held that it is case law
from this Circuit and the Supreme Court that provide notice
of whether a right is clearly established:
In determining whether a right was clearly estab-
lished at the time of the claimed violation, courts in
this circuit ordinarily need not look beyond the deci-
sions of the Supreme Court, this court of appeals,
and the highest court of the state in which the case
arose. . . . If a right is recognized in some other cir-
cuit, but not in this one, an official will ordinarily
retain the immunity defense.
10 LEFEMINE v. WIDEMAN
Edwards, 178 F.3d at 251 (internal quotation marks, alter-
ations, and citation omitted).
Turning to the situation faced by Defendants in this case,
contrary to Plaintiff’s assertion that the right at issue here
should be framed as whether it was clearly established that
law enforcement is barred from giving vent to a heckler’s veto,3
such a broad construction would unquestionably run afoul of
the interest-balancing inherent in qualified immunity analysis.4
Rather, we agree with Defendants—and the district
court—that the issue here is properly framed as whether, at
3
This Court has described the "heckler’s veto" as "[h]istorically, one of
the most persistent and insidious threats to first amendment rights," and
defined it as "the successful importuning of government to curtail ‘offen-
sive’ speech at peril of suffering disruptions of public order." Berger v.
Battaglia, 779 F.2d 992, 1001 (4th Cir. 1985); see also Forsyth Cnty., Ga.
v. Nationalist Movement, 505 U.S. 123, 134 (1992) ("Listeners’ reaction
to speech is not a content-neutral basis for regulation."). "Government’s
instinctive and understandable impulse to buy its peace—to avoid all risks
of public disorder by chilling speech assertedly or demonstrably offensive
to some elements of the public—is a recurring theme in first amendment
litigation." Berger, 779 F.2d at 1001.
4
Were we to define the right at stake in this case as Plaintiff urges, we
would potentially hamstring law enforcement officials in the proper and
legitimate exercise of their power to enforce public safety, including when
those efforts may be narrowly tailored in recognition that content-based
restrictions on speech will be strictly scrutinized. See, e.g., Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (reciting
the standard of review for content-based restrictions on speech).
Put another way, while true that there is a clearly established right to
be free from prohibitions, restrictions and burdens on expression based
solely on the heckler’s veto, we must also be cognizant that "[t]he rights
of free speech and assembly, while fundamental in our democratic society,
still do not mean that everyone with opinions or beliefs to express may
address a group at any public place and at any time." Cox v. Lousiana, 379
U.S. 536, 554 (1965). Rather, governmental entities retain the right to reg-
ulate the use of public streets to protect legitimate government interests in
maintaining public order and avoiding violence, id. at 554-55, though in
the case of content-based restrictions, such regulation must be narrowly
drawn to serve compelling government interests, Perry, 460 U.S. at 45.
LEFEMINE v. WIDEMAN 11
the time of Plaintiff’s 2005 anti-abortion demonstration in
Greenwood County, it was clearly established that law
enforcement officers could not proscribe the display of large,
graphic photographs in a traditional public forum.5 We find
that it was not.
In November 2005, the case law from this Court and the
Supreme Court was ambiguous concerning whether asking
demonstrators to remove such signs would be an impermissi-
ble infringement of their First Amendment rights. For exam-
ple, there was no clear holding concerning whether such
restrictions might be deemed content-based or content-
neutral, a sometimes difficult and thorny question. See Turner
Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994) ("Deciding
whether a particular regulation is content based or content
neutral is not always a simple task."); see also Ovadal v. City
of Madison, Wis., 469 F.3d 625, 630 (7th Cir. 2006) (noting
the fine distinction between a restriction to alleviate traffic
concerns that is content-neutral if due to the distracting pres-
ence of protesters with such signs, but content-based if the
message was what angered and distracted drivers).6
Indeed, as of November 2005, the Supreme Court had
issued at least one opinion concerning anti-abortion protests
suggesting that certain restrictions, even if made in response
to the graphic and offensive nature of images to the viewer,
might still be deemed content-neutral:
5
In this case, no party challenges the district court’s determination that
Plaintiff’s First Amendment rights were violated by Defendants’ conduct.
As such, we assume without deciding that the district court’s holding on
that question is correct.
