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Judge will not reconsider ruling to let gun rights activists sue arresting officer

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)

A federal judge will not reconsider her 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.

Citing the state’s lack of diligence, U.S. District Judge Stephanie A. Gallagher rejected Maryland’s bid for reconsideration based on what it called newly recovered video evidence that protesters had blocked roadway traffic, creating a public safety threat that justified the officer’s order that the protest be moved from the sidewalk to the adjacent Lawyer’s Mall in Annapolis. Sgt. Brian Pope subsequently arrested twin brothers Jeff and Kevin Hulbert for disobeying what the state contends was a lawful order.

Gallagher, in denying the reconsideration motion, said the state could have but essentially chose not to produce the video before she decided the case could go toward trial.

“Sgt. Pope’s reliance on technical difficulties … does not carry the day,” Gallagher wrote in a memorandum opinion this month. “Simply put, if Sgt. Pope used reasonable diligence to convert the evidence into an acceptable format, such that it could be considered with his motion for reconsideration, the same reasonable diligence could have been exercised to ensure timely submission of the evidence with his motion for summary judgment.”

Gallagher’s denial of reconsideration clears the way for the 4th U.S. Circuit Court of Appeals to hear Maryland’s contention that Pope has “qualified immunity” from being sued because he acted in reasonable belief that the arrest was necessary for public safety. The compelling need for safety trumps the protesters’ claim that the officer had violated their First and Fourth Amendment rights, the state added in its pending appeal.

The 4th Circuit had held the state’s appeal in abeyance pending Gallagher’s resolution of the motion for reconsideration.

In denying the motion, Gallagher said the state cannot seek reconsideration in order to correct its earlier decision to essentially forgo introducing video surveillance it believed was not critical to its argument that Pope acted in good faith. The judge noted the state had submitted other video coverage of the event that she said depicted protesters properly using crosswalks.

“Defendants’ presentation of (the other) evidence reflects that they possessed the technical capacity to submit video evidence, and chose to highlight certain pieces of video evidence to the exclusion of others,” Gallagher wrote.

“The defendants inevitably made strategic choices regarding their presentation of evidence in support of their motion for summary judgment,” Gallagher added. “Sgt. Pope’s subsequent reassessment of these strategies, following an adverse decision, does not justify reconsideration by this court.”

The Hulberts were founding members of Patriot Picket, a gun rights group that has regularly protested on Monday nights during Maryland General Assembly sessions.

The brothers were arrested at the Feb. 5, 2018 protest 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.

The state moved for summary judgment, citing Pope’s qualified immunity based on his good faith belief he was acting reasonably to protect public safety.

Gallagher, in permitting the case to go toward trial, said 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 in April.

Though denying the state’s motion for summary judgment, Gallagher said 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.

Gallagher stated 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.

The judge rejected the state’s argument that Pope 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, prompting the state’s pending appeal to the 4th Circuit.

Jeff Hulbert died in May after a lengthy battle with cancer. His estate is now Kevin Hulbert’s co-plaintiff.

The plaintiffs are represented by Cary J. Hansel III, of Hansel Law PC in Baltimore.

The case is docketed in the 4th Circuit as Kevin Hulbert et al. v. Brian Pope et al., No. 21-1608.