For an enhanced digital experience, read this story in the ezine.
In the case of Moore v. Gibson, 2022 U.S. Dist. LEXIS 60416 (E.D. Ark. 3/31/2022), Plaintiff Moore claimed Defendant Officer Gibson had engaged in “malicious prosecution and abuse of power” when Gibson issued Moore a citation for disorderly conduct and criminal trespass at a youth soccer game. In his complaint, Moore alleged Officer Gibson had violated his constitutional right under the Fourth Amendment to be free from search and seizure without probable cause. In addition, Moore alleged his arrest had violated his First Amendment right to free speech.
Soccer Game Dispute
On Saturday, March 24, 2018, Moore was attending and coaching his daughter’s recreational soccer team out of Conway, Arkansas, in a game against a recreational soccer team out of Vilonia, Arkansas, at the Vilonia soccer fields. Another Conway parent, Eric, was helping Moore coach.
Approximately five minutes into the game, the ball went out of bounds in front of the Conway team’s parents. There were two people refereeing the game: the head referee, Brandon Torling, and the line judge, who is usually a young kid, a teenager. The line judge called the ball for the Conway team. Moore and referee Torling were on the other side of the field from where the ball went out of bounds. Torling began making his way across the field in the direction of where the ball went out of bounds while calling the ball for the Vilonia team.
There was “mass confusion” because the line referee was saying that it was Conway’s ball and Torling was saying it was Vilonia’s ball. Some parents were yelling it was Conway’s ball; some parents were yelling it was Vilonia’s ball while the kids were just standing around confused.
According to Moore, Torling then went to where the Conway parents were screaming and yelled at the parents to “shut up” because he, Torling, was “the one running this game.” Torling then turned around and started back across the field to where Moore was located. Because there were kids in the area, Moore began to walk onto the field to meet Torling, so no one would hear their conversation, and Moore would not embarrass Torling in front of the kids.
According to Moore, Torling came to Moore and said, “You’re going to go over there and tell your parents to shut up.” Moore laughed and replied: “No. I know better. Look, let me tell you what’s going to happen here. I know you have a kid on the other team. You are going to go back out there, and you are going to call a non-biased game today because if you do not do that, I will report you at the end of the day. So, let’s play ball and have fun.”
Moore then turned around and started walking away. According to Moore, Torling then yelled at Moore again, saying, “Coach, are you not going to tell your parents to shut up?” to which Moore replied, “No, sir. They’ve done nothing wrong.”
Torling then told Moore that he was “out of the game.” Moore then walked back to the bench to pick up his cooler and tablet to leave. He then realized that the kids would need the cooler and that the assistant coach, Eric, would need the tablet, so he flipped open the cooler, grabbed a Gatorade, and started walking “in a direct line” to his car. The “direct line” to Moore’s car was across the middle of the field and went directly through the middle of where the Conway parents were congregated. When Moore got to the Conway parents, they stopped him, and conversation ensued regarding why Moore was leaving the game.
Torling then yelled to Moore, “Coach, you have to leave the entire complex.” At this point, Moore was still answering questions from the Conway parents, explaining that he had been kicked out of the game and had to leave. Torling then yelled at Moore, again, that he had to leave the complex.
Moore turned to start walking to his car with his back to Torling. Torling then yelled at Moore a third time, telling him he had to leave. As Moore walked away, he made a gesture at Torling, not even looking at him. Moore claims that this gesture was a “thumbs up.”
As Moore was walking out onto the road, he heard the whistle blow, and he turned his head back toward the field. Moore was told that Torling called the game because the assistant coach, Eric, told the Conway players, “Come on kids, I guess we’ve got to go play through this biased referee calling.”
Interaction With Police Officer
Officer Gibson, a patrol officer with the City of Vilonia Police Department (VPD), was flagged down by James Lathe Anderson, a Vilonia parent, who was at a soccer game at the Vilonia soccer complex. Anderson told Officer Gibson that there was an individual who had been causing a disturbance, had used obscene language, and was refusing to leave city property after being instructed to do so by park and recreation staff.
Moore did not dispute the actions taken by Anderson. Moore, however, maintained, throughout his interactions with Torling, he did not argue. On the contrary, Moore claimed he “was calm, did not cuss, did not scream or yell, and did not wave his hands.” Officer Gibson’s dashcam video began as he was speaking to Anderson. Anderson pointed Moore out as the individual causing the disturbance.
The parties disputed the exact nature of what occurred next. Officer Gibson maintained that he believed he saw Moore “flip off” people at the soccer game while “walking in the area of the parents, children and young soccer players.” Moore maintained that he gave a “thumbs up” and was past the parents and children when making that gesture.
