Case 8:12-cv-03592-JFM Document 1 Filed 12/07/12 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION, GREENBELT OFFICE

MANNIE GARCIA, v.

Plaintiff,

MONTGOMERY COUNTY, MARYLAND, Serve: County Executive Isaiah Leggett Executive Office Building 101 Monroe Street, 2nd Floor Rockville, Maryland 20850

CHIEF OF POLICE THOMAS MANGER Montgomery County Police Department (in his official capacity) 2350 Research Blvd. Rockville, Maryland 20850

OFFICER CHRISTOPHER MALOUF, Officer ID#2024 Montgomery County Police Department (in his official and individual capacities) 2300 Randolph Road Wheaton, Maryland 20902

OFFICER KEVIN BAXTER, Officer ID#2467 Montgomery County Police Department (in his official and individual capacities) 2300 Randolph Road Wheaton, Maryland 20902

OFFICER MICHAEL GRAVES, Officer ID#2578 Montgomery County Police Department (in his official capacity) 2300 Randolph Road Wheaton, Maryland 20902

LIEUTENANT MARK SHEELOR, Officer ID#_ _ Montgomery County Police Department (in his official and individual capacities) 2300 Randolph Road Wheaton, Maryland 20902
Defendants.

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) JURY TRIAL DEMANDED

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INTRODUCTION 1. The First Amendment's protections for freedom of speech and of the press give citizens the right to take still or moving photographs of public officials performing their duties in public settings. This well-established legal principle has long been enshrined in police department policies across the country - including those of Montgomery County - but that fact has not prevented the police from treating photography as a crime in a growing number of highprofile incidents. Whether this is caused by some latent hostility to the press or from aversion to the embarrassment of appearing on YouTube, police officers increasingly react harshly to the presence of cameras. Credentialed journalists covering public events, such as Occupy Wall Street, have been subjected to arrest, detention, and physical mistreatment simply for practicing their profession. Likewise, private citizens, who enjoy the same degree of First Amendment protection as reporters, have been harassed and arrested for taking photographs of police officers in public places. 2. As a consequence, courts have been forced to remind the police that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment." Glik v. Cuniffe, 655 F.3d 78, 85 (1st Cir. 2011). "Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'" !d. at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). 3. The United States Department of Justice has reinforced this message by filing a "Statement of Interest" in a recent case as part of its responsibility to enforce federal civil rights statutes that prohibit state and local law enforcement agencies from engaging in conduct that deprives persons of their rights under the Constitution and laws of the United States. It explained
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that "[t]he right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution," they "are consistent with our fundamental notions of liberty, promote the accountability of our government officers, and instill public confidence in the police officers who serve us daily." Statement of Interest of the United States, Sharp v. Baltimore City Police Dept., Civil No. 1:11-cv-02888-BEL (D. Md., Jan. 10, 2012) at 1 (http://www.justice.gov/crt/aboutlspl/documents/Sharp_SOI_1-10-12.pdf).
4. This case involves the unlawful arrest, beating and malicious prosecution of Mannie Garcia, a veteran photojournalist who did nothing more than attempt to photograph Montgomery County Police Officers on a public thoroughfare. The officers involved consciously and deliberately violated the plaintif:fs rights and then fabricated accounts of the arrest for "disorderly conduct" to conceal evidence of their wrongdoing. Montgomery County compounded the problem by mounting a prosecution that lacked any legitimate basis and by whitewashing an internal affairs investigation of the officers' misconduct. The Defendants' violations of law caused Mr. Garcia serious physical, emotional, and economic injuries.
5. Accordingly, this civil rights action seeks redress for the violation of Mr. Garcia's rights under the United States Constitution, federal, and state law. It challenges Montgomery County's policy, custom and practice of obstructing the First Amendment rights of the press and public to gather and record news and information about police activity in public places. This case presents a particularly disturbing example of the type of police misconduct directed at photographers in recent years that courts and the Justice Department have condemned.
PARTIES 6. Plaintiff Mannie Garcia, a Vietnam-era veteran who served honorably in the U.S. Air Force, resides in Montgomery County, Maryland. He is an award-winning freelance
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photojournalist and independent video producer with a career spanning more than 30 years, during which he covered such historic events as the fall of the Berlin Wall and wars in far-flung comers of the world, including Bosnia, Somalia, and Rwanda. He has been a credentialed member of the U.S. Senate Press Gallery and of the White House press corps for 20 years, and his photos have appeared in many leading national and international publications including NEWSWEEK, TIME, THE NEW YORK TIMES, LE FIGARO, DER SPIEGEL, and USA TODAY. Before the events that led to this case, Mr. Garcia had never been arrested nor had any disputes with law enforcement officers.
7. Defendant Montgomery County, Maryland is a municipal governmental unit created and authorized under the laws of Maryland. It is authorized by law to maintain a Police Department that acts through its Chief, Defendant Thomas Manger.
8. Defendant Thomas Manger is and at all times herein was Chief of Police for the Montgomery County Police Department ("MCPD"). Chief Manger is responsible, in whole and/or part, for creating, implementing, promulgating and enforcing the policies, practices, and/or customs complained of, including but not limited to those that prevented Mr. Garcia from engaging in lawfully protected and peaceful journalistic activity. Chief Manger's actions as alleged in this complaint were taken under color of the laws of the State of Maryland and Montgomery County. He is sued in his official capacity.
9. Defendant Christopher Malouf at all times relevant to this complaint was a duly appointed police officer of the MCPD holding the rank ofP03. His actions alleged in this complaint were taken under color ofthe laws ofthe State of Maryland and Montgomery County. He is sued in his individual and official capacities.
10. Defendant Kevin Baxter at all times relevant to this complaint was a duly appointed police officer of the MCPD. His actions alleged in this complaint were taken under
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color of the laws of the State of Maryland and Montgomery County. He is sued in his individual and official capacities.
11. Defendant Michael Graves at all times relevant to this complaint was a du1y appointed police officer of the MCPD. His actions alleged in this complaint were taken under color of the laws of the State of Maryland and Montgomery County. He is sued in his official capacity.
12. Defendant Mark Sheelor at all times relevant to this complaint was a duly appointed police officer of the MCPD, currently holding the rank ofLieutenant, and formerly, at the time of the events set forth herein, held the rank of Sergeant. His actions alleged in this complaint were taken under color ofthe laws ofthe State of Maryland and Montgomery County. He is sued in his individual and official capacities.
JURISDICTION AND VENUE 13. This action is brought pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 2000aa-6(a), and the First, Fourth, and Fourteenth Amendments to the United States Constitution. This Court has subject matter jurisdiction over all federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and supplemental jurisdiction over all state law claims pursuant to 28 U.S.C. § 1367. 14. All prerequisites to bringing suit, including those imposed by Maryland Code Ann. § 5-304, if any, have been satisfied. 15. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims herein occurred in this District and because all defendants reside in this District.
FACTS 16. On June 16, 2011, Mr. Garcia, his wife, and a family friend were leaving a restaurant when he witnessed an arrest of two young Hispanic men at the comer of Hickerson
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Drive and Georgia Avenue in Wheaton, Maryland. Mr. Garcia later learned that the Officers involved in the incident included Malouf, Baxter, Graves and two Montgomery County Alcohol and Tobacco Enforcement Officers.
17. When he saw the arrest, Mr. Garcia became concerned that the officers' actions might be inappropriate and that they might involve excessive force, so, as a journalist, he began to record the incident photographically.
18. At no time did Mr. Garcia interfere with or impede the police activity. He initially recorded the incident from a distance of at least thirty feet when Officer Baxter flashed him with a spotlight. Mr. Garcia moved further away and was photographing the arrest from across the street, a distance of nearly 100 feet, when Officer Malouf approached him.
19. As Officer Malouf approached, Mr. Garcia clearly and audibly identified himself as a member of the press, and opened his hands to show that he was peaceful and had in his possession nothing but a camera.
20. Officer Malouf was visibly upset that Mr. Garcia was recording the police action on a public street and shouted, "That's it. You are under arrest!" Officer Malouf then placed Mr. Garcia in a choke hold and dragged him across the street to his police cruiser.
21. Other than identifying himself as a member of the press, Mr. Garcia did not speak to the officers before he was placed under arrest.
22. Notwithstanding the fact that Mr. Garcia had clearly identified himself as a member of the press and had maintained a safe and respectful distance from the police activity, Officer Malouf subjected him to an unlawful arrest as well as verbal and physical abuse.
23. Upon his arrest, Mr. Garcia was placed in handcuffs and his camera was taken from him.
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24. Officer Malouf forcibly dragged Mr. Garcia across the street, throwing him to the ground along the way, inflicting significant injuries. While Mr. Garcia was cuffed, Officer Malouf kicked his right foot out from under him, causing Mr. Garcia to hit his head on the police cruiser while falling to the ground. As this was happening, Officer Malouf laughed and taunted Mr. Garcia, saying such things as "Stand up! Quit falling down."
25. Despite this abuse, Mr. Garcia did not resist the officers, nor did he take any action to provoke them.
26. Mr. Garcia called to his wife, who had been sitting in their car. As she emerged to see what was happening, Mr. Garcia heard an officer say "if that fucking bitch takes one more step I am going to arrest her ass." Mr. Garcia called to his wife to stay back, and it was at that point that Officer Malouf kicked his footing out from under him.
27. Mr. Garcia's wife approached Officer Baxter on the side of the street to ask what was happening. Baxter, visibly agitated, said, "He is under arrest and you will be too if you keep coming."
28. Neither Officer Malouf nor any ofthe other officers at the scene told Mr. Garcia what he was being charged with, nor did they provide Miranda warnings.
29. Mr. Garcia was placed into a police cruiser in which Office Malouf drove him to the Wheaton/Glenmont Police Station.
30. Parked outside the station, and while still in the cruiser, Mr. Garcia watched Officer Malouf remove the battery and video card from his camera, and stash the video card in his shirt pocket.
31. From the Wheaton/Glenmont Station, Mr. Garcia was taken to the Montgomery County Detention Center Central Processing Unit, where he was booked and held in custody for several hours until seen by a court commissioner.
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32. Mr. Garcia was charged with violating Maryland Criminal Code § 10-201, which prohibits, among other things, willfully acting in a disorderly manner that disturbs the public peace.
33. Well-established case law interpreting and applying Maryland Criminal Code § 10-201 allows prosecution only for conduct and speech that is unprotected by the First Amendment. In particular, it has been the law for three decades that a verbal protest against an illegal police order- even one that includes profanity - does not violate Maryland Criminal Code § 10-201 and cannot be punished constitutionally. Likewise, the law is clear that members of the public must actually be disturbed before the police have probable cause to make an arrest. Thus, even the facts as set forth in Officer Malouf's police report made clear that there was no probable cause to arrest Mr. Garcia for disorderly conduct, and no legitimate basis for prosecuting him.
34. In any event, Officer Malouf's report of the incident was a fabrication. At no time did Mr. Garcia shout or behave in a disorderly manner, much less use profanity. Eyewitness accounts confirmed that there was no disorderly conduct or disturbance of the peace, apart from the illegal police action.
35. After booking on the disorderly conduct charge, Mr. Garcia was released by the court commissioner on his personal recognizance. At that time, most of Mr. Garcia's property was returned to him, including his camera. However, his camera's video card that Officer Malouf had pocketed never was returned, and remains missing to this day.
36. Evidently on the theory that the best defense is a good offense, Montgomery County prosecl,lted Mr. Garcia in an effort to forestall an inevitable civil rights claim based on the incident. Thus, Montgomery County proceeded to trial on the disorderly conduct charge despite the fact it possessed evidence that that there was no probable cause to arrest Mr. Garcia and no legitimate claim he had been disorderly in any way.
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37. Following a trial on December 16, 2011, Judge William Simmons of the District
Court of Montgomery County ruled from the bench that Mr. Garcia was not guilty of violating
Maryland Criminal Code§ 10-201.
38. Defendants' illegal conduct toward Mr. Garcia resulted from Montgomery
County's policy or custom of indifference to misconduct by MCPD officers. The officers'
callous disregard for Mr. Garcia's clearly established rights illustrates a lack of training and
supervision requiring the police to follow the law and established departmental policies. This
deficiency is further underscored by the Department's utter failure to properly investigate Mr.
Garcia's Internal Affairs complaint regarding his mistreatment.
39. The policy the Defendants should have followed was directly on point. The
MCPD policy on Police/Media Relations, FC No. 1141, dated December 29, 2000, provides, in
relevant part:
It is the policy of the department to establish and maintain cooperative working relationships with members of the news media. In fact, to the extent possible, members ofthe media should be treated as invited guests at incident scenes rather than viewed as a hindrance. In most cases, their reporting of our involvement at newsworthy events will portray the work of our officers and employees in a positive light, which will help to
enhance our image and reputation within the community. * * * *
and On the scene of a newsworthy incident, members of the media should generally be allowed closer access to the scene than the public. Under no circumstances should the media be held backfrom an area where the general public has access. In public places, and places where the press may otherwise lawfully be, no police officer shall take any action to prevent or interfere with the news media in photographing or televising an event, a suspect, an accused person, or any other person or thing except that the presence of camera technicians and crews shall not be allowed to
interfere with the police mission at hand. * * * *
The policy was not followed in this case even though Mr. Garcia clearly identified himself as a
journalist prior to his arrest. Far from being treated as an "invited guest," as the policy requires,
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the Defendant officers treated Mr. Garcia as a trespasser on a public street and illegally abused him.
40. Mr. Garcia's brutal mistreatment was promptly brought to the attention of the MCPD's Internal Affairs Division, which did nothing to correct the abuse or to discipline the officers involved. Shortly after his arrest Mr. Garcia filed a complaint and met with Division officers. He followed up with Internal Affairs after charges against him were dismissed.
41. The Internal Affairs Division conducted an investigation, but its efforts were perfunctory and marred by incompetence. Certain witnesses were contacted and interviews were recorded, including interviews with Mr. Garcia and his wife. However, the principal investigator, then-Sergeant- now-Lieutenant- Mark Sheelor of Internal Affairs, claims to have "forgotten" to record any interviews with the officers who were under investigation, or even to take any notes.
42. The investigation also was compromised by a conflict of interest. The MCPD's Internal Affairs investigation was ongoing during Mr. Garcia's trial and ultimate acquittal on disorderly conduct charges. Yet during the criminal trial, then-Sergeant Sheelor conferred with and assisted the officers he was purporting to investigate.
43. The Internal Affairs Division sat on its investigation for nearly five months after Mr. Garcia was acquitted. Then, on April 12, 2012, Captain Christina Faass, Director of the Internal Affairs Division, informed Mr. Garcia by letter that "it has been determined [] there were no administrative violations."
44. Captain Faass' letter claimed "all pertinent information was examined closely," and that "after careful review, I concur with this fmding" of no administrative violations. However, this statement cannot withstand scrutiny as Sergeant Sheelor neglected to record or create a record of his interviews with the officers under investigation.
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45. Rather than undertaking proper investigation and disciplining the culpable parties, MCPD's actions set the stage for further violations of Mr. Garcia's rights. After he was acquitted, some of the arresting officers have been seen cruising Mr. Garcia's neighborhood and parking in front of his residence. These efforts to intimidate, which began after Mr. Garcia's arrest and Internal Affairs complaint, continued for a considerable period after his complaint and the initial filing of a civil suit.
46. These failings were exacerbated by the fact that the MCPD, and in particular Defendant Malouf, have never returned the video card seized from Mr. Garcia's camera, which would have documented the events of June 16, 2011, and corroborated Mr. Garcia's description of the events.
47. At the time of Mr. Garcia's unlawful arrest, the official policies that the MCPD actually followed (as opposed to those written but ignored) did not affirmatively prohibit its officers from preventing individuals or members of the media from recording police activity in public locations.
48. At all times relevant to this complaint, Montgomery County has had a policy, custom and practice of failing to adequately train its officers on the clearly established First Amendment right ofthe press and public to record police activity in public locations.
49. At all times relevant to this complaint, Montgomery County has had a policy, custom and practice of failing to supervise and discipline officers who unlawfully obstruct and/or prevent members of the media and the public from recording police activity conducted in public view, despite its awareness that these violations happen.
50. Repeated failure to supervise and discipline shows Montgomery County's deliberate indifference to the First Amendment rights of the public and press to record police conduct in public.
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51. The constitutional violations Mr. Garcia suffered at the hands of the MCPD and its Officers were caused by (a) Montgomery County's unconstitutional practices and policy; (b) a custom and practice among MCPD officers of obstructing and/or preventing members of the media from filming police activity conducted in public, and being emboldened by lack of punishment to do so; (c) Montgomery County's failure to adequately train its officers about the First Amendment right of the press and public to record police activity from public locations; and (d) Montgomery County's failure to supervise and discipline its officers to keep them from improperly and unlawfully obstructing and/or preventing individuals from recording police activity in public locations.
52. The Officers, and especially Officers Malouf and Baxter, callously disregarded Mr. Garcia's rights- and their own sworn obligation to uphold the law- and thus knowingly deprived Mr. Garcia of his First Amendment rights as a journalist, as well as his rights to due process and to be free from unreasonable search and seizure.
53. As a direct result of the illegal arrest and prosecution, Mr. Garcia's White House press pass was not renewed for a four-month period between September and December 2011. This prevented Mr. Garcia from being able to function as a member of the White House Press corps, of which he had been a member for two decades. This cut off a significant source of Mr. Garcia's income as a freelance journalist and infringed his First Amendment rights.
54. Officer Maloufs seizure of the video card from Mr. Garcia's camera, and its ensuing "disappearance" while in MCPD custody, was undertaken maliciously without due process, and constitutes the willful and knowing destruction of evidence relevant to Mr. Garcia's criminal case, and to this civil rights suit.
55. Officer Maloufs physical mistreatment of Mr. Garcia during his arrest also was malicious, and caused serious injuries to Mr. Garcia's neck, shoulder, and back.
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Notwithstanding the injuries inflicted, the Officers failed to provide Mr. Garcia necessary medical attention at the time of his false arrest.
56. These injuries caused Mr. Garcia to be unable to work for an extended period of time and required medical care and extensive physical rehabilitation. Mr. Garcia incurred medical and related expenses as a result of his injuries.
57. As a result of the physical injuries inflicted by the Defendants, and due to the emotional stress from the incident, Mr. Garcia was upset and had trouble sleeping.
58. Mr. Garcia also was forced to endure the humiliation of being physically abused in the presence of his wife, and has suffered damage to his professional reputation because of the false charges he faced.
59. Mr. Garcia had to incur considerable expense in defending against the baseless charges resulting from his unlawful arrest and malicious prosecution.
COUNT I Section 1983 Claim for Violation of Plaintiff's First and Fourteenth Amendment Rights
(ALL DEFENDANTS) 60. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 59 as if fully set forth herein. 61. Observing and recording police activity in public is fully protected by the free speech and free press clauses of the First Amendment to the United States Constitution, as applied to the State of Maryland under the Fourteenth Amendment. 62. By arresting and detaining Mr. Garcia for recording police activity in public, Officers Malouf, Baxter and Graves, and the MCPD, violated Mr. Garcia's clearly established First Amendment rights.
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63. The confiscation of and failure to return the video card from Mr. Garcia's camera also violated Mr. Garcia's clearly established First Amendment rights.
64. The Officers and the MCPD violated a clearly established constitutional right of which all MCPD police officers knew, or of which reasonable police officers should have known, rendering them liable to Mr. Garcia under 42 U.S.C. § 1983.
65. The Officers acted with reckless and callous indifference to Mr. Garcia's First Amendment rights.
66. The denial of constitutional rights is irreparable injury per se, and Mr. Garcia is entitled to declaratory and injunctive relief.
67. As a direct and proximate result of the actions of the Officers and MCPD, Mr. Garcia suffered physical, psychological, and professional injuries.
68. As a direct and proximate result of all of the violations of Mr. Garcia's First Amendment rights, he suffered damages, including:
a. Damage to his personal and professional reputation; b. Loss of earnings and earning capacity; c. Physical pain and suffering including medical treatment and expenses; d. Psychological and emotional injury, past and future; e. Degradation, humiliation, mental anguish, suffering and embarrassment;
and f. Costs of defense against his criminal charges and other expenses
associated therewith. COUNT II
Section 1983 Claim for First Amendment Retaliation (ALL DEFENDANTS)
69. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 68 as if fully set forth herein.
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70. Mr. Garcia's First Amendment rights to pursue an internal affairs investigation and to pursue a lawsuit for a violation of those rights were further violated by the arresting officers and other members of the MCPD repeatedly cruising his neighborhood and parking in front of his residence in an effort to threaten and intimidate Mr. Garcia.
71. Mr. Garcia intends to continue his career as a professional photojournalist photographically recording newsworthy police activity from public locations, but fears further obstruction, harassment and detention by Montgomery County police officers, which prevents him from doing his job effectively, and makes it more difficult for him to gather news for dissemination to the public.
COUNT III Section 1983 Claim for Violation of Plaintiff's Fourth and Fourteenth Amendment Rights
(ALL DEFENDANTS) 72. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 71 as if fully set forth herein. 73. Under the Fourth Amendment to the United States Constitution, as applied to the State of Maryland under the Fourteenth Amendment, Mr. Garcia has a right to be free from unreasonable searches and seizures. 74. Officers Malouf, Baxter and Graves and the MCPD violated Mr. Garcia's clearly established Fourth Amendment right to be free from unreasonable seizures by arresting and detaining Mr. Garcia, and by seizing his camera and video card, without probable cause to believe Mr. Garcia was engaged in any criminal activity. 75. The conduct of Officers Malouf, Baxter and Graves and of the MCPD violated a clearly established constitutional right of which all MCPD police officers knew, or of which reasonable police officers should have known, rendering them liable to Mr. Garcia under 42 U.S.C. § 1983.
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76. The Officers acted with reckless and callous indifference to Mr. Garcia's First

