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Gun rights activists can pursue claim against arresting officer, judge says

Kevin Hulbert signs two new criminal citations on Feb. 6 as his brother Jeff speaks to officers. The two men were arrested by Maryland Capitol Police during a peaceful Second Amendment Demonstration and charged with trespassing and disorderly conduct.  (The Daily Record / Bryan P. Sears)

Kevin Hulbert signs two new criminal citations on Feb. 6, 2018, as his brother Jeff speaks to officers. The two men were arrested by Maryland Capitol Police during a peaceful Second Amendment Demonstration and charged with trespassing and disorderly conduct. (The Daily Record / Bryan P. Sears)

Gun rights advocates arrested by a Maryland Capitol Police officer during a peaceful protest near the State House three years ago can pursue their lawsuit alleging their constitutional rights to speak freely and be free of unreasonable seizure were violated, a federal judge has ruled.

In sending the case toward trial, U.S. District Judge Stephanie A. Gallagher rejected Sgt. Brian T. Pope’s argument through counsel that his arrest of Jeff and Kevin Hulbert was legitimate as a matter of law because they had disobeyed his lawful order to move their protest for safety’s sake from a sidewalk to the adjacent Lawyers’ Mall, which is reserved for protests.

The litigation took a somber turn Monday when Jeff Hulbert died after a lengthy battle with cancer. He and his twin brother, Kevin, were founding members of Patriot Picket, a gun rights group that has regularly protested on Monday nights during Maryland General Assembly sessions.

Cary J. Hansel III, the Hulberts’ attorney, said Tuesday that the lawsuit is “a monument to him (Jeff) and his beliefs and the right that we all have to petition the government.”

The Maryland attorney general’s office, which is representing Pope, declined to comment due to the pending litigation.

Gallagher, in declining Pope’s bid for summary judgment, said that on Feb. 5, 2018, Jeff Hulbert was indisputably “engaged in constitutionally protected speech, by holding signs and talking to passersby and public officials, in a traditional public forum, the public sidewalk.”

Similarly, Kevin Hulbert was engaged in the constitutionally protected right of filming the police performing their duties in public, the judge wrote in a memorandum opinion last month.

Gallagher also stated the evidence showed that Pope’s arrest of the Hulberts was “content-neutral,” or unrelated to the views they were freely expressing under the First Amendment.

It will have to be determined at trial if the Hulberts’ presence on the sidewalk unduly impaired pedestrians or presented such a risk to public safety due to the proximity to a street as to warrant Pope’s demand that they move their otherwise constitutionally protected protest, Gallagher wrote.

“The court appreciates that the government’s burden is not particularly high in establishing that some safety concern was materially served in moving the demonstration a few feet off the sidewalk,” Gallagher added. “However, taking the evidence in the light most favorable to plaintiffs, there is a genuine issue of material fact as to whether any real, non-conjectural safety issue was aided by Sgt. Pope’s actions, or whether the police involvement caused the situation to become more disruptive and potentially hazardous.”

The Hulberts were arrested and cited at the Annapolis police station for disobeying a lawful order before being released after about an hour. The charge was dismissed on Feb. 9 and the brothers filed suit five days later, along with the gun rights group Maryland Shall Issue.

Gallagher said the Hulberts’ claimed violation of the 4th Amendment prohibition on unreasonable seizures will also go to trial as that allegation turns on whether Pope had a legal basis for telling the brothers to move from the sidewalk in the interest of public safety.

Pope has argued through counsel that the arrests did not violate the brothers’ 4th Amendment rights because he “had probable cause that they committed a criminal offense, violating his orders to move off the public sidewalk,” Gallagher wrote. “However, in Maryland,  where the order is neither reasonable nor lawful, the failure to obey a lawful order statute cannot serve as the basis for probable cause.”

Similarly, Gallagher rejected Pope’s argument that he has “qualified immunity” from being sued because his arrest of the brothers did not violate a right of theirs that was “clearly established” at that time.

To the contrary, “the right to peacefully protest on the public sidewalk was clearly established at the time of the incident,” Gallagher wrote.

The judge, however, granted Pope’s request that claims he used excessive force or acted maliciously be dropped.

“He (Pope) did not order the Hulberts to cease their demonstration, but asked them to move off the sidewalk, away from the street,” Gallagher wrote.

“Although a jury could find this decision was an overreach of his power that needlessly infringed on plaintiffs’ rights, there is no evidence that the decision was made without the exertion of any effort to avoid inflicting injury or (with) a thoughtless disregard of the consequences of moving the demonstrators approximately fifteen feet,” Gallagher added. “Similarly, Sgt. Pope only arrested the Hulberts after giving them multiple opportunities to comply with his orders and allowed the other members of their group to continue their activities inside Lawyers’ Mall.”

Hansel, the Hulberts’ attorney, said he did not name the Maryland Capitol Police as a defendant because of the state’s 11th Amendment sovereign immunity from being sued in federal court. Hansel is with Hansel Law PC in Baltimore.

The parties are slated to meet with Gallagher on June 11 to set up a trial schedule.

The case is docketed in the U.S. District Court in Baltimore as Jeff Hulbert et al. v. Sgt. Brian T. Pope et al., No. SAG-18-00461.

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