6
As noted above, because this issue is not before us on appeal, it
remains today an open question in this Circuit. However, it is also persua-
sive, though not controlling, that by 2005, at least two other circuit courts
had found similar restrictions on large, graphic signs in heavily trafficked
areas to be content-neutral, not content-based. See Frye v. Kansas City
Mo. Police Dep’t, 375 F.3d 785, 791-92 (8th Cir. 2004); Foti v. City of
Menlo Park, 146 F.3d 629, 641 (9th Cir. 1998).
12 LEFEMINE v. WIDEMAN
The right to free speech, of course, includes the
right to attempt to persuade others to change their
views, and may not be curtailed simply because the
speaker’s message may be offensive to his audience.
But the protection afforded to offensive messages
does not always embrace offensive speech that is so
intrusive that the unwilling audience cannot avoid it.
Indeed, it may not be the content of the speech, as
much as the deliberate verbal or visual assault, that
justifies proscription. Even in a public forum, one of
the reasons we tolerate a protester’s right to wear a
jacket expressing his opposition to government pol-
icy in vulgar language is because offended viewers
can effectively avoid further bombardment of their
sensibilities simply by averting their eyes.
Hill v. Colorado, 530 U.S. 703, 716 (2000) (emphasis added)
(internal quotation marks and citations omitted); see also
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("A
regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others. Govern-
ment regulation of expressive activity is content neutral so
long as it is justified without reference to the content of the
regulated speech." (internal citations and quotations marks
omitted)).
Additionally, even if Defendants should have been aware
that they were engaging in content-based restrictions, subject
to strict scrutiny, at that point in time, this Court had indicated
in at least one anti-abortion protest case that "the State may
act to protect its substantial and legitimate interest in traffic
safety." Lytle v. Doyle, 326 F.3d 463, 470 (4th Cir. 2003); see
also Hill, 530 U.S. at 715 ("It is a traditional exercise of the
States’ police powers to protect the health and safety of their
citizens." (internal quotation marks and citation omitted)).
Likewise, the Supreme Court has repeatedly "recognized
that there is a compelling interest in protecting the physical
LEFEMINE v. WIDEMAN 13
and psychological well-being of minors," including from cer-
tain types of speech that may not be inappropriate for adults.
Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126
(1989). Further, the Supreme Court has "regularly rejected the
assertion that people who wish to propagandize protests or
views have a constitutional right to do so whenever and how-
ever and wherever they please." United States v. Grace, 461
U.S. 171, 177-78 (1983) (internal quotation marks and cita-
tion omitted).
Given this state of the law in 2005, it was not objectively
unreasonable for Defendants to believe they could allow
Plaintiff to continue its protest, but nevertheless remove the
graphic signs in order to protect the public from potential traf-
fic hazards based on the signs’ proximity to the road and to
prevent children from seeing the images. The record reflects
that Major Smith approached Lefemine after Chief Deputy
Frederick directed him to tell Plaintiff’s members that "they
could continue to protest but that they would either have to
put away or take down the signs" because of the complaints.
J.A. 361.
According to Chief Deputy Frederick’s deposition, his
instructions were "strictly based" on what he heard from
Major Smith and Lieutenant Miles, and "[t]he message was an
afterthought. The content was an afterthought." J.A. 91. He
maintained that he based his decision on his belief that "the
significant interest in the safety of these motorists who hap-
pened by the protest clearly outweighed the very minor bur-
den to [Columbia Christians for Life’s] free speech rights
when we ordered them to stop presenting the incredibly
graphic signs to the roadway." J.A. 90. In particular, he
recalled that he was concerned by "the combination of [the
signs’] graphic nature and their proximity to the roadway,"
J.A. 77, and referred to "their right to stand six inches from
the roadway and conduct themselves as they were," J.A. 290.
We cannot say from these statements that Defendants were
either "plainly incompetent" or "knowingly violat[ing] the
14 LEFEMINE v. WIDEMAN
law," Waterman, 393 F.3d at 476, such that they should be
denied qualified immunity for what the district court ulti-
mately determined to be a mistaken judgment. Defendants
believed they were acting in a content-neutral manner to safe-
guard legitimate, compelling government interests. We will
not find such "[o]fficials . . . liable for bad guesses in gray
areas; they are liable for transgressing bright lines." Maciar-
iello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992).
For the foregoing reasons, we affirm the district court’s
grant of summary judgment on grounds of qualified immunity
to Defendants in their individual capacities.
B.
Next, Plaintiff argues that the district court abused its dis-
cretion by failing to rule on its request for declaratory relief.