Amendment rights.

77. The denial of constitutional rights is irreparable injury per se, and Mr. Garcia is

entitled to declaratory and injunctive relief.

78. As a direct and proximate result of the actions of the Officers and MCPD, Mr.

Garcia suffered physical, psychological, and professional injuries.

79. As a direct and proximate result of all of the violations of Mr. Garcia's Fourth

Amendment rights, he suffered damages, including:

a. Damage to his personal and professional reputation;

b. Loss of earnings and earning capacity;

c. Physical pain and suffering including medical treatment and expenses;

d. Psychological and emotional injury, past and future;

e. Degradation, humiliation, mental anguish, suffering and embarrassment; and

f.

Costs of defense against his criminal charges and other expenses

associated therewith.

COUNT IV Section 1983 Monell Claim (DEFENDANT MONTGOMERY COUNTY)
80. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 79 as if

fully set forth herein.

81. In arresting Mr. Garcia for filming police activity in public, Officers Malouf,

Baxter and Graves violated Mr. Garcia's clearly established rights under the First, Fourth, and

Fourteenth Amendments to the United States Constitution.

82. At all times relevant to this complaint, Officers Malouf, Baxter and Graves were

acting under color of the laws of the State of Maryland and Montgomery County.

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83. At the time of Mr. Garcia's unlawful arrest, the MCPD's "official" policy required MCPD officers to cooperate with members of the news media, to treat them as "invited guests" at incident scenes, and to generally give them closer access to the scene than the public, and under no circumstances were they to hold members of the media back from an area where the general public has access, or take any action to prevent or interfere with photographing an incident or a suspect.
84. Nonetheless, the Officers interfered with and prevented Mr. Garcia's activities as a journalist by arresting him, physically battering him, and by confiscating his camera and video card.
85. At all times relevant to this complaint, notwithstanding its written policies on the subject, Montgomery County had a custom and practice of allowir~.g MCPD officers to obstruct and/or prevent media members from recording police activity in public locations, in violation of the First Amendment, as evidenced by the actions of Officers Malouf, Baxter and Graves, and the ensuing malicious prosecution of Mr. Garcia, and as manifested by the inadequate internal affairs investigation that resulted in no record of any interviews of the involved officers or any punishment of consequences of them, which effectively sanctioned and endorsed the treatment of Mr. Garcia.
86. Montgomery County failed to adequately train its officers in its so-called "Police/Media Relations" policy, or with respect to the First Amendment right of the public and the press to record public scenes of police activity, displaying deliberate indifference to its citizens' constitutional rights.
87. Montgomery County failed to supervise and discipline its officers for unlawfully interfering with the First Amendment right of the public and press to record public scenes of police activity, displaying deliberate indifference to its citizens' constitutional rights.
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88. Montgomery County also failed to supervise and discipline its officers, and has effectively endorsed their actions, insofar as the MCPD's policy and oversight allows and enables the arresting and other MCPD officers to cruise Mr. Garcia's street and home unnecessarily, as a means of intimidating him and his wife.
89. These unconstitutional policies, customs and practices of Montgomery County were the moving force behind the violation of Mr. Garcia's constitutional rights by the Officers and the MCPD.
90. As a direct and proximate result of Montgomery County's unconstitutional policies, customs and practices, Mr. Garcia suffered damages, including:
a. Damage to his personal and professional reputation; b. Loss of earnings and earning capacity; c. Physical pain and suffering including medical treatment and expenses; d. Psychological and emotional injury, past and future; e. Degradation, humiliation, mental anguish, suffering and embarrassment;
and f. Costs of defense against his criminal charges and other expenses
associated therewith. COUNTY
Section 2000aa Claim - Privacy Protection Act of 1980 (ALL DEFENDANTS)
91. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 90 as if fully set forth herein.
92. The seizure of Mr. Garcia's camera and video card by Officers Malouf and Baxter and other MCPD officers constituted a search and/or seizure of work product materials from Mr. Garcia, who the officers were aware was a photojournalist.
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93. This seizure of Mr. Garcia's camera and video card by Officers Malouf and Baxter and other MCPD officers, and the permanent deprivation of the video card, violated the Privacy Protection Act of 1980, 42 U.S.C. § 2000aa.
94. The Officers and other members of the MCPD who had access to Mr. Garcia's video card, acted with reckless and callous indifference to Mr. Garcia's federally protected rights.
95. By reason of these seizures of his camera and video card, Mr. Garcia suffered actual damages,' including the loss of licensing fees from his inability to license time-sensitive footage to news organizations, and the value of the video card itself, and of the images other than the arrest described herein, that were on the video card.
COUNT VI False Arrest and False Imprisonment
(ALL DEFENDANTS) 96. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 95 as if fully set forth herein. 97. Officers Malouf, Baxter and Graves observed Mr. Garcia video-recording the officers effectuating an arrest. 98. The Officers, who had no rational reason to believe Mr. Garcia was committing any crime, approached Mr. Garcia, handcuffed him, and placed him under arrest. 99. Garcia's arrest was made without a warrant or legal justification. 100. The fact that Mr. Garcia was video-recording police actions did not constitute the probable cause needed to make a warrantless arrest, or provide legal justification for the arrest. 101. The Officers intended to confine Mr. Garcia and deprive him of his liberty when they arrested and placed him in police custody without probable cause.
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102. These actions were flagrant, malicious, willful, wanton and reckless, and displayed a high degree of moral culpability.
103. The Officers' conduct was committed within the scope of their employment by · Montgomery County, and their actions were approved, consented to, and ratified by superior officers of the MCPD acting within the scope of their employment.
104. As a direct and proximate result of the foregoing, Mr. Garcia suffered damages, including:
a. Damage to his personal and professional reputation; b. Loss of earnings and earning capacity; c. Physical pain and suffering including medical treatment and expenses; d. Psychological and emotional injury, past and future; e. Degradation, humiliation, mental anguish, suffering and embarrassment;
and f. Costs of defense against his criminal charges and other expenses
associated therewith. COUNT VII
Malicious Prosecution (ALL DEFENDANTS) 105. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 104 as if fully set forth herein. 106. Mr. Garcia's arrest and seizure without probable cause led to his prosecution for disorderly conduct without probable cause. 107. Acting jointly, the Officers, on or about June 16, 2011, swore out an application for a statement of charges for the arrest of Mr. Garcia for allegedly violating Maryland Code Criminal § 10-201 Disorderly Conduct, and stated that Mr. Garcia "did willfully act in a disorderly manner to the disturbance of the public peace."
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108. Officer Malouf swore out a warrant for that charge before a Commissioner of the District Court of Maryland for Montgomery County, and in doing so, with knowledge the charges were false, acted with malice.
109. Other Officers and/or members of the MCPD, each instituted and/or cooperated to ensure the prosecution went forward.
110. The Officers appeared before the criminal court at th.at time and falsely, maliciously, and without probable cause testified Mr. Garcia committed the crime of disorderly conduct.
111. The prosecution was malicious insofar as it was based on Mr. Garcia's exercise of a clearly protected First Amendment right.
112. The prosecution of Mr. Garcia was terminated by the not guilty verdict rendered by Montgomery County District Court Judge William Simmons.
113. The actions of the Officers and their cooperating MCPD officers, were flagrant, willful, wanton and reckless, and displayed a high degree of moral culpability.
114. The conduct of the Officers and their cooperating MCPD officers, was committed within the scope of their employment by Montgomery County, and their actions were approved, consented to, and ratified by superior officers of the MCPD.
115. As a direct and proximate result of the foregoing, Mr. Garcia suffered damages, including:
a. Damage to his personal and professional reputation; b. Loss of earnings and earning capacity; c. Psychological and emotional injury, past and future; d. Degradation, humiliation, mental anguish, suffering and embarrassment;
and
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e. Costs of defense against his criminal charges and other expenses associated therewith. COUNT VIII Battery (DEFENDANT MALOUF)
116. Mr. Garcia repeats and realleges the allegations in Paragraphs 1 through 115 as if fully set forth herein.
117. Officer Malouf, without probable cause, announced that Mr. Garcia was under arrest, then placed a "choke hold" on him to drag him across the street, and threw him to the ground, before placing him in handcuffs.
118. Officer Malouf kicked Mr. Garcia's foot out from under him while Mr. Garcia was handcuffed, causing him to hit his head on a police cruiser while falling to the ground.
119. Other than identifying himself as a member of the press, Mr. Garcia had not spoken to the officers until he was placed under arrest, nor did he resist Officer Malouf or take any action to provoke the Officer Malouf or his colleagues.
120. Officer Malouf's conduct constituted an intentional, harmful, and offensive touching of Mr. Garcia by Officer Malouf, and was undertaken deliberately and with actual or implied malice.
121. Officer Malouf's actions were flagrant, willful, wanton and reckless, and displayed a high degree of moral culpability.
122. Officer Malouf's conduct was committed within the scope of his employment by Montgomery County, and his actions were approved, consented to, and ratified by superior officers of the MCPD acting within the scope ofhis employment.
123. As a direct and proximate result of the foregoing, Mr. Garcia suffered damages, including:
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a. Loss of earnings and earning capacity; c. Physical pain and suffering including medical treatment and expenses;
I
c. Psychological and emotional injury, past and future; and d. Degradation, humiliation, mental anguish, suffering and embarrassment.
PRAYER FOR RELIEF WHEREFORE, Plaintiff Mannie Garcia requests relief as follows: (a) A declaratory judgment that Mr. Garcia's arrest for video-recording police
activity in a public location and the ongoing menacing of Mr. Garcia and his wife violated his clearly established constitutional rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution; (b) A declaratory judgment that the confiscation of Mr. Garcia's camera and video card, and the permanent deprivation of the video card, violated his clearly established constitutional rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution and the Privacy Protection Act, 42 U.S.C. § 2000aa; (c) An award of compensatory damages against defendants jointly and severally, in an amount to be determined by a jury at trial, for damages Mr. Garcia suffered in the form of diminished personal and professional reputation; lost earnings and earning capacity; physical pain and suffering, including medical treatment and expenses therefor; psychological and emotional injury; degradation, humiliation, mental anguish, suffering and embarrassment; and the costs of successfully defending against criminal charges and other associated expenses; (d) Pursuant to 42 U.S.C. § 2000aa-(6)(a) and (f), an award against the defendants jointly and severally of actual damages, in an amount to be determined by a jury
22

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at trial, as suffered by Mr. Garcia as result ofthe unlawful seizure of his camera and video card; (e) Punitive damages in an amount to be determined by a jury at trial; (f) Injunctive relief (i) barring Montgomery County from arresting, detaining, obstructing or otherwise interfering with journalists and members of the public who are engaged in recording police activity in public places; and (ii) directing Montgomery County to develop and implement, with the Court's oversight, a comprehensive and effective policy to protect the First Amendment rights of the public and press to observe and record police activity in public, including appropriate training and procedures to test the effectiveness of that policy on the ground and to discipline appropriately those who breach it; (g) Pursuant to 42 U.S.C. §§ 1988 and 2000aa-6(f), an award of the costs and expenses of prosecuting this action, including reasonable attorney's fees; and (h) Such other relief that this Court may deem just, proper, and appropriate.
Respectfully submitted,
~12-
Robert Com-Revere pro hac vice pending Ronald G. London DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW, Ste. 800 Washington, DC 20006 Ph: 202-973-4200 bobcornrevere@dwt.com JURY TRIAL DEMAND Plaintiff hereby requests a trial by jury on all paragraphs and counts .
23

 
 Case 8:12-cv-03592-JFM Document 15 Filed 03/04/13 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MANNIE GARCIA,

)

)

Plaintiff,

)

v.

)

)

MONTGOMERY COUNTY,

)

MARYLAND, et al.,

)

)

Defendants.

