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Frosh will appeal decision allowing protesters to sue arresting officer

Maryland Attorney General Brian E. Frosh successfully argued that not every criticism of a person holding a position of public trust addresses a matter of public concern. (The Daily Record/File Photo)

Maryland Attorney General Brian E. Frosh will appeal a judge’s ruling that protesters arrested near the State House three years ago can sue the arresting officer. (The Daily Record/File Photo)

Maryland Attorney General Brian E. Frosh will appeal a federal judge’s decision permitting gun rights advocates arrested during a peaceful protest near the State House three years ago to sue the arresting Maryland Capitol Police officer for allegedly violating their constitutional rights to speak freely and be free of unreasonable seizure.

In papers to be filed soon in a U.S. appeals court, Frosh will argue that Sgt. Brian T. Pope has “qualified immunity” from being sued because his controversial arrest of protesters Jeff and Kevin Hulbert was based on a reasonable and good faith belief that the brothers 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.

U.S. District Judge Stephanie A. Gallagher rejected that argument last month in allowing the Hulberts’ lawsuit to proceed. Gallagher said Pope’s order and subsequent arrest of the protesters was not entitled to qualified immunity based on pretrial pleadings because “the right to peacefully protest on the public sidewalk was clearly established at the time of the incident”

On Thursday, Frosh notified the federal district court in Baltimore of his intention to appeal Gallagher’s qualified immunity ruling to the 4th U.S. Circuit Court of Appeals.

Frosh previewed his coming arguments to the 4th Circuit in his failed request that Gallagher reconsider her decision denying Pope qualified immunity from suit.

Police officers, such as Pope, have qualified immunity if their alleged violation of a person’s constitutional rights was based “on a reasonable mistake as to the legality” of their actions, Frosh wrote in his motion for reconsideration.

Pope’s request that the Hulberts move from the sidewalk had nothing to do with their constitutionally protected right to speak but was based on the officer’s reasonable belief that they were interfering with the safe passage of pedestrians on the sidewalk.

An Anne Arundel County prosecutor subsequently charged the Hulberts with disobeying a lawful order though the charge was ultimately dropped.

“The facts of this arrest were sufficient to make several officers and at least one prosecutor believe that a criminal offense occurred,” Frosh wrote. “As a result, Sgt. Pope had probable cause to arrest and, even if he did make a mistake – either about the lawfulness of his order or the actual crime that was committed in his presence – then he made the kind of mistake for which officers are entitled to qualified immunity.”

The court-created doctrine of qualified immunity has come under sharp criticism from civil rights activists as enabling police officers to evade liability for their alleged use of excessive force based on the argument that they acted with a reasonable and good-faith belief that their actions were constitutional.

“The appeal in this case illustrates what is so unjust about qualified immunity,” the Hulberts’ attorney, Cary J. Hansel III, said Monday. “Qualified immunity puts a thumb on the scale (of justice) in favor of the government.”

The attorney general’s coming appeal is “frivolous” and “being done to slow the wheels of justice in this case” because Gallagher’s pretrial decision gives Pope the opportunity to convince a jury his arrest of the Hulberts was justified, Hansel said.

“The appeal is nothing but a delay tactic,” added Hansel, of Hansel Law PC in Baltimore. “This is a naked abuse of power to delay justice to victims of civil rights violations.”

The attorney general’s office declined to respond to Hansel’s criticism, citing 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.

The Hulbert brothers were founding members of Patriot Picket, a gun rights group that has regularly protested on Monday nights during Maryland General Assembly sessions. Jeff Hulbert died in early May after a lengthy battle with cancer.

Gallagher 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 Fourth 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’ Fourth 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.”

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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