See Wilton v. Seven Falls Co., 515 U.S. 277, 289-90 (1995)
(stating that the decision to rule on an action for declaratory
relief will be reviewed for an abuse of discretion); United
Capitol Ins. Co. v. Kapiloff, 155 F.3d 488, 493 (4th Cir. 1998)
(same). However, as we read the district court’s order and
opinion, Plaintiff was indeed awarded summary judgment on
its request for a declaratory judgment that Defendants’ actions
were an unconstitutional infringement on its First Amendment
rights.
Plaintiff’s motion for summary judgment specifically
requested the following: (1) a judgment and decree declaring
that Defendants’ actions were an unconstitutional infringe-
ment of Plaintiff’s First Amendment rights; (2) "a permanent
injunction enjoining the Sheriff from applying their unconsti-
tutional policy prohibiting [Columbia Christians for Life]
from displaying pro-life signs in the public fora of Green-
wood County"; (3) nominal damages; and (4) costs and attor-
ney’s fees.
In turn, the district court’s order states that Defendants’
motions for summary judgment are granted in part and denied
LEFEMINE v. WIDEMAN 15
in part; Plaintiff’s motion for summary judgment is also
granted in part and denied in part; Plaintiff’s request for attor-
ney’s fees is denied; and Defendants are "enjoined from
engaging in content-based restrictions on Plaintiff’s display of
graphic signs without narrowly tailoring its restriction to serve
a compelling state interest." J.A. 378.
Reconciling these two documents with the specific hold-
ings on each issue in the district court’s opinion, it is clear
that the reference to granting summary judgment in part to
Plaintiff must necessarily refer to Plaintiff’s request for a
declaratory judgment that its First Amendment rights were
infringed. The injunction issued by the district court did not
follow the language employed by Plaintiff in its motion for
summary judgment, while the opinion and order concludes
that Plaintiff’s First Amendment rights were violated by
Defendants’ actions.
Further, we can discern no abuse of discretion in the district
court’s decision not to make the declaratory judgment more
explicit, as Plaintiff unmistakably achieved judicial recogni-
tion that its constitutional rights had been violated. A remand
for an additional judgment to that effect seems unnecessarily
duplicative and wasteful of judicial resources, as well as
improper in light of the district court’s discretion to rule on
such a request.
C.
Finally, Plaintiff argues that the district court abused its dis-
cretion by failing to award it attorney’s fees. Plaintiff main-
tains that it was the prevailing party in this § 1983 action and
that as such it should "ordinarily recover attorney’s fees
unless special circumstances would render such an award
unjust." People Helpers Found., Inc. v. City of Richmond, Va.,
12 F.3d 1321, 1327 (4th Cir. 1993).
We review the district court’s decision regarding the award
of attorney’s fees for an abuse of discretion. See 42 U.S.C.
16 LEFEMINE v. WIDEMAN
§ 1988(b) (2009) (providing that in an action brought under
§ 1983, "the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee
as part of the costs"); People for Ethical Treatment of Animals
v. Doughney, 263 F.3d 359, 370 (4th Cir. 2001). "A trial court
abuses its discretion only if its conclusions are based on mis-
taken legal principles or clearly erroneous factual findings."
Id. (citation omitted).
The Supreme Court has held that generally "plaintiffs may
be considered ‘prevailing parties’ for attorney’s fees purposes
if they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing the
suit." Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 789 (1989) (internal quotation marks and cita-
tion omitted). "[A]t a minimum, to be considered a prevailing
party within the meaning of § 1988, the plaintiff must be able
to point to a resolution of the dispute which changes the legal
relationship between itself and the defendant." Id. at 792 (cita-
tions omitted); see also People Helpers, 12 F.3d at 1327-29
(citing and applying this language). "Beyond this absolute
limitation, a technical victory may be so insignificant . . . as
to be insufficient to support prevailing party status." Tex.
State Teachers, 489 U.S. at 792.
In at least one case, the Supreme Court has found that a
judicial determination that a plaintiff’s civil rights had been
violated, without more, was insufficient to render the plaintiff
a "prevailing party" and thereby entitle him to an award of
attorney’s fees. Hewitt v. Helms, 482 U.S. 755, 763 (1987);
see also People Helpers, 12 F.3d at 1327-29 (vacating an
award for attorney’s fees because the injunctive relief won by
the plaintiff, which prohibited unlawful, but not legitimate,
conduct by the defendant, "has not altered the relative posi-
tions of the parties").