)

____________________________________)

Civil No. 8:12-cv-03592-JFM

STATEMENT OF INTEREST OF THE UNITED STATES

The United States addressed the central questions raised in this case – whether individuals have a

First Amendment right to record police officers in the public discharge of their duties, and whether

officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize such recordings without a warrant or due process – in a Statement of Interest filed in Sharp v. Baltimore City Police Dept., et al., No. 1:11-cv-02888 (D. Md.), attached here as Exhibit A.1 Here, as there, the United States

urges the Court to answer both of those questions in the affirmative. This case raises questions that the United States did not address directly in Sharp, the answers to

which are critical to ensuring that the constitutional rights at issue in that case are upheld. First, the

United States urges the Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street, if officers arrest the individual and seize

the camera of that individual for that activity. Second, the United States is concerned that discretionary

charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment

1 Statement of Interest of the United States, Sharp v. Baltimore City Police Dept., et al., No. 1:11-cv02888 (D. Md. Jan. 10, 2012), ECF No. 24.
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rights. The United States believes that courts should view such charges skeptically to ensure that individuals’ First Amendment rights are protected. Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges. Third, the First Amendment right to record police officers performing public duties extends to both the public and members of the media, and the Court should not make a distinction between the public’s and the media’s rights to record here. The derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.
The United States is charged with enforcing three federal civil rights statutes that prohibit state and local law enforcement agencies from engaging in conduct that deprives persons of their rights under the Constitution and laws of the United States. One of the provisions that the United States enforces is the police misconduct provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, which authorizes the Attorney General to file lawsuits seeking court orders to reform police departments engaging in a pattern or practice of violating individuals’ federal rights. The United States also enforces the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964. Together, these two provisions prohibit discrimination on the basis of race, color, sex, or national origin by police departments receiving federal funds. Because of these enforcement responsibilities, the United States has a strong interest in ensuring that individuals’ constitutional rights are protected when they observe and document police carrying out their duties in a public setting. Accordingly, the United States files this Statement of Interest pursuant to 28 U.S.C. § 517.
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FACTUAL AND PROCEDURAL BACKGROUND According to the Complaint, on June 6, 2011, Mr. Garcia observed Montgomery County Police Department (“MCPD”) officers arresting two men and became concerned that the actions of the officers were inappropriate and might involve excessive force.2 Compl. at 4-5, ECF No. 1. He was on a public street when he observed the arrest. Id. As a journalist, Mr. Garcia took out his camera and began photographing the incident, initially from at least 30 feet away, and then from nearly 100 feet away after an officer flashed him with a spotlight. Id. at 5. He did not interfere with the police activity. Id. Other than clearly and audibly identifying himself as a member of the press, Mr. Garcia did not speak to the officers. Id. One of the officers was visibly upset that Mr. Garcia was recording and shouted that Mr. Garcia was under arrest. Id. The officer placed Mr. Garcia in a choke hold and dragged him to the police cruiser. Id. The officer placed Mr. Garcia in handcuffs, seized his camera, and threw Mr. Garcia to the ground, injuring him. Id. at 5-6. Mr. Garcia did not resist his arrest. Id. at 6. While in the police car, Mr. Garcia observed the officer remove the battery and video card from his camera. Id. Mr. Garcia was charged with disorderly conduct. Id. at 7. Although his possessions were returned to him when he was released, his video card was never returned. Id. Following a bench trial in December 2011, Mr. Garcia was acquitted of the disorderly conduct charge. Id. at 8. On December 7, 2012, Mr. Garcia filed a Complaint against Montgomery County, the Chief of MCPD, an MCPD Lieutenant, and three MCPD officers alleging violations of state law and rights protected by the First and Fourth Amendments to the Constitution. On February 1, 2013, the official 2 The United States assumes the facts presented in the Plaintiff’s Complaint are true for the purposes of this Statement of Interest. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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capacity defendants (“Defendants”) filed a Motion to Dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure.
ARGUMENT The First, Fourth, and Fourteenth Amendments protect Mr. Garcia from the actions taken by MCPD officers in response to Mr. Garcia’s recording of their actions, at least on the facts alleged in the Complaint. As the United States argued in Sharp, recording police officers in the public discharge of their duties is protected First Amendment activity, and officers violate individuals’ Fourth and Fourteenth Amendment rights when they seize such recordings without a warrant or due process, except in exigent circumstances not present here. Because recording police officers in the public discharge of their duties is protected speech, when a person is arrested for recording police officers in a public place, both the First and Fourth Amendments are implicated. Arrests involving such activity should receive the highest level of scrutiny, particularly if the charges involved are highly discretionary, such as disorderly conduct or loitering. And the protections afforded by the First and Fourth Amendments in this context extend not only to members of the press, but also to the general public. Because Defendants’ Motion to Dismiss does not adequately recognize these constitutional protections, the Motion to Dismiss should be denied.3 I. The First Amendment Protects Photographing Police Activity That Occurs in Public It is now settled law that the First Amendment protects individuals who photograph or otherwise record officers engaging in police activity in a public place. Here, Mr. Garcia alleges that he was
3 The Defendants make numerous arguments in their Motion to Dismiss, many of which do not implicate the United States’ interests. In this Statement of Interest, the United States addresses only those arguments that pertain to its enforcement responsibilities under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act of 1968, and Title VI of the Civil Rights Act of 1964.
4

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peacefully photographing what he perceived to be police officers using excessive force on a public street. If true, and we must assume that it is for the purposes of a motion to dismiss, this conduct is unquestionably protected by the First Amendment. Both the location of Mr. Garcia’s photography, a public street, and the content of his photography, speech alleging government misconduct, lie at the center of the First Amendment. By forcibly arresting Mr. Garcia and seizing his camera, Defendants stopped Mr. Garcia from photographing a matter of public interest and prevented him from distributing those photographs to the public. Yet, Defendants argue that the First Amendment does not protect individuals from such police action and the only “real alleged Constitutional violation” lies under the Fourth Amendment.4 Defendants further allege that the officer’s “alleged seizure of the memory card is not a First Amendment violation.” Id. These arguments underestimate the breadth of the First Amendment’s protections.
A. The First Amendment Is Implicated When a Person Is Arrested for Recording Public Police Activity
Contrary to Defendants’ assertions, the First Amendment is implicated when police arrest and seize the camera of a person recording police activity in a public place. As alleged in the Complaint, Mr. Garcia recorded officers in a public place. He photographed officers engaged in their duties on a public street, “the archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S. 474, 480 (1988). Public streets “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (citation omitted); accord Warren v. Fairfax Cnty., 196 F.3d 186, 191 (4th Cir. 1999) (“[A] court can generally
4 See Defendants’ Amended Motion to Dismiss/Partially Dismiss Counts I, II, III, IV, V, VI and VII of Plaintiff’s Complaint and For Other Relief (hereinafter “Def.’s Mot. Dismiss”), ECF No. 11 at 21.
5

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treat a street, sidewalk, or park as a traditional public forum without making a ‘particularized inquiry.’”). Accordingly, “members of the public retain strong free speech rights when they venture into public streets and parks,” and “government entities are strictly limited in their ability to regulate private speech in such traditional public fora.” 5 Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009) (citation omitted).
The First Amendment is implicated by Mr. Garcia’s arrest not only because of where Mr. Garcia was recording, but also because of the nature of the speech he was engaged in. The type of speech at issue here – alleged government misconduct – “has traditionally been recognized as lying at the core of the First Amendment.” Butterworth v. Smith, 494 U.S. 624, 632 (1990); Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”). The protection offered by the First Amendment is not diminished when that speech is communicated through a camera lens or recording device. See Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cr. 2012) (“Audio and audiovisual recording are media of expression . . . included within the free speech and free press guaranty of the First and Fourteenth Amendments.”) (citation omitted); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (recognizing First Amendment right to “videotape police carrying out their duties.”); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to record police conduct); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (same). While the right to record police activity is generally subject to reasonable time, manner, and place restraints, see, e.g., Kelly v. Borough 5 This statement does not address First Amendment rights in non-public and limited public forums. See Am. Civil Liberties Union v. Mote, 423 F.3d 438, 443 (4th Cir. 2005) (“[A] non-public forum is one that has not traditionally been open to the public, where opening it to expressive conduct would somehow interfere with the objective use and purpose to which the property has been dedicated.”) (citation omitted); id. (A limited public forum “is one that is not traditionally public, but the government has purposefully opened to the public, or some segment of the public, for expressive activity.”).
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of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010), the conduct that Mr. Garcia engaged in – “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties,” is conduct “not reasonably subject to limitation.” Glik, 655 F.3d at 84.
Accordingly, Defendants’ position that the officers’ arrest of Mr. Garcia and seizure of his camera only implicates the Fourth Amendment is untenable. The reach of the First Amendment’s protection extends beyond the right to gather information critical of public officials – it also prohibits government officials from “punish[ing] the dissemination of information relating to alleged governmental misconduct.” Gentile, 501 U.S. at 1034-35 (Kennedy, J.). When police officers seize materials in order to suppress the distribution of information critical of their actions, “the seizure clearly contravene[s] the most elemental tenets of First Amendment law.” Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (deputies violated First Amendment by suppressing distribution of newspaper critical of Sheriff’s department). For decades, the Supreme Court has recognized that government action intended to prevent the dissemination of information critical of public officials, including police officers, constitutes an invalid prior restraint on the exercise of First Amendment rights. See, e.g., Near v. Minnesota, 283 U.S. 697 (1931) (finding that statute prohibiting the publication of articles critical of law enforcement officers was an unlawful prior restraint on First Amendment rights); Rossignol, 316 F.3d at 522 (By “intentionally suppress[ing] the dissemination of plaintiffs’ political ideas on the basis of their viewpoint . . . before the critical commentary ever reached the eyes of readers,” Defendants’ “conduct met the classic definition of a prior restraint.”). That MCPD officers seized a camera and video card and not a publication does not diminish the significance of the First Amendment violation. “Seizure of [a] camera and film is at least as effective a prior restraint—if not more so—as . . . an injunction against publication.” Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 637 (D. Minn. 1972);
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Case 8:12-cv-03592-JFM Document 15 Filed 03/04/13 Page 8 of 13
see also Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (“[T]o the extent that the troopers were restraining Robinson from making any future videotapes and from publicizing or publishing what he had filmed, the defendants’ conduct clearly amounted to an unlawful prior restraint upon his protected speech.”). For these reasons, Mr. Garcia’s claims under the First Amendment should not be dismissed.
B. Mr. Garcia May Bring Claims Under Both the First and Fourth Amendments To the extent that Defendants argue that Mr. Garcia must choose between two applicable constitutional provisions, this position is inaccurate. The Supreme Court “has never held that one specific constitutional clause gives way to another equally specific clause when their domains overlap.” Presley v. City of Charlottesville, 464 F.3d 480, 485 (4th Cir. 2006); United States v. James Daniel Good Real Prop., 510 U.S. 43, 49 (1993) (“We have rejected the view that the applicability of one constitutional amendment pre-empts the guarantees of another.”). Where a “wrong[] affect[s] more than a single right,” courts are not charged with “identifying . . . the claim’s ‘dominant’ character,” but instead “must examine each constitutional provision in turn.” Soldal v. Cook Cnty., Ill., 506 U.S. 56, 70 (1992). Because the facts alleged in Mr. Garcia’s Complaint involve potential violations of both the First and Fourth Amendments, he may bring claims under both, and he need not choose between the protections afforded by them. II. Discretionary Charges May Not Be Used To Chill Protected Speech Activity Because recording public police activity is protected by the First Amendment, courts have viewed and should view discretionary charges brought against individuals engaged in protected speech with considerable skepticism. Several cases that have arisen recently regarding the recording of public police activity have involved discretionary charges such as disorderly conduct, loitering, disturbing the
8

Case 8:12-cv-03592-JFM Document 15 Filed 03/04/13 Page 9 of 13
peace, and resisting arrest, being brought against the person engaged in the recording. See, e.g., Glik, 655 F.3d at 80 (“[T]he Boston Municipal Court disposed of the remaining two charges for disturbance of the peace and violation of the wiretap statute. With regard to the former, the court noted that the fact that the ‘officers were unhappy they were being recorded during an arrest . . . does not make a lawful exercise of a First Amendment right a crime.’”); Datz v. Milton, No. 2:12-cv-01770 (E.D.N.Y.) (Plaintiff was charged with obstructing government administration); Montgomery v. City of Philadelphia, No. 2:2013-cv-00256 (E.D. Pa.) (Plaintiff was charged with disorderly conduct); see also Justin Fenton, In Federal Hill, Citizens Allowed to Record Police – But Then There’s Loitering, The Baltimore Sun, Feb. 11, 2012 (officer instructing a citizen-recorder that he would face loitering charges if he failed to move away from the scene of an arrest). Use of such charges against individuals recording public police activity chills protected First Amendment speech.
Here, the Complaint alleges that Mr. Garcia was arrested for disorderly conduct solely because he photographed what he believed to be officers engaging in excessive force. If true, this arrest violates both the First and Fourth Amendments. Courts have routinely rejected officers’ attempts to criminalize protected speech through the use of charges that rely heavily on the discretion of the arresting officer on both First and Fourth Amendment grounds. See Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973) (reversing disorderly conduct conviction where petitioner “nonprovocatively voic[ed] his objection to what he obviously felt was a highly questionable detention by a police officer”); Swartz v. Insogna, 704 F.3d 105, 110-11 (2d Cir. 2013) (no probable cause for disorderly conduct arrest where plaintiff’s statements and gesture critical of the police were protected speech); Wilson v. Kittoe, 337 F.3d 392, 401 (4th Cir. 2003) (“While it may be inconvenient to a police officer for a neighbor to stand nearby and watch from his driveway as the officer works, inconvenience cannot, taken alone, justify an arrest under
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the Obstruction Statute.”); Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003) (finding that “arguing with a police officer, even if done loudly, or with profane or offensive language, will not in and of itself constitute disorderly conduct”); Johnson v. Campbell, 332 F.3d 199, 213 (3d Cir. 2003) (disorderly conduct arrest not supported by probable cause where plaintiff’s “words [to officer] were unpleasant, insulting, and possibly unwise” but were protected by the First Amendment); Gainor v. Rogers, 973 F.2d 1379, 1387-88 (8th Cir. 1992) (disorderly conduct arrest not supported by probable cause where plaintiff was “merely exercising his First Amendment rights” when he expressed a religious message and challenged police officers’ actions); see also Cox v. City of Charleston, SC, 416 F.3d 281, 286 (4th Cir. 2005) (finding disorderedly conduct statute violated First Amendment where individuals’ “expression does nothing to disturb the peace, block the sidewalk, or interfere with traffic,” yet “the Ordinance renders it criminal”).
These decisions are based, in part, on the premise that “[p]olice officers must be more thick skinned than the ordinary citizen and must exercise restraint in dealing with the public” and “must not conceive that every threatening or insulting word, gesture, or motion amounts to disorderly conduct.” Payne v. Pauley, 337 F.3d at 777 (citation omitted). See also City of Houston, Tex. v. Hill, 482 U.S. 451, 462 (1987) (citing Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J., concurring) (“[A] properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen.”)). Indeed, police officers have a duty to ensure that the First Amendment is upheld and protected speech is not curtailed.
To be sure, individuals may not use the guise of engaging in protected First Amendment speech in an effort to interfere with police activity. See Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972) (individual’s speech not protected by the First Amendment where individual persistently tried to
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engage an officer in conversation while the officer was issuing a summons to a third party on a congested roadside and refused to depart the scene after at least eight requests from officers); King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (individual was not engaged in protected speech when he repeatedly instructed a witness being questioned by a police officer not to respond to questions). But there are no facts alleged in the Complaint that suggest that Mr. Garcia interfered with the MCPD officers during the course of their arrest of the other individuals. He merely recorded their activity from a considerable distance, and backed even further away when he thought the officers may be bothered by his presence. In doing so, Mr. Garcia’s actions were entirely consistent with the guidelines the United States provided to Baltimore City Police Department in Sharp. See Letter from Jonathan M. Smith to Mark H. Grimes and Mary E. Borja (“BPD Letter”) at 5-7 (May 14, 2012) (describing how officers should instruct individuals to a less-intrusive place where they can continue recording) (attached here as Exhibit B). There are no facts alleged in the Complaint that suggest that Mr. Garcia was arrested for anything other than recording the MCPD officers making an arrest, which is protected under both the First and Fourth Amendments. III. Members of the Public and the Media Are Both Entitled to Protection Under the First
Amendment The First Amendment protections afforded members of the public and press when recording public police activity are coextensive. As the Supreme Court established more than thirty years ago, “the press does not have a monopoly on either the First Amendment or the ability to enlighten.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 782 (1978). Although Mr. Garcia alleges facts here that show that he is a member of the press, this makes no difference to the analysis under the First Amendment. See BPD Letter at 10-11.
11

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In his Complaint, Mr. Garcia alludes to his status as a photojournalist and credentialed member of the news media. Compl. at 5. He alleges that MCPD’s policy on Police/Media Relations should have governed how MCPD handled the incident, and thus the officers on the scene should have treated Mr. Garcia “as ‘invited guest,’ as the policy requires.” Compl. at 8. While Mr. Garcia’s status as a journalist and the existence of MCPD’s media relations policy may be applicable to Mr. Garcia’s claim that Montgomery County has a custom or practice of preventing members of the media from recording police activity and fails to train MCPD officers on its media policy, it is not relevant to the constitutional analysis. As the First Circuit stated in upholding a private individual’s right to record the police, “[t]he First Amendment right to gather news is . . . not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.” Glik, 655 F.3d at 83 (citing Houchins v. KQED, Inc., 438 U.S. 11, 16 (1978) (Stewart, J., concurring)). “[T]he newsgathering protections of the First Amendment cannot turn on professional credentials or status.” Id. at 84; see also Alvarez, 679 F.3d at 597-98 (noting that the Supreme Court “declined to fashion a special journalists’ privilege” in Branzburg v. Hayes, 408 U.S. 665, 681 (1972) and holding that audio recordings of police officers by private individuals are entitled to First Amendment protections).
Courts have long held that recordings made by private citizens of police conduct or other items of public interest are entitled to First Amendment protection. See, e.g., Glik, 655 F.3d at 84-85 (finding First Amendment right to record “clearly established”); Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439; Blackston v. Alabama, 30 F.3d 117, 120-21 (11th Cir. 1994); Lambert v. Polk Cnty., 723 F. Supp. 128, 133 (S.D. Iowa 1989). Similarly, the Supreme Court has established that journalists are not entitled to greater First Amendment protections than private individuals. See,e.g., Nixon v. Warner Comm., Inc., 435 U.S. 589, 608-09 (1978) (“The First Amendment generally grants the press no right to information
12

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about a trial superior to that of the general public.”); Branzburg, 408 U.S. at 684 (“It has generally been
held that the First Amendment does not guarantee the press a constitutional right of special access to
information not available to the public generally.”) (citing cases). Thus, this Court should make clear
that Mr. Garcia’s status as a credentialed journalist does not influence its analysis of his First
Amendment right to document police activity occurring in public.
CONCLUSION
For the reasons set forth herein, the Court should deny Defendants’ Motion to Dismiss.
Respectfully submitted,
ROY L. AUSTIN, JR. Deputy Assistant Attorney General Civil Rights Division
JONATHAN M. SMITH Chief Special Litigation Section
TIMOTHY D. MYGATT Special Counsel Special Litigation Section
/s/ Rashida J. Ogletree RASHIDA J. OGLETREE (DC Bar #974441) SAMANTHA K. TREPEL (DC Bar #992377) Trial Attorneys U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 305-3712 Facsimile: (202) 514-0212 Email: rashida.ogletree@usdoj.gov
Attorneys for the United States of America
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 Case 8:12-cv-03592-JFM Document 21 Filed 08/23/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

______________________________________

)

MANNIE GARCIA,

)

)

Plaintiff,

)

)

v.