Upon seeing Officer Gibson’s police car approach, Moore finally began to leave the soccer complex. It was Officer Gibson’s understanding that Moore had been told to leave by the official and the soccer director. As a result, Officer Gibson believed Moore had committed criminal trespass for not having left the soccer complex as soon as he was told to, having stopped in the process of leaving multiple times.
In addition to criminal trespass, Officer Gibson believed he had probable cause for Moore committing the offense of disorderly conduct because Moore, after being asked to leave, had decided to stop, turn, and continue arguing with the officials and flipped off the officials.
Prior to detaining Moore, Officer Gibson contacted Barbara McCrory, who Moore believed to be the athletic director of Vilonia. McCrory told Officer Gibson that Moore had been argumentative with parents and referees to the point that Moore was told by the referees and the soccer director to leave.
As a result, Officer Gibson issued Moore a citation for disorderly conduct and criminal trespass based upon Moore remaining on the property and being argumentative with officials and other parents, which caused the soccer game to be cancelled.
In the course of issuing Moore a citation for disorderly conduct and criminal trespass, dashcam video made it clear “at no time during this encounter was Moore handcuffed, put into Officer Gibson’s police cruiser, or transported anywhere.”
A bench trial occurred regarding Moore’s criminal charges, at which Moore testified, taking the stand as the last witness, being questioned by his own attorney first, and then by the prosecutor. The trial judge acquitted Moore of the charges in the criminal citation.
Section 1983 Qualified Immunity
Moore subsequently brought a Section 1983 federal civil rights lawsuit against Defendant Officer Gibson and City of Vilonia, Arkansas. In response, Officer Gibson filed a motion for summary judgment, which would effectively dismiss Moore’s lawsuit.
The federal district court would grant Officer Gibson’s motion for summary judgment “if the evidence, when viewed in the light most favorable to the nonmoving party [Moore], shows that there is no genuine issue of material fact to be decided at trial.” In other words, the pretrial record would have to contain sufficient evidence that would indicate potential Section 1983 liability.
As cited by the federal district court, Section 1983 provides a cause of action against any “person” who, acting “under color of” state law, deprives the plaintiff of “rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. In addition to municipalities, the court noted individual employees are suable “persons” as under Section 1983.
In this particular instance, Officer Gibson claimed he was entitled to the defense of qualified immunity under Section 1983 from any individual liability in this case. As described by the federal district court, the doctrine of qualified immunity “shields a government official from liability in a Section 1983 action unless the official’s conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.”
In determining whether qualified immunity was applicable to a given situation, the court would conduct the following “two-step inquiry”:
(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct.
Accordingly, the court had to determine whether Moore had alleged sufficient facts indicative of a violation of his Fourth Amendment rights at the time of his arrest by Officer Gibson.
As described by the court, a seizure within the meaning of the Fourth Amendment occurs when a police officer briefly stops and detains an individual based upon a reasonable suspicion that an individual is engaged, or about to be engaged, in criminal conduct. Further, in the event of an arrest, the court noted any such seizure, referred to as a “Terry Stop,” must be accompanied by “probable cause.” As defined by the court: “Probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that the arrestee has committed or was committing a crime”:
Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. The arresting officer himself need not possess all of the available information; probable cause is assessed by the collective knowledge of the relevant officers and available objective facts.
Moreover, the court acknowledged: “An officer is entitled to qualified immunity for a warrantless arrest if there is at least arguable probable cause”:
Arguable probable cause exists if the arrest was based on an objectively reasonable, even if mistaken, belief that the arrest was based in probable cause. Arguable probable cause provides law enforcement officers in a qualified immunity analysis an even wider berth for mistaken judgments than the probable cause standard affords a reasonable person.
Further, in deciding whether to arrest a subject, the court indicated officers may make an arrest if a credible eyewitness claims to have seen the suspect commit the crime. In addition, the court found an officer “faced with conflicting information that cannot be immediately resolved” may still have “arguable probable cause to arrest a suspect.”
According to the court, in considering qualified immunity, it was “not material” if the person arrested is ultimately found not guilty for the alleged crimes that prompted the arrest. On the contrary, the court acknowledged: “an officer need only demonstrate probable cause to carry out an arrest for any offense arising out of an incident.”
In determining the applicability of qualified immunity for Officer Gibson in this particular instance, the federal district court would, therefore, consider whether a reasonable suspicion and probable cause existed to arrest Moore for disorderly conduct and criminal trespass.
The federal district court described the misdemeanor of disorderly conduct under Arkansas criminal law as follows:
The statute requires only that a person engage in fighting or in violent, threatening, or tumultuous behavior with the purpose of creating a public inconvenience, annoyance, or alarm or that a person engages in such behavior in a way that recklessly creates a risk of public inconvenience, annoyance, or alarm.