Similarly, in this case, Plaintiff was awarded injunctive
relief against Defendants, prohibiting them from "engaging in
LEFEMINE v. WIDEMAN 17
content-based restrictions on Plaintiff’s display of graphic
signs without narrowly tailoring its restriction to serve a com-
pelling state interest." J.A. 378. Put simply, the district court
ordered Defendants to comply with the law and safeguard
Plaintiff’s constitutional rights in the future. No other dam-
ages were awarded.
The sole statement in the district court’s opinion and order
regarding attorney’s fees reads as follows: "Under the totality
of the facts in this case the award of attorney’s fees is not
warranted." J.A. 378. Although perhaps somewhat conclu-
sory, when read in the context of the order as a whole, we do
not find that the district court’s "conclusions are based on
mistaken legal principles or clearly erroneous factual find-
ings." Doughney, 263 F.3d at 370. Rather, in light of the lack
of findings that Plaintiff was a prevailing party within the
meaning of § 1988 as well as the absence of any other dam-
ages award, this ruling is consistent with the conclusion that
the outcome of this litigation "has not altered the relative
positions of the parties." People Helpers, 12 F.3d at 1329.
Accordingly, we see no abuse of discretion in this ruling
and thus affirm the district court’s denial of attorney’s fees to
Plaintiff.
D.
Defendants’ sole issue on cross-appeal is that the district
court erred in granting injunctive relief against Chief Deputy
Frederick, who is no longer employed by the Greenwood
County Sheriff’s Office. In addition, according to Defendants,
the award of injunctive relief against each of them in their
individual capacities "should be considered dismissed as a
duplicative claim," and injunctive relief against them in their
official capacities "should be deemed dismissed under the law
of the case."
At the outset, we note that despite Defendants’ use of the
term "erred," we review the district court’s decision to grant
18 LEFEMINE v. WIDEMAN
or deny injunctive relief for an abuse of discretion. US Airline
Pilots Ass’n v. Awappa, LLC, 615 F.3d 312, 320 (4th Cir.
2010).
As previously stated, the decretal portion of the district
court’s opinion and order provides that "Defendants are
enjoined from engaging in content-based restrictions on Plain-
tiff’s display of graphic signs without narrowly tailoring its
restriction to serve a compelling state interest." J.A. 378. The
district court did not specify if "Defendants" referred to each
person in his individual or official capacity. However, the sec-
tion discussing Plaintiff’s claims against Defendants in their
official capacities states that those claims "are merely claims
against the Greenwood County Sheriff’s Office," but because
Plaintiff failed to make a showing that the Office itself had a
policy or custom to violate a citizen’s First Amendment
rights, "Defendants are immune from suit in their official
capacity." J.A. 377.
The district court appears to have been analyzing whether
Defendants might be liable for damages, not whether they
could be subject to an injunction in either their official or
individual capacities. Claims for declaratory and injunctive
relief are not affected by qualified immunity. Roller v. Cava-
naugh, 984 F.2d 120, 122 (4th Cir. 1993), overruled in part
on other grounds by Ca. Dep’t of Corr. v. Morales, 514 U.S.
499 (1995); see also Pearson, 555 U.S. at 242 (noting that
defense of qualified immunity is not available in "§ 1983
cases against individuals where injunctive relief is sought
instead of or in addition to damages"). Likewise, under the
doctrine of Ex Parte Young, 209 U.S. 123 (1908), injunctive
relief against a state officer in his official capacity may be
appropriate if "the complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospec-
tive." Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535
U.S. 635, 645 (2002) (internal quotation marks and citation
omitted).
LEFEMINE v. WIDEMAN 19
Although Defendants contend that the termination of Fred-
erick’s employment with the Greenwood County Sheriff’s
Office means there is no "cognizable danger of recurrent vio-
lation," United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953), he is nonetheless still a police officer, albeit elsewhere
in South Carolina. As such, the danger remains.
We see no abuse of discretion in the district court’s deci-
sion to order Defendants to safeguard Plaintiff’s First Amend-
ment rights and refrain from impermissible content-based
restrictions in the future. We affirm this portion of the district
court’s opinion and order.
III.
In sum, we affirm the district court’s grant of summary
judgment to Defendants on grounds of qualified immunity,
the denial of an award of attorney’s fees to Plaintiff, and the
grant of injunctive relief to Plaintiff against Defendants.
AFFIRMED