)

Civil No. JFM-12-3592

)

MONTGOMERY COUNTY,

)

MARYLAND, et al.,

)

)

Defendants. )

______________________________________ )

ORDER For the reasons stated in the accompanying Memorandum, it is, this 23rd day of August 2013, hereby ORDERED that: 1. Defendants’ amended motion to dismiss counts I through VII of plaintiff’s complaint (ECF No. 11) is GRANTED in part and DENIED in part; 2. The claims asserted against Lieutenant Sheelor in his individual capacity in Counts I, II, and III are DISMISSED; 3. The claim asserted against Officer Baxter in his individual capacity in Count III is DISMISSED; 4. The official capacity claims asserted against Officers Malouf, Baxter, and Graves and Lieutenant Sheelor in Counts I, II, and III are DISMISSED; 5. The state-law claims asserted against Montgomery County and the official capacity defendants in Counts VI and VII are DISMISSED; 6. The state law claims asserted against Officer Baxter and Lieutenant Sheelor in their official capacities in Counts VI and VII are DISMISSED;

Case 8:12-cv-03592-JFM Document 21 Filed 08/23/13 Page 2 of 2
7. The Privacy Protection Act claim asserted in Count V is DISMISSED with respect to all defendants other than Montgomery County;
8. The official capacity claims asserted against Chief Manger in Counts I, II, and III and against Montgomery County in Count IV are bifurcated and stayed pending resolution of the individual capacity claims; and
9. All other claims will proceed.

United

/s/ J. Frederick Motz
States District Judge

 
 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MANNIE GARCIA,
Plaintiff,
v.
MONTGOMERY COUNTY, MARYLAND, OFFICER CHRISTOPHER MALOUF, in his official and individual capacities, OFFICER KEVIN BAXTER, in his official and individual capacities,
and CHIEF OF POLICE THOMAS MANGER, in his official capacity,
Defendants.

Civil Action No. TDC-12-3592

MEMORANDUM OPINION Plaintiff Mannie Garcia, an award-winning photojournalist, alleges that, in June 2011, he was arrested by Montgomery County Police Department officers for disorderly conduct solely because he was video recording them as they effected the arrest of two other people. He was later found not guilty of that offense. Garcia asserts that by arresting him for filming, the officers violated his rights under the First and Fourth Amendments to the Constitution. Garcia also contends that the video card in his camera, which contains the record of the events of that night, was unlawfully seized by one of the officers and never returned. In response to these events, Garcia filed suit against the officers involved in his arrest, the Montgomery County Police Department ("MCPD"), and various other MCPD officials, asserting claims under 42 U.S.C. ~ 1983 for the alleged First and Fourth Amendment violations relating to his arrest; a First Amendment retaliation claim, based on his belief that various police officers were trying to

intimidate him out of pursuing legal action; several other statutory and common law actions; and
a 42 U.S.C. S 1983 claim against the MCPD for unconstitutional policies, customs, and practices.

Defendants paint a very different picture of the events leading to Garcia's arrest, asserting

that Garcia was arrested not because he was video recording the police, but because, after a

police officer approached him to ask benign questions about what he was doing, Garcia began to

yell and curse, and continued to do so despite being asked repeatedly to quiet down. Defendants

also deny taking Garcia's video card. From their perspective, Garcia's arrest does not raise First

Amendment issues about the right to film police officers, but is instead an attempt to recast a

routine arrest for disorderly conduct as a case of constitutional significance.

Presently pending before the Court are Defendants' Motion for Summary Judgment, ECF

No. 62, and Garcia's Cross-Motion for Partial Summary Judgment, ECF No. 63. The Court

heard oral argument on the motions on September 9, 2015. For the reasons outlined below,

Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART,

and Garcia's Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN

PART.

BACKGROUND

I.

Video Recording of Police Activity

At about 7:30 p.m. on the evening of June 16,2011, Garcia and his wife, Vicky Allen,

met a friend for dinner at Woomi, a restaurant in Wheaton, Maryland near Georgia Avenue and

Hickerson Drive. Nearby, at about 8:30 p.m., Carlos Grajeda and Lee Williams, members of

Montgomery County's Civilian Alcohol Enforcement squad, witnessed a man buying alcohol for

a minor. Grajeda and Williams put out a call for police officers to assist them in citing the two

2

individuals involved in the alcohol purchase. Officer Kevin Baxter and Officer Michael Graves, each in his own patrol car, responded to the call.
Soon after Officers Baxter and Graves arrived, between 8:40 and 9:00 p.m., Garcia and Allen left Woomi and headed back to their car, which was parked across the street from the restaurant. As Garcia crossed the street, he noticed the police officers and the alcohol suspects, who were about 100 feet, or a block and a half, away. Garcia saw one of the officers get "a little rough" with one of the men-the officer "sort of ... push[ edJ him"-so Garcia took out his camera and began video recording. Cross Mot. Sum. J. Ex. 2 (Garcia Deposition) at 30, ECF No. 63-4; Mot. Sum. J. Ex. 4 (Garcia Deposition) at 27, ECF No. 62-7.1 Garcia was video recording the scene with his Nikon Coolpix 7000, a camera capable of shooting both still photographs and video.
Garcia caught Grajeda's attention. Grajeda could see that Garcia had something in his hands, but could not identify what it was, and, in Grajeda's estimation, Garcia was "acting erratically." Mot. Sum. J. Ex. 2 (Grajeda Deposition) at 5, ECF No. 62-5. Garcia's supposed strange behavior "really concerned" Grajeda, in part because they were in a high-crime area. Id. Garcia, for his part, maintains that he was behaving normally. Grajeda pointed Garcia out to Officer Baxter, who had not noticed him because he was in the middle of writing a citation for one of the suspects. When Officer Baxter caught sight of him, Garcia was in a "very dark" section of the street, near an alleyway. Mot. Sum. J. Ex. 1 (Baxter Deposition) at 16, ECF No. 62-4. Garcia appeared to Officer Baxter to be trying to hide, behavior that Officer Baxter thought was "suspicious." Id. at 16-17.
1 Citations to exhibit page numbers are to the page numbers assigned by the Court's CM/ECF filing system.
3

By this point, it was getting dark. Officer Baxter, wanting to get a better view of Garcia, flashed his police cruiser's spotlight in Garcia's direction. Once Garcia was illuminated, Officer Baxter could see that he was holding what appeared to be a camera. Officer Baxter kept the spotlight on Garcia for about 10 seconds, while he evaluated whether Garcia posed a threat to the officers or nearby civilians. Officer Baxter determined that Garcia was not doing anything threatening, so he turned off the spotlight and returned to writing the citation. After being spotlighted, Garcia went back across the street, in front of Woomi. According to Grajeda, as Garcia ran across the street he was "belligerent" and was yelling. Mot. Sum. J. Ex. 2 at 10. Outside Woomi, Garcia put his camera down on a newspaper box-hoping for a more stable image-and continued to film.
At that time, Malik and Efigenia Rashid were sitting in a nearby parked car with the windows rolled up. Malik Rashid rolled down his window and politely asked Garcia what he was doing, to which Garcia responded, "keeping [them] honest." Mot. Sum. J. Ex. 4 at 32-33. By that point, the arrest seemed like a "routine" detention: the two alcohol suspects were seated on the curb, and the officers were no longer in physical contact with them. Jd at 40 .:.43.
Garcia stayed near the newspaper box, outside Woomi, for two to three minutes before he walked up the street towards the officers, stopping when he was directly across from them. Garcia continued to record what was happening, narrating the events into his camera. Officer Graves, however, asserts that Garcia was yelling at both the officers and the Civilian Alcohol Enforcement team, an assertion Garcia denies.
According to Officer Baxter, when Garcia set up across the street from them, he was standing in another dark area, prompting Officer Baxter to again shine his spotlight on Garcia to see what he was doing. Garcia then moved to a third location up the block, about 35 feet away
4

from the officers. As this was happening, Officer Graves began to feel that "something was [not] right." Mot. Sum. J. Ex. 8 (Graves Deposition) at 14. ECF No. 62-11. Garcia was drawing "all of o~r attention," leaving the officers "distracted" from the task of processing the alcohol suspects. Id. at 9. Officer Graves accordingly called for backup. II. The Arrest of Garcia
In response, Officer Christopher Malouf arrived on the scene. He spoke briefly with Officer Baxter, who informed him that there was "a subject across the street standing in the shadows" who "was possibly filming." Mot. Sum. 1. Ex. 14 (Malouf Deposition) at 5, ECF No. 62-17. Officer Baxter remarked that he could not see Garcia clearly, so was not sure ifhe "posed a threat or not," and that Garcia was "deterring" him from processing the alcohol suspects. Id. Officer Malouf walked in Garcia's direction, but because of the darkness, he could not actually see Garcia until he was about three to four feet away from him. Once he was near Garcia, Officer Malouf tried to ascertain what was going on, asking him, "Can I help you with anything?" and "Is there any way I can assist you?" Id. at 15.
Garcia asserts that when Officer Malouf approached him and asked him what he was doing, he promptly let go of his camera-which he had on a strap around his neck--opened up his hands to show Officer Malouf that he was not holding anything, and stated, in a normal tone of voice, "My name is Mannie Garcia and I'm with the press." Mot. Sum. J. Ex. 4 at 48, 50. Although Garcia let go of his camera, it was still recording. In response, Officer Malouf promptly declared, "That's it, you're under arrest." Id. at 50-51.
Officer Malouf, however, tells a very different story. He asserts that Garcia never identified himself as a member of the press. Instead, Garcia said "I have a right to be here" and "you can't tell me to move." Cross-Mot. Sum. 1. Ex 14 (Trial Transcript) at 55, ECF No. 63-16.
5

Garcia then "became disorderly," yelling curse words and refusing to answer questions. Mot. Sum. 1. Ex. 14 at 12. At that point, Officer Malouf moved closer to Garcia and warned him that if he did not calm down, he would arrest him for disorderly conduct. Rather than calming down, Garcia continued to yell and curse, at one point gesturing towards Officer Baxter while yelling, "This fucking guy." Id at 17-18. After trying to calm Garcia down for several minutes without success, Officer Malouf decided to arrest him for disorderly conduct, noting that everyone in the vicinity was now focused on Garcia.
At some point-whether before Officer Malouf decided to arrest Garcia or after is unclear--others also heard Garcia begin to yell. Efigenia Rashid heard Garcia yell so loudly that, although her car windows were rolled up, it distracted her from the game she was playing on her tablet. Officer Baxter heard Garcia yell, "And this fucking guy" while gesturing in his direction, Mot. Sum. 1. Ex. 1 at 19, while Grajeda heard Garcia yell, "[a]nd tell those fuckers to leave me alone, or I'm going to ... ," id Ex. 2 at 12. Officer Graves also heard Garcia yelling. Grajeda remembers Garcia "screaming and yelling" that he was with the press, id Ex. 2 at 13, while Williams heard Garcia yelling something about his First Amendment rights and identifying himself as a member of the press.
According to Garcia, when Officer Malouf arrested him, he promptly put Garcia into a choke hold and began to drag him across the street, towards his police cruiser, an assertion Officer Malouf disputes. While they were in the middle of the street, Officer Baxter came up, pulled Garcia's arms behind his back, and handcuffed him. As a result of the choke hold and being pulled by both officers, Garcia tripped over the curb, falling on his left knee and tearing his pants. As he was being held by the neck and dragged across the street, Garcia called out for his
6

wife and also yelled that Internal Affairs was "going to have a field day." Mot. Sum. J. Ex. 4 at 59,65.
Garcia further alleges that once they reached the cruiser, Officer Malouf shoved him against the side of the car, causing him to hit the cruiser with a "hard impact." Cross-Mot Sum. J. Ex. 2 at 58-59. Officer Malouf then patted Garcia down. As part of that process, Officer Malouf instructed Garcia to spread his legs. When Garcia did so, Officer Malouf kicked out Garcia's right foot, causing him to lose his balance and hit his head against the side of the cruiser before falling to the ground. While this was happening, Officer Malouf was mocking him, asking him why he was falling down, and then laughing at him with the other officers.
The officers dispute Garcia's allegations relating to the use of force. Specifically, Officer Malouf denies that he placed Garcia in a choke hold. Officer Baxter acknowledges that Garcia fell as the officers took him across the street, but asserts that Garcia deliberately went limp, in an effort to "fall to the ground unprompted." Mot. Sum. 1. Ex. 1 at 21. Officer Baxter further contends that once back at the cruiser, Garcia was "thrashing his body back and forth" against the cruiser, in an attempt to injure himself, prompting Officer Malouf to subdue Garcia by applying force to a pressure point on Garcia's neck. ld. at 22.
Meanwhile, Allen, Garcia's wife, began to approach the scene. Officer Baxter warned her to stay back or she would be arrested. Garcia claims that, in response to Allen's approach, Officer Baxter said, "If that fucking bitch takes one more step, I'm going to arrest her ass." Mot. Sum. J. Ex. 4 at 68. In response, Garcia yelled to Allen to stay back, prompting Officer Malouf to again apply force to a pressure point, pressing his thumb into Garcia's neck for about 10-15 seconds, causing Garcia to contort in pain and forcing his head into the side of the cruiser.
7