In addition, under state law, the court found “a probable cause determination or conviction for disorderly conduct” would exist “where a person acts erratically or loudly under the circumstances or intends to disrupt a gathering.” On the other hand, probable cause for disorderly conduct would not exist under applicable state law, “where a person was making fleeting comments or acting non-threateningly.”
As cited by the federal district court, Arkansas law also provided that “a person commits criminal trespass if he or she purposely enters or remains unlawfully in or upon the premises owned or leased by another person.”
In this particular instance, Moore claimed he had not committed criminal trespass because “the soccer complex was open to the public.” While acknowledging a person may remain on premises open to the public, the court found the privilege or license to do so is lost when the individual “defies a lawful order not to remain, personally communicated to him by the owner of such premises or some other person authorized by the owner.”
Based on the undisputed evidence on the pretrial record, the federal district court found “Officer Gibson at the outset had reasonable suspicion to stop Moore for the suspected offenses of disorderly conduct and criminal trespass”:
It is undisputed that, at that time, Officer Gibson had been flagged down by parents attending the game who then told Officer Moore that there was an individual that had been causing a disturbance, had used obscene language, and was refusing to leave city property after being instructed to do so by parks and recreation staff; the parents pointed Moore out to Officer Gibson as that individual.
The federal district court, therefore, concluded: “at a minimum, Officer Gibson had arguable probable cause to arrest for the offenses of disorderly conduct and criminal trespass at the time Officer Gibson asked Moore to wait by and outside of Officer Gibson’s police cruiser.” Moreover, “given the information relayed to Officer Gibson by parents, and his distance from Moore,” in the opinion of the court, it was not unreasonable that Officer Gibson believed Moore had made an obscene “flipping the bird” gesture.
Prior to writing the criminal citation, in addition to a statement from Torling, Officer Gibson had also obtained a statement from Barbara McCrory, the athletic director of Vilonia, indicating all the clubs were made aware of “banners indicating zero tolerance of any abuse to referees,” which would include “refusal to follow directions given by [the] referee.”
Before issuing Moore the citation, Officer Gibson also spoke with Johnny Alexander, the director of parks and recreation for City of Vilonia, about Moore’s conduct. During the soccer games, Officer Gibson was told the referees and the director of the soccer program “have all the authority.”
Based on the undisputed evidence in the pretrial record, with all reasonable inferences construed in favor of Moore, the federal district court concluded: “Officer Gibson is entitled to qualified immunity and summary judgment in his favor on Moore’s Fourth Amendment claims.”
First Amendment Retaliation
Moore also brought a Section 1983 claim against Officer Gibson, alleging his arrest was in retaliation for his speaking out in violation of the First Amendment. As noted by the federal district court: “The law is settled that as a general matter, the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” To establish a First Amendment claim under Section 1983, the court would require a plaintiff to show the following:
(1) he engaged in a protected activity; (2) the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity; (3) the adverse action was motivated at least in part by the exercise of the protected activity; and (4) lack of probable cause or arguable probable cause.
Further, the court acknowledged, “retaliation need not have been the sole motive, but it must have been a ‘substantial factor’ in the decision to arrest.” The court also would require plaintiff to show “the retaliatory motive was a ‘but-for’ cause of the arrest”; i.e., Moore was “singled out because of his exercise of constitutional rights.” In other words, Officer Gibson would not have arrested Moore without a “retaliatory motive” for doing so.
Moore claimed, “Officer Gibson stopped and arrested him because Officer Gibson believed that Moore made an obscene gesture to Torling that Moore claims was protected speech.”
Without deciding whether Moore’s alleged obscene gesture directed toward Torling was protected symbolic First Amendment speech, the federal district court determined “no reasonable factfinder could conclude that Moore’s obscene gesture was the ‘but-for’ cause of Moore’s being stopped and arrested by Officer Gibson.” On the contrary, the court found Moore had failed to prove Officer Gibson had “lacked probable cause or arguable probable cause” for the arrest. As a result, the federal district court held Officer Gibson was entitled to summary judgment on Moore’s First Amendment retaliation claim.
Having found “reasonable suspicion and, at a minimum, arguable probable cause to support Officer Gibson’s stopping and arresting of Moore for at least one of the crimes” in the citation, the federal district court determined Moore had failed to establish that Officer Gibson violated Moore’s Fourth Amendment or First Amendment rights.
Accordingly, the court held “Officer Gibson is entitled to qualified immunity on Moore’s federal constitutional claims brought against him in his individual capacity under Section 1983.” The court, therefore, entered summary judgment dismissing Moore’s Section 1983 lawsuit.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation, and Tourism Management at George Mason University. Law Review articles archive (1982 to present).