At some point during the arrest process, Garcia's camera was removed from around Garcia's neck, and Officer Baxter took control of it. Pursuant to department policy, Officer Baxter turned the camera off. He then placed it either in or on top of the cruiser.
Eventually, Officer Malouf placed Garcia in the cruiser and transported him to the police station. According to Garcia, while in the station parking lot, before taking Garcia inside, Officer Malouf was "fiddling" with Garcia's camera, pressing various buttons and opening various compartments, until he eventually found the video card. Mot. Sum. J. Ex. 4 at 70-71. Garcia contends that Officer Malouf removed the video card and placed it in his shirt pocket. Officer Malouf denies doing so. Officer Malouf took Garcia into the police station, then to the Central Processing Unit, where his belongings were inventoried, he was fingerprinted, and his mug shot was taken.
At about 3:30 a.m., Garcia was released from custody and picked up by his wife at the Central Processing Unit. While all of Garcia's other property was returned to him, the video card from his camera was not. Although Garcia contends that he was injured, he did not immediately seek medical attention. Instead, he went home because, at that point, all he wanted to do was shower and go to bed. In the days after his arrest, Garcia had bruising on his left knee as a result of the incident, but did not have bruises on his neck. III. Post-Arrest Events
On December 16, 2011, Garcia proceeded to a bench trial in the District Court for Montgomery County, Maryland on the charge of disorderly conduct. He was found not guilty.
Prior to that trial, Garcia filed a complaint with the MCPD Internal Affairs Division against Officers Baxter and Malouf about the events of June 16, 2011. After an investigation into Garcia's allegations, the MCPD took no disciplinary action against either officer. Garcia
8

contends that after he filed his Internal Affairs complaint, vanous MCPD officers began periodically to park near his house to observe and intimidate him. Specifically, Garcia alleges that during the week of December 6, 2011, the week preceding his trial on the disorderly conduct charge, he twice saw Officer Malouf parked in front of a house across the street from Garcia's home. That house had the same house number that Officer Malouf mistakenly entered as Garcia's address on the June 16, 2011 incident report. Both times, Garcia saw Officer Malouf remain there for 2-3 minutes, parked in such a way that his cruiser would not be visible to those inside of the house.
On March 19,2013, Garcia saw another such police cruiser, this one parked across and one house over from Garcia's home. Garcia began to video record the occupant, Officer Douglas Barros, because he believed the officer was there to observe him. Officer Barros contends that he was there doing paperwork, having just dealt with a disorderly conduct incident on a bus nearby. Officer Barros eventually noticed that Garcia was video recording him, which he thought was suspicious, since he had never before had someone film him doing paperwork. Officer Barros went over to Garcia to "check up" on him and asked Garcia if he needed any help. Cross Mot. Sum. J. Ex. 19 (Barros Deposition) at 10, ECF No. 63-21. In response, Garcia told Officer Barros that he did not need any help and accused him of harassment. Officer Barros gave Garcia the name and phone number of his supervisor, then departed. Garcia never contacted the supervisor because he "did not want to have any more contact with the Police." Cross Mot. Sum. J. Ex. 2 at 14.
Defendants deny that there was a police department campaign to observe and intimidate Garcia. According to Officers Baxter and Malouf, Garcia's street is a shortcut to University Boulevard, a major road, and Garcia's house is near a nursing home to which MCPD officers are
9

frequently called. If there was any regular police presence on Garcia's street, they contend, it was not because officers were there to intimidate Garcia, but because officers were using the shortcut or responding to nursing home calls.
Garcia was, however, a topic of conversation among officers. In the days prior to and during Garcia's disorderly conduct trial, Officers Baxter and Graves exchanged a series of text messages about those proceedings. Prior to the trial they discussed whether Garcia would take a guilty plea, with Officer Graves remarking that he "hope[ d]" Garcia would "take community service," to which Officer Baxter replied that he though they "ha[d] a solid case." Cross Mot. Sum. J. Ex. 22 at 2, ECF No. 63-24. During the trial, Officer Graves texted Officer Baxter that Officer Malouf, after seeing a "liquor guy" testify, declared that the case was "all bullshit." Id. At some point, Officers Baxter and Graves joked about going drinking with Garcia, with Officer Baxter suggesting they "[d]o a couple saki bombs then go be disorderly," and Officer Graves
adding that they could then "make up a story to make millions and never work again." Id at 3.
After Garcia filed his civil suit, Officers Baxter and Graves again exchanged messages, with Officer Graves informing Officer Baxter that the suit had been filed and, in response to Officer Baxter's request, that he had emailedhim a link to a news story about the case. Id.at 4. IV. Procedural History
On December 7,2012, Garcia filed suit in this Court against Officers Baxter, Graves, and Malouf, Montgomery County, Police Chief Thomas Manger, and Lieutenant Mark Sheelor,
alleging eight causes of action: (I) a 42 U.S.C. 9 1983 ("9 1983") claim for violation of his First
and Fourteenth Amendment rights based on his allegation that he was arrested for video
recording police activity; (II) a 9 1983 claim for First Amendment retaliation; (III) a 9 1983
claim for violation of his Fourth and Fourteenth Amendment rights based on the allegation that
10

he was arrested and had his property seized without probable cause; (IV) a S 1983 claim pursuant
to Monell v. Department o/Social Services o/the City o/New York, 436 U.S. 658 (1978), against
Montgomery County only; (V) a claim under the Privacy Protection Act, 42 U.S.C. S 2000aa et
seq.; (VI) a common law false arrest and false imprisonment claim; (VII) a common law malicious prosecution claim; and (VIII) a common law battery claim against Officer Malouf only. All individual defendants were sued in both their individual and official capacities, with the exception of Chief Manger and Officer Graves, who were sued in their official capacities only.
On August 23,2013, after Defendants moved to dismiss the Complaint, the Court (Motz, J.) issued a Memorandum Opinion dismissing various defendants and claims, and bifurcating some claims. ECF No. 15. Specifically, the Court dismissed (1) all claims against Officer Graves and Lt. Sheelor; (2) all claims against Officer Baxter, except the First Amendment and retaliation claims; (3) the false arrest/false imprisonment and malicious prosecution claims against Montgomery County and Chief Manger; (4) the Privacy Protection Act claim against all defendants except Montgomery County; and (5) all claims against officers in their official capacity, except for Chief Manger. The Court bifurcated for purposes of discovery (1) all remaining claims against Montgomery County, with the exception of the Privacy Protection Act claim, and (2) all claims against Chief Manger.
On January 20, 2015, Defendants filed a Motion for Summary Judgment. ECF No. 62. On February 19, 2015, Plaintiffs filed a Cross-Motion for Summary Judgment, to which Defendants responded on March 24, 2015. ECF Nos. 63 & 64. Plaintiffs filed a Reply Memorandum on April 23, 2015. ECF No. 65. The Court heard oral argument on September 9, 2015.
11

DISCUSSION

For purposes of the pending summary judgment motions, the claims and defendants at

issue are: (1) the First Amendment claims in Count I against Officer Baxter and Officer Malouf;

(2) the First Amendment retaliation claim in Count II against Officer Baxter and Officer Malouf;

(3) the Fourth Amendment claim in Count III against Officer Malouf; (4) the Privacy Protection

Act claim in Count V against Montgomery County; (5) the false arrest and false imprisonment

claim in Count VI against Officer Malouf; (6) the malicious prosecution claim in Count VII

against Officer Malouf; and (7) the battery claim in Count VIII against Officer Malouf.

Defendants seek summary judgment on all of these claims. Garcia, in his cross motion, seeks

summary judgment on Counts I (First Amendment), III (Fourth Amendment), VI (false arrest/false imprisonment), and VII (malicious prosecution).

I.

Legal Standards

A. Summary Judgment

Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the

moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court must believe the evidence of the non-moving party, view the facts in the light most favorable to the nonmoving party, and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The nonmoving party has the burden to show a genuine dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "A material

fact is one that might affect the outcome of the suit under the governing law." Spriggs v.

12

Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson, 477 U.S. at 248) (internal quotation marks omitted). A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49.
"When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits 'to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris, Inc. v. Harshbarger, 122 F.3d 58, 62 nA (1st Cir. 1997)).
B. Qualified Immunity Officers Baxter and Malouf move for summary judgment on the basis that they are entitled to qualified immunity. Government officials sued in their individual capacities, as these officers are here, may invoke the protection of qualified immunity to bar a claim for civil
damages under 42 U.S.C. S 1983. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified
immunity shields government officials from liability for conduct that "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. The doctrine "balances two important interests-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." Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because of the latter interest, qualified immunity protects police officers and public officials from claims of constitutional violations that arise from "reasonable mistakes as to the legality of their actions." Saucier v. Katz, 533 U.S. 194, 206 (2001). It leaves unprotected only "the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224,229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
13

The qualified immunity analysis can be separated into two inquiries: (1) whether the facts alleged, "[t]aken in the light most favorable to the party asserting the injury, ... show the officer's conduct violated a constitutional right," and (2) whether the right at issue "was clearly established in the specific context of the case-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." Merchant v. Bauer, 677 F.3d 656, 662 (4th Cir. 2012) (citations and brackets omitted). Although courts may consider the two inquiries in whatever sequence best suits the "circumstances in the particular case at hand," Pearson, 555 U.S. at 236, it is preferable to consider first whether the conduct at issue violated a constitutional right because such determinations advance "the law's elaboration from case to case" by setting forth principles that can later become the basis for a holding that a right is clearly established. Saucier, 533 U.S. at 201; Pearson 555 U.S. at 236 (stating that the Saucier approach, though not mandatory, "is often beneficial").
As for the second prong, "[a] right is clearly established only if its contours are sufficiently clear that 'a reasonable official would understand that what he is doing violates that right. '" Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "In other words, 'existing precedent must have placed the statutory or constitutional question beyond debate. '" Id. (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)). In determining whether a right is clearly established, it is not necessary for a court to have previously considered the exact facts at issue, or that there be a case involving "fundamentally similar" facts, so long as "in light of the pre-existing law the unlawfulness [is] apparent." Hope v. Pelzer, 536 U.S. 730, 739 (2002). Thus, "officials can still be on notice that their conduct violates established law even in novel factual circumstances," as long as the law
14

gave the defendant official "fair warning" that the conduct was unconstitutional. Id. at 740-41. Furthermore, because the issue is whether an official should have known that his conduct violated a constitutional right, whether a right is "clearly established" for purposes of qualified immunity must be determined in light of the law at the time the contested action was taken. Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012). II. First Amendment Claims
In Count I of his Complaint, Garcia asserts that Officers Baxter and Malouf violated his First Amendment rights in two ways: (1) by arresting him for video recording police in the public performance of their duties; and (2) by confiscating his video card and never returning it. Garcia seeks compensatory damages and a declaratory judgment that his First Amendment rights were violated. Officers Baxter and Malouf move for summary judgment on Count I on the basis qualified immunity. For his part, Garcia cross-moves for summary judgment on Count I, claiming that his arrest and the seizure of his video card violated the First Amendment as a matter of law.
A. Arrest for Video Recording Police Activity Officers Baxter and Malouf claim qualified immunity from a damages claim relating to the alleged arrest of Garcia for video recording police activity because, they assert, (1) they did not violate any constitutional right to video record police activity; or (2) even if there was such a violation, the right to record public police activity was not "clearly established" at the time ofthe incident on June 16, 2011. Although the Court finds that there is a constitutional right to video record public police activity, it concludes that the right was not clearly established in this jurisdiction at the time of the incident, and so grants qualified immunity to the officers on the First Amendment damages claim.
15

1. Violation of the First Amendment Garcia asserts that the officers violated his First Amendment right to video record police officers in the routine public performance of their duties. The United States Supreme Court has not yet spoken on whether this is a right protected by the First Amendment, but two lines of Supreme Court precedent, read together, make clear that journalists and citizens alike have such a right. First, the Supreme Court has stated, in the context of journalists seeking access to nonpublic government information, that "[t]here is an undoubted [First Amendment] right to gather news 'from any source by means within the law.''' Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972)). In Houchins, an inmate at a local prison committed suicide, a newsworthy event, which prompted journalists to seek information about conditions inside the facility. Id. at 3. The right to film police officers in the public performance of their duties is certainly suggested, but not wholly established, by the First Amendment right to gather news. Here, the right at issue is of a broader scope than the right of journalists to follow a newsworthy story. It is the right to record something that is not itself newsworthy-police officers in the routine performance of their duties-but that may become newsworthy. This latter aspect of the right implicates a second line of Supreme Court cases. The Supreme Court has held that the protection and promotion of "the free discussion of governmental affairs" is a paramount First Amendment interest. Mills v. Alabama, 384 U.S. 214, 218 (1966). Significant to that right, indeed of "highest importance," are the aims of "preventing corruption and sustaining the active alert responsibility of the individual citizen in a democracy for the wise conduct of government." First Nat 'I Bank of Boston v. Bellotti, 435 U.S. 765, 78889 (1978). Thus, recording governmental activity, even if that activity is not immediately
16

newsworthy, has the potential to prevent government abuses through scrutiny or to capture those abuses should they occur. As Garcia stated, recording police activity enables citizens to "keep them honest," an undertaking protected by the First Amendment.
The United States Court of Appeals for the Fourth Circuit has not addressed in a published opinion whether there is a First Amendment right to record public police activity. However, other circuits confirm that this right exists. In a case with similar facts, the United States Courts of Appeals for the First Circuit relied on these two strands of Supreme Court precedent to hold that a citizen who recorded on his cell phone both video and audio of police officers arresting an individual on the Boston Common, the nation's oldest public park, had a First Amendment right to record the arrest. Glik v. CunnijJe, 655 F.3d 78, 82 (1st Cir. 2011). The First Circuit reasoned that, "[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs." Id. (internal quotation marks and citation omitted); see also Gericke v. Begin, 753 F.3d 1, 7-8 (1st Cir. 2014) (holding that an arrest of a citizen for illegal wiretapping when she recorded a traffic stop without interfering with the police activity violated her First Amendment rights).
Likewise, in American Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012), the United States Court of Appeals for the Seventh Circuit enjoined the enforcement of a state anti-eavesdropping statute against the audiovisual recording of police officers performing their duties in public because "[a]udio recording is entitled to First Amendment protection," and such protection includes "prohibit[ing] government from limiting the stock of information from which members of the public may draw." Id. at 597 (quoting First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978». Other circuits, too, have found a general First Amendment
17

right to record the public activities of police officers and government officials. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (lIth Cir. 2000) (holding that plaintiffs "had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct"); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a "First Amendment right to film matters of public interest" in a case where police officers interfered with a citizen seeking to film a public demonstration directed in part against the police). But see Kelly v. Borough of Carlisle, 622 F.3d 248, 262-63 (3d Cir. 2010) (holding, for purposes of qualified immunity, that it was not clearly established that citizens have a First Amendment right to videotape a traffic stop).
Thus, based on the Supreme Court precedent finding First Amendment rights to gather the news and to engage in free discussion of governmental affairs to advance the wise and honest conduct of government, as well as the precedent from other circuits explicitly finding a First Amendment right to record public police activities, this Court finds that video recording of police activity, if done peacefully and without interfering with the performance of police duties, is protected by the First Amendment. As discussed below, there is a genuine issue of material fact whether Officers Baxter and Malouf violated that right when they arrested Garcia. See infra Part II.C.
2. Clearly Established Right Although the Court finds a constitutional right to video record public police activities, Officers Baxter and Malouf would still be entitled to qualified immunity if that right was not clearly established at the time of the incident in June 2011.2 The Fourth Circuit has held that to
2 Garcia asserts that because the Court (Motz, J.) stated at the Motion to Dismiss stage that the right to film law enforcement officers in the public discharge of their duties is a "well-
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determine whether a right was clearly established at the time of the alleged violation, courts
"need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest
court of the state in which the case arose." Edwards v. City o/Goldsboro, 178 F.3d 231,251
(4th Cir. 1999). Thus, "[i]f a right is recognized in some other circuit, but not in this one, an
official will ordinarily retain the immunity defense." Id.
Here, none of delineated controlling sources clearly establish that, as of 2011, citizens
had a right to record police officers in the routine public performance of their duties. As
explained above, the Supreme Court has not spoken directly on the issue. The Fourth Circuit, in
its only foray into this area, affirmed in an unpublished opinion a district court's determination
that "the right to record police activities on public property was not clearly established in this
circuit at the time of the alleged conduct" and did not opine one way or the other on whether
such a First Amendment right exists. Szymecki v. Houck, 353 F. App'x 852, 853 (4th Cir. 2009).
Thus, as of the incident in 2011, and even today, the Fourth Circuit has not provided police
officers with fair warning that it is unconstitutional to stop someone from video recording the
police in the routine public performance of their duties. Nor has the Maryland Court of Appeals weighed in on the issue.
established liberty safeguarded by the First Amendment," Mem. Op. at 6, ECF No. 20 (quoting Glik v. Cunniffe, 655 F.3d 75, 85 (1st Cir. 2011)), it is the law of the case that such a right is clearly established for purposes of qualified immunity. However, the law of the case doctrine does not apply here because in resolving Defendants' Motion to Dismiss, the Court did not squarely address the issue whether Officer Baxter and Officer Malouf had qualified immunity. See Mem. Op. at 5-6; MacDonald v. Moose, 710 F.3d 154, 161 n.l0 (4th Cir. 2013) ("[T]he doctrine of law of the case restricts a court to legal decisions it has made on the same issues in the same case."). Furthermore, any ruling on qualified immunity at the motion to dismiss stage does not necessarily preclude revisiting the issue at the summary judgment stage. Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (stating that "the relevant factors bearing upon the [qualified immunity] question will be different on summary judgment than on an earlier motion to dismiss.").
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Despite this dearth of controlling case law, Garcia argues that the right was clearly established at the time of the events at issue because the right is self-evident from existing Supreme Court case law. In particular, he invokes the First Circuit's opinion in Glik, which concluded that a First Amendment right to film public police activities was clearly established, based in part on the two lines of Supreme Court cases discussed above. Crucially, however, the First Circuit did not base its conclusion solely on its analysis of general Supreme Court principles; rather, it also relied heavily on its own prior case, Iacobucci v. Boulter, 193 F.3d 14 (l st Cir. 1999), in which the court found that a journalist who was arrested for disorderly conduct after refusing to stop filming a meeting of a historic district commission had been acting "in the exercise of his First Amendment right," and that the officer "lacked any authority to stop" the filming. Glik, 655 F.3d at 83 (citing Iacobucci, 193 F.3d at 25). Thus, by the time of Glik, the First Circuit had laid the groundwork for the determination that the right to film police officers in the public performance of their duties is a clearly established right under the First Amendment. 3 No such legal trail exists in Supreme Court or Fourth Circuit precedent.
The fact that, in 2011, the Montgomery County Police Department had a policy on media relations directing that "to the extent possible, members of the media should be treated as invited guests at incident scenes," and that "no police officer shall take any action to prevent or interfere with the news media in photographing or televising an event," does not alter the analysis. CrossMot. Sum. 1. Ex. 11 at 1-2, ECF No. 63-13. A public relations mandate from one's employer, designed to "enhance [the Department's] image and reputation," is not the same as a constitutional right. Id. While Officers Baxter and Malouf might have been aware of what the
3 Notably, Glik was decided on August 26, 2011, more than two months after the June 16,2011 incident, and thus could not itself contribute to a finding that a First Amendment right to record public police activities was clearly established at the time of the relevant events.
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media could be invited to do, that knowledge is not a substitute for a clear understanding of what the media or individual citizens have a right to do in terms of recording police activity.
As discussed above, based on the fairest reading of Supreme Court precedent, and the great weight of authority from other circuits, it seems fairly well-settled in 2015 that there is a First Amendment right to video record police officers as they carry out their public duties. But the Fourth Circuit has specifically identified the sources from which a clearly established right can be identified, and as of 201 I-and still today-none of the three identified courts has held that citizens have a right to record police officers as they perform their routine duties. Indeed, the Fourth Circuit, albeit in an unpublished opinion, expressly stated that this right is not clearly established. Szymecki, 353 F. App'x at 853. Thus, the Court must conclude that the right to record police officers in the routine public performance of their duties was not clearly established in this Circuit at the time of the events at issue in this case. Officers Baxter and Malouf are therefore entitled to qualified immunity from a suit for damages on this aspect of Garcia's First Amendment claim.
B. Seizure of the Video Card Garcia also alleges that his First Amendment rights were violated because Officer Malouf removed Garcia's video card from his camera, presumably in order to prevent disclosure of its contents, and never returned it. Garcia's First Amendment claim is alleged against both Officers Baxter and Malouf. However, when the facts are construed in Garcia's favor, they establish that Officer Malouf alone purposefully examined Garcia's camera to try to locate the video card, that he found the video card and removed it, and that he then never returned that video card to Garcia. There are no facts connecting Officer Baxter to seizure of the video card. Officer Baxter is therefore entitled to summary judgment on this aspect of Garcia's First Amendment claim.
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Officer Malouf seeks summary judgment on this aspect of Garcia's claim, again on the basis of qualified immunity. He does not offer an independent basis for this contention, instead recycling his assertion that, at the time of the incident, there was no clearly established First Amendment right to record police "in a manner which interfered with police operations." Mot. Sum. J. at 29. Officer Malouf proceeds as if the questions whether there is a First Amendment right to record police activity, and whether there is a First Amendment right not to have any such recording seized in order to prevent the dissemination of its content, are effectively the same. These questions, however, are distinct enough to require separate consideration of whether Officer Malouf has qualified immunity for Garcia's First Amendment claim relating to the seizure of the video card. As set forth below, the Court finds that the First Amendment protects against the seizure of a recording of police activity in order to prevent its public dissemination, but concludes that the right was not clearly established in this jurisdiction at the time of the incident, and so grants qualified immunity to Officer Malouf on this aspect of Garcia's First Amendment damages claim.
1. Violation of the First Amendment In Roaden v. Kentucky, 413 U.S. 496 (1972), the Supreme Court navigated the intersection between the First and Fourth Amendments and determined that when an officer seizes material that "arguably" falls within First Amendment protection, and does so "without the authority of a constitutionally sufficient warrant," then that seizure is "plainly a form of prior restraint." Id. at 504 (finding that police seizure of an adult film believed to be obscene was an unconstitutional prior restraint). A prior restraint of "speech [or] publication" is the "most serious and the least tolerable infringement on First Amendment rights. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).
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In Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003), the Fourth Circuit applied this principle to the context of police activity. In Rossignol, Sheriffs Department deputies, on the eve of an election, purchased all available copies of a newspaper that had been critical of the Sheriffs Department. Id. at 519-21. The Fourth Circuit held that the deputies' "seizure" of the newspaper had "clearly contravened the most elemental tenets of First Amendment law." Id. at 521. The deputies had "suppress[ ed]" the paper because "they disagreed with its viewpoint," making their violation of the First Amendment "all the more blatant." Id.
Here, as discussed above, the video recording of public police actions is an activity protected by the First Amendment, so it follows that the recording itself is First Amendmentprotected material akin to a film or written publication. Following the reasoning of Roaden and Rossignol, the seizure of the recording, if done for the purpose of preventing the dissemination of the information on the recording, would constitute an unconstitutional prior restraint. See Roaden, 413 U.S. at 504; Rossignol, 316 F.3d at 521. The Court therefore holds that the First Amendment protects against the seizure and retention of a video recording of public police activities if the seizure was for the purpose of preventing the public dissemination of the contents of that recording.
When the evidence is viewed in the light most favorable to Garcia, a reasonable jury could conclude that Officer Malouf engaged in just such an unlawful prior restraint. Garcia asserts that Officer Malouf, after observing Garcia taking video of the police action of arresting two suspects, removed the video card from Garcia's camera, put it in his pocket, and never returned it. There is also evidence, from Garcia's testimony and that of Grajeda and Williams, that Garcia informed the officers that he was a member of the press. These two facts together support the inference that Officer Malouf, knowing Garcia was a journalist, saw the potential for
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the recording to be circulated and thus seized and kept the video card to ensure that such circulation could not occur. If true, such a seizure would constitute an unconstitutional prior restraint and would violate the First Amendment.
2. Clearly Established Right As noted above, based on Supreme Court and Fourth Circuit precedent predating 2011, it was clearly established that government officials, including police officers, violate the First Amendment if they seize newspapers, films, or other First Amendment-protected materials in order to prevent the dissemination of their content. See Roaden, 413 U.S. at 504; Rossignol, 316 F.3d at 521. However, under this precedent, the Court cannot conclude that Officer Malouf had "fair warning" that his actions violated Garcia's First Amendment rights. Both Roaden, which involved police seizing an adult film to prevent its public showing, and Rossignol, which involved a law enforcement effort to prevent the distribution on Election Day of newspapers containing information critical of candidates supported by the sheriff s department, involved quintessential First Amendment material. See Roaden, 413 U.S. at 504; Rossignol, 316 F.3d at 521. In fact, the films in Roaden and the newspapers in Rossignol were items already intended for and in public circulation, but which were taken out of circulation by law enforcement. Here, however, Garcia's recording was not of something newsworthy-the kind of recording almost certain to enter public circulation-but a recording made on the chance that something newsworthy might happen. There is therefore no easy analogy to be drawn between Roaden and Rossignol and the facts in this case. Although a right may be clearly established even in the absence of case law involving the exact or "fundamentally similar" facts, Hope, 536 U.S. at 739, and "officials can still be on notice that their conduct violates established law even in novel factual circumstances," id. at 740-41, the scenario at issue here differs from the
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controlling case law in one material way: the seized item was not one that was clearly protected by the First Amendment. Because it was not clearly established in the Fourth Circuit in 2011 that recording routine police activity was protected by the First Amendment, it also could not have been clearly established in 2011 that the product of that recording was entitled to the same First Amendment protections applicable to newspapers and films sold or displayed to the public. To be sure, under Garcia's version of events, it would be difficult to justify the seizure and retention of the video card as constitutional. But, as discussed below, the well-traveled path to that conclusion runs through the Fourth Amendment, not the First Amendment. See infra Part IV.B. Thus, the Court grants qualified immunity to Officer Malouf on the First Amendment damages claim relating to the seizure of the video card.
Because the Court finds that that the officers are entitled to qualified immunity on Count I, Defendants' motion for summary judgment on the claim for damages is granted, and Garcia's cross motion for summary judgment on the same issue is denied.
C. Declaratory Judgment In Count I, Garcia also seeks a declaratory judgment that his arrest "for video-recording police activity in a public location" and "the permanent deprivation of the video card" violated his First Amendment rights. Compl. at 22; Cross Mot. Sum. J. at 10. The Court's finding that the officers are entitled to qualified immunity does not resolve this issue because qualified immunity protects government officials only from claims for damages. Harlow v. Fitzgerald, 457 U.S. 800, 818, 819 n. 34 (1982) (holding that qualified immunity shields government officials from "liability for civil damages" and "express(ing] no view as to the conditions in which injunctive or declaratory relief might be available"); see Pearson v. Callahan, 555 U.S.
223, 242 (2009) (stating that the defense of qualified immunity is "not available" in "9 1983
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cases where injunctive relief is sought instead of or in addition to damages"); Wood v.
Strickland, 420 U.S. 308, 314 n. 6 (1975) (noting, in the context of absolute immunity in a 9
1983 case, that "immunity from damages does not ordinarily bar equitable relief as well"); Young v. Lynch, 846 F.2d 960, 962 (4th Cir. 1988) (noting, in deciding whether an order denying qualified immunity is immediately appealable, that "an official who is granted qualified immunity from liability from damages probably will remain in the case as trial proceeds on the equitable issues").
Claims in federal court for a declaratory judgment are governed by the Declaratory
Judgment Act, 28 U.S.C. 9 2201. "[D]istrict courts have discretion in determining whether and
when to entertain an action under the Declaratory Judgment Act." Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995) (citing Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 494 (1942)). There is "nothing automatic or obligatory about the assumption of jurisdiction by a federal court to hear a declaratory judgment action." Id. at 288 (internal quotation marks and citation omitted). Instead, a district court should hear a declaratory judgment action "when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue," Centennial Life Ins. Co. v. Poston, 88 F.3d 255, 256 (4th Cir. 1996), but only when doing so is the prudent course in light of "considerations of practicality and wise judicial administration," Wilton, 515 U.S. at 288.
Here, resolving Garcia's declaratory judgment claim serves a useful purpose. A finding whether the officers' actions violated the First Amendment may facilitate the resolution of the bifurcated claim against Montgomery County in which Garcia seeks injunctive relief requiring a new policy to prevent First Amendment violations. At the same time, practicality and wise judicial administration also weigh in favor of hearing Garcia's declaratory judgment claim.
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Certainly, if this were the only remaining claim, or if it were expected that other related claims would be resolved in a different forum, it may not be appropriate to expend judicial resources to conduct a trial to resolve it. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942) (holding that the district court did not abuse its discretion in declining to exercise jurisdiction under the Declaratory Judgment Act because "another proceeding was pending in a state court in which all the matters in controversy between the parties could be fully adjudicated"); Centennial, 88 F.3d at 256 (noting that a declaratory judgment action should "not be used to try a controversy by piecemeal, or to try particular issues without settling the entire controversy") (internal quotation marks and citation omitted)). But, as discussed below, all of Garcia's other claims will need to go before a trier of fact for resolution. Because the ensuing litigation on those claims involves the same parties and evidence at issue in Garcia's First Amendment claims, the additional resources required to resolve the declaratory judgment claim at the same time would be quite limited. The Court, in an exercise of its discretion, thus chooses to entertain Garcia's declaratory judgment claim contained in Count I of the Complaint.
Having determined that it is appropriate to hear Garcia's declaratory judgment claim, the Court turns to whether summary judgment on that claim is appropriate. Although the Court has held that citizens have a First Amendment right to video record public police activities, and that confiscation of a video card or other recording of such police activity would violate the First Amendment, there remain several genuine issues of material fact relating to Garcia's specific claim that, in this case, Officers Baxter and Malouf violated those rights. Garcia asserts that up until his arrest, he was calm and cooperative and so concludes that Officer Malouf must have arrested him because he was recording police activity, in violation of his First Amendment rights. Officer Malouf asserts that when he approached Garcia, Garcia immediately became
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belligerent and, despite Officer Malouf s repeated efforts and warnings to get him to calm down, only became more disruptive and combative. According to Officer Malouf, he arrested Garcia not for filming police activity, but for disturbing others around him. Likewise, although Garcia asserts that Officer Baxter's spotlighting of him multiple times, including after he had determined that Garcia was holding a camera and posed no threat to him or the other officers on the scene, interfered with his First Amendment right to record the police activity, Officer Baxter maintains that he trained his spotlight on Garcia out of safety concerns. According to Baxter, Garcia repeatedly positioned himself in dark areas, making it difficult, if not impossible, for Baxter or other officers to see what he was doing or what he was holding. Thus, there are genuine issues of material fact relating to whether Officers Baxter and Malouf interfered with Garcia's First Amendment rights. To make a determination on whether the officers violated Garcia's First Amendment rights before and during his arrest would require a trier of fact to sift through and weigh these opposing factual accounts.
As for Garcia's First Amendment claim relating to the seizure of the video card, little needs to be said. Garcia insists that Officer Malouf took the card and did not return it. Officer Malouf denies the allegation. If the card was not seized, there would be no First Amendment violation. Plainly, no declaratory judgment is possible without presenting that issue to a trier of fact.
Because of these genuine issues of material fact, the Court denies summary judgment to Defendants and Garcia on the claim for a declaratory judgment that the arrest of Garcia and the seizure of his video card violated his First Amendment rights.
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III. First Amendment Retaliation Claim In Count II, Garcia alleges that Officers Baxter and Malouf retaliated against him for
filing a complaint with the MCPD Internal Affairs Division and for filing this lawsuit, in violation of Garcia's First Amendment rights. The officers seek summary judgment on this claim, asserting that (1) Garcia does not have a First Amendment right to file an Internal Affairs complaint or this lawsuit; (2) Garcia has failed to allege facts sufficient for a reasonable jury to find in his favor on a retaliation claim; and (3) any right was not adversely impacted because Garcia was not deterred from filing his Internal Affairs complaint or this lawsuit.
The First Amendment right of free speech "includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right." Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). "Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights." Am. Civil Liberties Union ofMd., Inc. v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir. 1993). A plaintiff seeking to recover on a First Amendment retaliation claim must prove the following: (1) the plaintiff engaged in protected First Amendment activity, (2) the defendants took some action that adversely affected the plaintiff's First Amendment rights, and (3) there was a causal relationship between the protected activity and the defendants' conduct. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005).
The first element presents a pure question of law. Contrary to Defendants' assertion, Garcia's filing of an Internal Affairs complaint and this lawsuit are activities protected by the First Amendment. Citizens have a First Amendment right "to appeal to courts and other forums established by the government for resolution of legal disputes." Borough of Duryea, Pa. v.
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Guarnieri, 131 S. Ct. 2488, 2494 (2011). This right of private citizens to petition for the redress of grievances "extends to all departments of the Government," particularly, as here, when the grievance is a matter of public concern because it involves allegedly unlawful actions of police officers. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,510 (1972); see Constantine, 411 F.3d at 499 (holding that the plaintiffs complaints about her exams to administrators at her public law school, which she later reiterated in the law school newspaper, were protected First Amendment activity); see also Gable v. Lewis, 201 F.3d 769, 771 (6th Cir. 2000) (citing California Motor Transport in determining that a tow truck company owner had a First Amendment right to file a complaint with "nonjudicial public agencies like a police department," specifically with the state Highway Patrol, regarding sex discrimination in the assignment of towing jobs). Garcia thus satisfies the first element.
On the second element, Defendants assert that Garcia "has developed no facts to support his theory of retaliation." Mot. Sum 1. at 32. Garcia, however, has presented such facts as to Officer Malouf. In his response to Defendants' interrogatories, Garcia stated that during a oneweek period in early December 2011, which was around the time of his trial on the disorderly conduct charge, he twice saw Officer Malouf parked across the street from his home, in front of the house that Officer Malouf had "mistakenly entered as [Garcia's] address" on the June 16, 2011 police report. Cross-Mot. Sum. J. Ex. 5 at 7-8. While Officer Malouf points out that Garcia's street is a frequently used shortcut and also that officers are regularly called to a nearby nursing home, those responses do not explain why Officer Malouf parked on Garcia's street, rather than driving through or parking at the nursing home. Nor do they explain why, as Garcia alleges, Officer Malouf would be twice parked in the same spot, a spot right outside the address he had recorded as Garcia's.
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Garcia also asserts that since he began pursuing his complaints related to this incident, he has seen other police cruisers parked in front of his home on more than one occasion. For example, he has video evidence that on March 19, 2013, Officer Barros was parked on his street, in a location near where he had seen Officer Malouf. Officer Barros has stated that he was there to do paperwork, but he told Garcia that he wanted to "check up on" him. Cross Mot. Sum. J. Ex. 19 at 8-9. Although Garcia has no evidence specifically linking Officer Malouf to Officer Barros, his interaction with Officer Barros provides additional support for his claim that Officer Malouf, with the help of other MCPD officers, engaged in a coordinated effort to intimidate him. Officer Malouf may well contend that he never parked on Garcia's street, or that he had a reason to park there unrelated to Garcia, but it is for a trier of fact to determine who is credible on that score.
The second element also requires that the alleged retaliatory action adversely affect the plaintiff's First Amendment rights. Defendants assert that because Garcia actually filed his Internal Affairs complaint and the instant lawsuit, he cannot show that any alleged retaliatory actions adversely affected his First Amendment rights. This argument requires little attention. "[A] plaintiff need not actually be deprived of ... First Amendment rights in order to establish First Amendment retaliation." Constantine, 411 F.3d at 500. The test is an objective one: an action adversely affects a plaintiff's First Amendment rights if the action "would likely deter a person of ordinary firmness from the exercise of First Amendment rights." Id. (internal quotation marks and citation omitted). Under Garcia's account, he twice saw Officer Malouf sitting in a parked police cruiser across the street from the house that Officer Malouf likely believed to be where Garcia lived, and he saw a number of other police officers do the same, including Officer Barros, who remarked to Garcia that he was there to "check up" on him.
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Viewed in the light most favorable to Garcia, this gratuitous show of uninvited law enforcement interest, if true, would certainly be enough to chill others from lodging complaints against police officers.
The third element of the retaliation claim, that there was a causal relationship between the plaintiffs activity and the defendant's conduct, generally requires that the defendant was aware of the protected activity and that there was some sort of temporal proximity between the protected activity and the alleged retaliation so as to suggest a causal connection. Constantine, 411 F.3d at 501. Defendants do not claim that there was a lack of temporary proximity. Rather, their argument on causation largely folds into the arguments on the second element. They contend that to the extent police officers drive down Garcia's street, it is likely because that street is on the way to and from a nursing home or other locations to which Montgomery County Police Officers are regularly called. Again, Officer Malouf provides no explanation for why he or other officers would park in front of Garcia's house rather than simply pass by en route to other locations. Regardless, whether Malouf parked in front of Garcia's house and whether he did so in order to retaliate for Garcia's complaints are genuine issues of material fact not to be resolved on summary judgment.
Although the Court finds sufficient evidence to support a retaliation claim against Officer Malouf, it does not find such evidence relating to Officer Baxter. Unlike for Officer Malouf, Garcia has no evidence that Officer Baxter ever parked outside of Garcia's home. The only direct evidence involving Officer Baxter that arguably relates to retaliation are text messages between Officers Baxter and Graves in which they discuss Garcia's criminal prosecution and Garcia's later lawsuit. While these text messages show that Garcia was a topic of discussion between those officers, that is all they show. There is no mention of a plan to make their
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presence known on Garcia's street or otherwise to harass him. In the absence of anything directly tying Officer Baxter to any retaliatory activity, Garcia's evidence that other officers parked outside his home cannot be the basis for establishing a retaliation claim against Officer Baxter. Garcia himself essentially recognizes this deficiency, arguing that it "would not be a far leap for the jury to infer" that Officer Baxter's texts about Garcia indicate his involvement in "a broader effort at attempted retaliation." Cross Mot. Sum. J. at 42. On summary judgment, however, "[i]t will not do to presume the missing facts," yet such a presumption is precisely what is involved in the leap that Garcia proposes. Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888-89 (1990) (stating that "general averments" are not enough to create a material dispute of fact). The Court therefore grants the Motion for Summary Judgment on the retaliation claim as to Officer Baxter, but denies it as to Officer Malouf. IV. Fourth Amendment Claim
In Count III, Garcia asserts that his arrest and the seizure of his camera and video card violated the Fourth Amendment because Officer Malouf lacked probable cause to arrest him for disorderly conduct or any other charge. Officer Malouf seeks summary judgment on this Claim, asserting that the undisputed facts establish that he had probable cause to arrest Garcia for a Maryland criminal offense, either hindering an arrest or second-degree assault, and that even if he lacked probable cause for the arrest, he is entitled to qualified immunity on the Fourth Amendment claim. Garcia, for his part, seeks summary judgment in his favor, arguing that as a matter of law there was no probable cause to arrest him for disorderly conduct, hindering an arrest, or second-degree assault, such that his arrest, and the seizure of his camera and video card incident to that arrest, were unconstitutional.
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A. Probable Cause to Arrest With limited exceptions, "seizures are reasonable only if supported by probable cause."
Dunaway v. New York, 442 U.S. 200, 214 (1979) (internal quotation marks omitted). An officer has probable cause for an arrest when "facts and circumstances within the officer's knowledge would warrant the belief of a prudent person that the arrestee had committed or was committing an offense." United States v. Manbeck, 744 F.2d 360,376 (4th Cir. 1984) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). As the term implies, probable cause involves "probabilities," the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id. (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). Thus, probable cause requires more than mere suspicion, but less than proof beyond a reasonable doubt. See Wong Sun v. United States, 371 U.S. 471, 479 (1963). "The question to be answered is whether an objectively reasonable police officer, placed in the circumstances, had a 'reasonable ground for belief of guilt' that was 'particularized with respect to the person to be searched or seized.'" United States v. Humphries, 372 F.3d 653, 657-58 (4th Cir. 2004) (quoting Maryland v. Pringle, 540 U.S. 366, 372-73 (2003)). The arresting officer's belief need not be correct or even more likely true than false, so long as it is reasonable. Texas v. Brown, 460 U.S. 730, 742 (1983). Furthermore, the officer's subjective motivations for making the arrest are immaterial. Whren v. United States, 517 U.S. 806, 813 (1996).
1. Disorderly Conduct Although Officer Malouf moves for summary judgment on Garcia's claim that the arrest violated the Fourth Amendment, he acknowledges that, in light of Garcia's contention that he was behaving peaceably before he was arrested, there may be a "question of fact as to whether Officer Malouf had probable cause to arrest [Garcia] for disorderly conduct." Mot. Sum. J. at
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35. Officer Malouf primarily argues that he had probable cause to arrest Garcia for two other offenses. It is therefore only Garcia who asserts that he is entitled to summary judgment on the question whether Officer Malouf had probable cause to arrest him for disorderly conduct.
In Maryland, "[a] person from any location may not, by making an umeasonably loud
noise, willfully disturb the peace of another ... in a public place." Md. Code Ann. Crim. L. S
10-201(c)(5)(i) (2012). In addition, "[a] person may not willfully fail to obey a reasonable and lawful order that a law enforcement officer makes to prevent a disturbance to the public peace."
Id. S 10-201(c)(3). To do either of these things would constitute disorderly conduct. Garcia,
focusing on the first form of disorderly conduct, asserts that Officer Malouf lacked probable cause to arrest him for disorderly conduct because the "brevity" of his interactions with Officer Malouf meant that he could not have disturbed the peace in any "meaningful" way. Cross Mot. Sum. J. at 23. According to Garcia, Officer Malouf arrested him "[a]lmost immediately" after approaching him. Id. Officer Malouf, however, contends that Garcia yelled for several minutes before he ultimately arrested Garcia for disorderly conduct, a step he took only after repeatedly instructing Garcia to quiet down and warning him that he might be arrested if he did not do so. There is thus a material dispute of fact relating to the length of Garcia's interactions with Malouf, the volume of Garcia's protests, and whether they disturbed others prior to his arrest, such that summary judgment in favor of Garcia on this issue would be inappropriate.
More significantly, Garcia asserts that anything he said was a "verbal protest against illegal police orders" and was therefore protected by the First Amendment. Id. at 24. In support of this proposition, Garcia relies on Diehl v. State, 451 A.2d 115 (Md. 1982). In Diehl, the passenger of a car stopped by the police got out, only to be instructed by the police officer to return to the vehicle. In response, the passenger "began yelling," including using profanity, "said
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that he knew his rights, and said that [the officer] could not tell him to get back into the car." Id. at 116. After the officer warned him that he would be arrested if he did not get back into the car, and passers-by began to stop and watch, the passenger was arrested for, and later convicted of, disorderly conduct. Id. at 116-17.
On appeal, the State argued that the conviction was valid because Diehl's protests
amounted to "loud and unseemly noises." Id. at 118; see Md. Code Art. 27 S 121 (repealed 2002); Md. Code Ann. Crim. L. S 10-201(c)(5) (replacing Md. Code Art. 27 S 121 and making it
illegal to "mak[ e] an unreasonably loud noise" that "willfully disturb [s] the peace of another"). The Maryland Court of Appeals vacated the conviction, holding that where a person "is acting in a lawful manner ... and is the object of an unlawful police order, it is not usually a criminal violation for such person to verbally protest a police officer's insistence upon submission to such an order." Id. at 122. Instead, the Court explained, such verbal protests are speech protected by the First Amendment and so cannot serve as the basis for a disorderly conduct arrest unless they "advocate[] imminent lawless action" and are "likely to incite a breach of the peace." Id. at 119.
The Maryland Court of Appeals has since clarified the scope of Diehl. In Eanes v. State, 569 A,2d 604 (Md. 1990), the Court returned to the issue of "loud and unseemly noise" and held that when police officers arrest individuals for disorderly conduct based solely on the volume of their speech-not .its content-such arrests do not violate the First Amendment. Id. at 617-18. In reaching this determination, the Eanes court distinguished the arrest in Diehl as one made "based on [the] allegedly objectionable content" of the passenger's speech, not on the passenger's volume. Id. at 608. The court identified three factors to consider in assessing whether such an arrest was lawful: (1) whether the order was directed at the content of the speech or its volume; (2) the time and place where the speech occurs, including the appropriate
36

sound level for that location; and (3) whether there were alternative means for the arrestee to express a viewpoint. Id. at 612-13. Recognizing, however, that disorderly conduct arrests can be tools for "oppressive action" on the part of government officials, the Court of Appeals indicated that any arrest for disorderly conduct based on the volume of an individual's speech had to be preceded by a "prior warning by police authority" that "further communication at the offensive volume level may subject the individual to prosecution" and "a complaint from an affected citizen upon the basis of which the officer reasonably believes that the statute has been violated." Id. at617-18.
In Polk v. State, 835 A.2d 575 (Md. 2003), the Maryland Court of Appeals again dealt with the intersection of disorderly conduct and the First Amendment, specifically with the relationship between the prohibition on loud and unseemly noises and the provision making it illegal for a person to "willfully fail to obey a reasonable and lawful order that a law enforcement
officer makes to prevent a disturbance to the public peace." Md. Code Art. 27 S 121, revised as Md. Code Ann. Crim. L. S 10-201(c)(3).4 In Polk, a former hospital employee picking up her
final paycheck began to curse and yell at a special patrol officer who was delivering the check to the human resources department. The officer instructed Polk to "keep [her] mouth quiet and leave." Polk, 835 A.2d at 577. As Polk made her way through the hospital, continuing to yell and curse, the officer warned her that she would be arrested for disorderly conduct if she did not stop. Id. At least two people "changed their direction to walk away" from her. Id. at 578.
4 The revised provision, enacted in October 2002, was in effect by the time Polk was decided but not when the events at issue in the case occurred. The two provisions are substantively the same, as the current statute was merely "new language derived without substantive change from
former Art. 27 S 121." Md. Code Ann. Crim. L. S 10-201, Revisor's Note. The new provision
reads: "A person may not willfully fail to obey a reasonable and lawful order that a law enforcement officer makes to prevent a disturbance of the public peace." Md. Code Ann. Crim.
L. S 10-201(c)(3).
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When Polk persisted in screaming and cursing, the officer arrested Polk for disorderly conduct. Id. at 577, 583. Polk was later found guilty and appealed her conviction based on Diehl. Id. at 578. Applying the factors identified in Eanes, the Court of Appeals rejected her challenge based on its determination that the officer's orders to Polk to be quiet were lawful because they were directed at the volume, not the content, of Polk's speech; that the location of the encounter, a hospital, was a place where such a sound level was not appropriate; and that Polk had alternative means by which to express her views, such as speaking to hospital supervisor. Id. at 582-86. The court thus concluded that because the officer's orders to Polk were lawful, Polk's refusal to obey those orders constituted disorderly conduct. Id. at 579.
Here, when the facts are construed in the light most favorable to Officer Malouf, the key factual elements in Polk are arguably present. Specifically, Officer Malouf asserts that over the course of several minutes, he repeatedly instructed Garcia to "quiet down," but that Garcia refused to do so. Mot. Sum. 1. Ex. 14 at 17-18. Officer Malouf and several other officers assert that Garcia's yelling drew their focus and the focus of about a dozen nearby people. And Efigenia Rashid stated that Garcia yelled so loudly that, although her car windows were rolled up, the noise distracted her from the game she was playing on her tablet. Officer Malouf contends that it was only after Garcia's repeated refusals to calm himself down, and after Officer Malouf warned him several times that if he failed to do so he could be arrested for disorderly conduct, that he ultimately placed Garcia under arrest.
Officer Malours statement that he repeatedly instructed Garcia to "quiet down" arguably establishes that his orders to Garcia were directed at the volume of Garcia's speech, not its content. Although the encounter with Garcia occurred on a public street, a place where there should be more tolerance for noise than the hospital in Polk, under a probable cause standard, the
38

apparent impact of Garcia's speech on members of the public may be sufficient to warrant the officer's intervention at that time and place. Garcia also likely had alternative means by which to express his discontent, such as by contacting MCPD supervisors directly. In light of Polk, and upon consideration of the Eanes factors, a reasonable jury could conclude that Officer Malouf had probable cause to arrest Garcia for disorderly conduct, and that the arrest did not infringe on Garcia's First Amendment rights. Alternatively, a reasonable jury could also conclude that the arrest for disorderly conduct lacked probable cause either because Garcia was not, in fact, disruptive in any way, or because the arrest was impermissibly based on the content of Garcia's speech. Because there is a legal theory by which Officer Malours arrest of Garcia for disorderly conduct could be deemed lawful, and there are adequate facts in the record to support that theory, the question whether Garcia was lawfully arrested for disorderly conduct cannot be resolved on summary judgment, but must instead be put before a trier of fact.
2. Obstructing or Hindering an Arrest Officer Malouf argues that he is entitled to summary judgment on Count III because there was, as a matter of law, probable cause to arrest Garcia for a different offense: obstructing or hindering an arrest. See Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (holding that an arrest is lawful if, based on the facts known to the arresting officer at the time, there is probable cause to arrest for any offense, not just the offense that was the basis for the arrest or offenses closely related to it). In Maryland, it is illegal to "interfere with an individual who the person has reason to know is a police officer who is making or attempting to make a lawful arrest or detention of
another person." Md. Code Ann. Crim. L. S 9-408(b)(2). Maryland courts have explained that
the crime of hindering an arrest has four elements: (1) a police officer engaged in the performance of a duty; (2) an act or omission by the defendant that obstructs or hinders the
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officer in the performance of that duty; (3) knowledge that the police officer is engaged in the performance of a duty; and (4) intent to obstruct or hinder the officer. Cover v. State, 466 A.2d 1276, 1284 (Md. 1983).
Here, there is no question that Garcia was aware that Officers Baxter, Graves, and Malouf were police officers and that they were performing their duty in arresting the alcohol suspects. The first and third elements are therefore satisfied. The second and fom1h elements, however, are more problematic. On the second element, it is undisputed that Garcia did not actually prevent the arrest of the two alcohol suspects. Instead, Officer Maloufs contention is that Garcia delayed those arrests-by about 40 minutes, according to Officer Baxter-and that such delay satisfies the second element. However, the Maryland Court of Appeals has indicated that merely delaying an arrest does not constitute hindering. In In Re Antoine H, 570 A.2d 1239 (Md. 1990), the court held that evidence of a "delay in opening the door" to police officers to give a suspect time to hide, and of unbelieved lies to the officers about the suspect's presence on the premises, was insufficient to establish at trial the second element of the crime of hindering an arrest. Id. at 1243. The court reasoned that because the police officers ultimately found the suspect and arrested him, they were not "actually hindered or obstructed" in making the arrest. Id. at 1242.
Even if delaying an arrest could be deemed to establish the second element, Officer Malouf s argument founders on the fourth element. As Officer Malouf and his fellow officers recount the events of that night, Officer Malouf was called to the scene because Garcia was "in the shadows" at a distance too far away for Officers Baxter and Graves to discern exactly what he was doing. Mot. Sum. J. Ex. 1 at 17. The problem that the officers assert Garcia posed was thus not that he was actively or intentionally interfering in the arrest of the alcohol suspects, but
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that he was a distraction. Even when the facts are construed in Officer Malours favor, there is no evidence that any disruption Garcia may have caused in the arrest of the two alcohol suspects was one he intended to cause. Instead, the undisputed evidence is that, before Officer Malouf arrived, Garcia stayed at least 35 feet away from the arrest scene and did not engage with the officers. Once Officer Malouf arrived, either, as Garcia tells it, Garcia remained calm, or, as Officer Malouf tells it, Garcia began to protest his own interaction with the police, not the arrest of the two alcohol suspects. To find that Officer Malouf had probable cause to arrest Garcia for hindering would thus be to mistake a possible effect of Garcia's video recording-the officers' distraction-for Garcia's intent in video recording. Notably, Garcia's core claim is that he had a right to record the events unfolding in front of him, a claim that is fundamentally at odds with the assertion that Garcia's intent was to thwart those events. Thus, the Court concludes that, even viewing the facts in the light most favorable to the defense, Officer Malouf did not have an objectively reasonable basis to believe that Garcia committed the offense of hindering an arrest and therefore did not have probable cause to arrest Garcia for that crime.
3. Second-Degree Assault Lastly, Officer Malouf asserts that he had probable cause to arrest Garcia for seconddegree assault. In Maryland, "assault" is defined as "the crimes of assault, battery, and assault
and battery, which retain their judicially determined meanings." Md. Code Ann. Crim. L. S 3-
201(b). One of those judicially determined meanings, and the one asserted here, is that an individual can commit an assault merely by "intentional(ly] frightening" someone, even absent physical contact. Wieland v. State, 643 A.2d 446,464 (Md. 1994). Such an assault is a seconddegree assault, Maryland's catch-all crime for assaults that are not committed with a firearm or
41

which do not involve intent to cause serious physical injury. See Md. Code Ann. Crim. L. SS 3-
202,3-203 (defining first-degree and second-degree assault, respectively). Officer Malouf's contention that he had probable cause to arrest Garcia for second-degree
assault on an "intent to frighten" theory arises from Grajeda's assertion that he felt "threatened by [Garcia's] loud yelling while [Garcia] pointed his finger directly at Grajeda." Resp. Opp'n Cross Mot. Sum. J. at 22. This argument warrants scant attention. Second-degree assault based on an intent to frighten has three elements: (1) the defendant committed an act with the intent to place the victim in fear of immediate physical harm; (2) the defendant had the apparent ability at the time of the act to bring about the threatened physical harm; and (3) the victim was aware of the threat of physical harm. Jones v. State, 103 A.3d 586,589 (Md. 2014). Here, Garcia's "act" was cursing and pointing in Grajeda's direction. Even when the facts are construed in Officer Malouf's favor, there is no reasonable basis to conclude that Garcia acted with the intent to place Grajeda in fear of immediate physical harm. No one heard Garcia make any threats of physical harm toward anyone. In fact, Grajeda acknowledged that Garcia's cursing was not even directed at him. According to Grajeda, he did not know exactly to whom Garcia was talking because "when you are yelling and screaming, 'Fuck this. Fuck that' .... Who am I speaking to? God?" Mot. Sum. 1. Ex. 2 at 16. Garcia's pointing, which appears to have happened only once, was not accompanied by any other threatening gesture. Furthermore, even if Garcia did intend to cause Grajeda to fear for his safety, at the time Garcia supposedly indicated this intent, Officer Malouf was already on the scene, only feet away from Garcia. With Garcia already under the close observation of an armed police officer, whose sole purpose on the scene was to ensure that Garcia posed no threat, Garcia cannot be said to have had the "apparent ability" to carry out any supposed threats of physical harm. Officer Malouf therefore did not have an objectively
42

reasonable basis to believe that Garcia was committing, or intended to commit, second-degree assault and thus did not have probable cause to arrest him for that offense.
B. Probable Cause to Seize the Camera and Video Card In his Complaint, Garcia asserts that because his arrest was unlawful, the seizure of his camera and the video card were also unlawful. Although both sides seek summary judgment on Count III, neither offers an argument on why it is entitled to summary judgment on this question, nor would summary judgment be appropriate. Whether the camera and video card were lawfully seized depends, as a threshold matter, on the lawfulness of the arrest, and thus whether Officer Malouf was entitled to search Garcia incident to that arrest. The lawfulness of the seizures thus folds analytically into the question of probable cause for the arrest, which as discussed above, cannot be decided on summary judgment. See United States v. Robinson, 414 U.S. 218, 224 (1973) ("It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment."); Chimel v. California, 395 U.S. 752, 763 (1969) ("[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction."). Even then, the items could only be seized if there is a "nexus ... between the item to be seized and criminal behavior." Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967). Garcia's claim that Officer Malouf seized and never returned the video card, if true, may establish a Fourth Amendment violation as a matter of law, because there is no apparent basis for the permanent seizure of the video card, particularly in light of Garcia's acquittal at trial on the disorderly conduct charge. But there remains a material dispute of fact about the video card that is as sharp as one can be: Garcia asserts that Officer Malouf took and retained the card; Officer
43

Malouf asserts that he did not. Thus, there is no basis to grant summary judgment to either party on the Fourth Amendment claim relating to the seizure of the camera and video card.
C. Qualified Immunity Officer Malouf alternatively asserts that he has qualified immunity on Garcia's Fourth Amendment claims. Qualified immunity shields government officers from liability for damages if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. At the summary judgment stage, Officer Malouf's qualified immunity argument fails. As discussed above, there exists a genuine issue of material fact whether Officer Malouf violated Garcia's Fourth Amendment rights. Moreover, it is beyond question that the right not to be arrested or to have one's property seized without probable cause were clearly established and widely known at the time of the events at issue here. See, e.g., Dunaway v. New York, 442 U.S. 200, 212 (1979) (reiterating the "general principle that Fourth Amendment seizures must be supported by the 'long-prevailing standards' of probable cause") (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)); Virginia v. Moore, 553 U.S. 164, 176-78 (2008) (holding that a warrantless arrest for a misdemeanor committed in the presence of a police officer, and a subsequent search incident to arrest, are lawful if there is probable cause to arrest); Wong Sun v. United States, 371 U.S. 471, 479 (1963) ("It is basic that an arrest ... must stand upon firmer ground than mere suspicion ... a relaxation of the fundamental requirements of probable cause would leave law-abiding citizens at the mercy of the officers' whim or caprice") (internal quotation marks omitted)). Officer Malouf's invocation of Plumhoffv. Rickard, 134 S. Ct. 2012 (2014) is unavailing. Plumhoff presented the question of whether it was clearly established that it was unconstitutional to use "lethal force to end a high-speed chase," id. at 2024, a factual scenario too far afield from the
44

facts here for that case to be enlightening. Officer Malouf is therefore not entitled to qualified immunity on Garcia's Fourth Amendment claims.s
Because the facts in the record, even when construed in the light most favorable to the defense, do not establish that Officer Malouf had probable cause to arrest Garcia for either hindering an arrest or second-degree assault, his motion for summary judgment on Garcia's Fourth Amendment claim is denied, and Garcia's motion for summary judgment as to those two crimes is granted. However, because there are factual disputes that must be resolved to determine whether Officer Malouf had probable cause to arrest Garcia for disorderly conduct, Garcia's motion for summary judgment as to his arrest for disorderly conduct is denied. V. Common Law Claims
In addition to his constitutional claims, Garcia alleges three common law torts: (1) false arrest and false imprisonment (Count VI), (2) malicious prosecution (Count VII), and (3) battery (Count VIII). Officer Malouf seeks summary judgment on all three claims. Garcia seeks summary judgment on the false arrest and false imprisonment claim and the malicious prosecution claim.
The "necessary elements" of the tort of false arrest and false imprisonment are (1) the deprivation of the liberty of another; (2) without consent; and (3) without legal justification. Ashton v. Brown, 660 A.2d 447, 471 (Md. 1995). The elements of malicious prosecution are "(1) the defendant instituted a criminal proceeding against the plaintiff; (2) the criminal proceeding
S Officer Malouf would still not be entitled to qualified immunity on Garcia's Fourth Amendment claim if the disorderly conduct arrest was based on the content of Garcia's complaints. Diehl, decided by the Maryland Court of Appeals in 1982, establishes that verbal protests against the police are speech protected by the First Amendment and therefore cannot serve as the basis for a disorderly conduct arrest unless they become exhortations to unlawful action. Diehl, 451 A.2d at 119. The First Amendment right not to be arrested for verbally protesting police action was thus a clearly established right at the time ofthe events in this case.
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was resolved in the plaintiffs favor; (3) the defendant did not have probable cause to institute the proceeding; and (4) the defendant acted with malice or a primary purpose other than bringing the plaintiff to justice." Okwa v. Harper, 757 A.2d 118, 130 (Md. 2000). Battery consists of an intentional and unlawful touching, without consent, that is harmful or offensive. Elias v. State, 661 A.2d 702, 709 (Md. 1995).
Each side's argument on these three claims relies on its position on the Fourth Amendment arrest claim. Proceeding on the assumption that he had probable cause to arrest Garcia, Officer Malouf asserts that the arrest, detention, and prosecution of Garcia, and the physical contact necessary to effect the arrest, were all legal. Garcia, proceeding on the assumption that Officer Malouf did not have probable cause to arrest, argues that Officer Malouf necessarily unlawfully deprived Garcia of his liberty, initiated a criminal proceeding without probable cause, and also intentionally, unlawfully, and offensively touched Garcia.6 Here, as discussed above, there is an unresolved factual question whether Officer Malouf had probable cause to arrest Garcia for disorderly conduct. With the lawfulness of Garcia's arrest unclear, there can be no determination as a matter of law on any of the common law claims.
Furthermore, on the malicious prosecution claim, even if Officer Malouf did not have probable cause to arrest, there would still be factual disputes that would preclude a determination on the fourth element: whether he acted with malice when arresting Garcia. "The 'malice' required for malicious prosecution consists of a wrongful or improper motive in initiating legal proceedings." Alvarez v. Montgomery Co., 147 F.3d 354, 360 (4th Cir. 1998) (quoting
6 Because the essence of battery is an unlawful touching, Officer Malouf s assertion that he used only the force necessary to effect the arrest does not resolve this claim. Battery includes any unlawful application of force, even one that results only in "slight" injury. Elias, 661 A.2d at 709.
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Montgomery Ward v. Wilson, 664 A.2d 916, 924 (Md. 1995)). Garcia asserts that Officer Malours wrongful motive was a desire to abridge his First Amendment rights. Officer Malours alleged malice is thus bound up in the reasons behind, and the factual disputes surrounding, Garcia's arrest and thus cannot be resolved on summary judgment.
Finally, if the question of the legality of the arrest were resolved in Officer Malours favor, summary judgment on the battery claim would still be inappropriate. Even if Officer Malouf was initially authorized to touch Garcia to effect a lawful arrest, Garcia asserts that Officer Malouf used more force than was necessary, including deliberately tripping him while he was handcuffed and pressing his neck in such a way as to cause significant pain. Officer Malouf denies these allegations. Thus, on this excessive force aspect of the battery claim, there are material factual disputes that preclude summary judgment.
For these reasons, the cross motions for summary judgment on the common law torts are both denied. VI. The Privacy Protection Act
In Count V, Garcia asserts a claim under the Privacy Protection Act ("the PP A"), 42
U.S.C. 9 2000aa et seq., based on the alleged seizure of and failure to return the video card from
his camera. The PP A prohibits government officers "in connection with the investigation or prosecution of a criminal offense" from searching or seizing "any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public" those
materials. 42 U.S.C. 9 2000aa(a). However, the "suspect exception" to the PPA allows
government officials to seize otherwise exempt materials "if there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to
which the materials relate." Id. at 9 2000aa(a)(l). Montgomery County seeks summary
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judgment on Garcia's PPA claim, asserting that even assuming that Officer Malouf seized the video card, which he disputes, Garcia has failed to produce any evidence establishing that he had a "purpose to disseminate" his recording to the public, and arguing, in the alternative, that any seizure of the video card was permissible under the PPA suspect exception. Mot. Sum. J. at 40.
On the first argument, the County bases its contention that Garcia has not established that he had a "purpose to disseminate" the recording on the fact that none of the officers heard Garcia "express any such intentions" to distribute the material. Id. However, the PP A does not require an express statement of intent, only that it be reasonable to believe that the person possessing those materials has such an intention. See 42 U.S.C. 2000aa(a). Here, Garcia asserts, and the two Civilian Alcohol Enforcement team members confirmed, that Garcia audibly identified himself as a member of the press, a self-identification that would support the reasonable belief that Garcia intended to disseminate his recording to the public. Cf Teichberg v. Smith, 734 F. Supp. 2d 744, 751-52 (D. Minn. 2010) (in considering whether the plaintiff intended to disseminate a recording to the public within the meaning of the PP A, noting that the plaintiff had not identified himself to officers as a journalist).
The County's claim that the video card could be seized pursuant to the PPA's suspect exception is also unpersuasive. The suspect exception applies only if there is probable cause to believe that the person possessing the materials committed a crime to which the materials relate. For the County to be shielded by this exception, there would have to be probable cause to believe that Garcia committed a crime and a further showing that his recording "relate [d]" to that crime within the meaning of the PPA. See Sennett v. United States, 667 F.3d 531, 535-3 7 (4th Cir. 2012) (affirming district court's application of the PPA suspect exception because there was probable cause to believe that plaintiff was involved in the vandalism that she had recorded).
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Here, as discussed above, the only crime arguably committed by Garcia was disorderly conduct, and whether there was probable cause to believe that Garcia committed that offense, and whether the video recording related to that offense under the PP A, are open questions that cannot be resolved without a trial. Thus, the County's motion for summary judgment on Count V is denied.
CONCLUSION For the reasons set forth above, Defendants' Motion for Summary Judgment is GRANTED as to the claim for damages in Count I and the First Amendment retaliation claim against Officer Baxter in Count II. The Motion is DENIED as to the claim for declaratory relief in Count I, the First Amendment retaliation claim against Officer Malouf in Count II, and all other counts at issue on the Motion. Garcia's Cross Motion for Partial Summary Judgment is GRANTED on Count III as to the offenses of hindering an arrest and second-degree assault only. Garcia's motion is DENIED in all other respects. A separate Order follows.

Date: November 5, 2015

THEODORED. United States Dis

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 Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 1 of 28

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MANNIE GARCIA,
Plaintiff,
v.
MONTGOMERY COUNTY, MARYLAND, OFFICER CHRISTOPHER MALOUF, in his individual capacity, and OFFICER KEVIN BAXTER, in his individual capacity,
Defendants.

Civil Action No. TDC-12-3592

MEMORANDUM OPINION Presently pending is Plaintiff Mannie Garcia's Motion for Attorney's Fees and Costs. Having reviewed the briefs and submitted materials, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For the reasons set forth below, Garcia's Motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND On December 7, 2012, Garcia filed suit against Defendants Montgomery County, Maryland; Montgomery County Police Department ("MCPD") Officers Kevin Baxter, Michael Graves, and Christopher Malouf; MCPD Chief Thomas Manger; and MCPD Lieutenant Mark
Sheelor, alleging eight causes of action: (I) a claim under 42 U.S.C. S 1983 ("S 1983") for a
violation of his First and Fourteenth Amendment rights based on his allegation that on June 16,
2011, he was arrested for peacefully videorecording police activity; (II) a S 1983 claim for First
Amendment retaliation stemming from incidents that occurred aft~r he complained about his

Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 2 of 28
arrest; (III) a S 1983 claim for a violation of his Fourth and Fourteenth Amendment rights based
on the allegation that he was arrested and had his video card seized without probable cause; (IV)
a S 1983 claim against Montgomery County only, pursuant to Monell v. Department of Social
Services of the City of New York, 436 U.S. 658 (.1978),. alleging a custom and practice of
allowing MCPD officers to prevent recording of police activity, in violation of the First
Amendment; (V) a claim under the Privacy Protection Act ("PPA"), 42 U.S.C. SS 2000aa-
2000aa-17 (2012), relating to the seizure of his video card; (VI) a common law false arrest and false imprisonment claim; (VII) a common law malicious prosecution claim; and (VIII) a common law battery claim against Officer Malouf only. All individual Defendants were sued in both their individual and official capacities, with the exception of Chief Manger and Officer Graves, who were sued in their official capacities only. Garcia sought money damages as well as injunctive and declaratory relief.
On August 23,2013, the Court (Motz, J.) dismissed (1) all claims against Officer Graves and Lt. Sheelor; (2) all claims against Officer Baxter, except the First Amendment and retaliation claims; (3) the false arrest/false imprisonment and malicious prosecution claims against Montgomery County and Chief Manger; (4) the PPA claim against all defendants except Montgomery County; and (5) all claims against officers in their official capacity, except for Chief Manger.
On November 5, 2015, following discovery, the Court granted in part and denied in part the parties' cross motions for summary judgment. Specifically, the Court held that the First Amendment protected the peaceful videorecording of police officers in the performance of their duties and barred the seizure by the police of related recordings in order to prevent their dissemination. Garcia v. Montgomery Cty., 145 F. Supp. 3d 492, 507-08, 510 (D. Md. 2015).
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However, the Court further held that these rights were not clearly established in this jurisdiction at the time of the incident at the heart of this case, so Defendants Baxter and Malouf had qualified immunity from the damages claims asserted in Garcia's First Amendment claim in Count I. Id. at 509,511. The Court thus granted summary judgment on Count I as to any claim for money damages, but not as to Garcia's claim for declaratory relief. Id. at 525. The Court also granted Officer Baxter summary judgment on the First Amendment retaliation claim. Id. at 515-16. On the Fourth Amendment claim in Count III, the Court granted summary judgment in favor of Garcia on the claims that he had been validly arrested for hindering an arrest and second-degree assault, but denied it on the claim that he was validly arrested for disorderly conduct. Id. at 519-21. The Court denied summary judgment on the remaining claims.
On June 23, 2016, the parties stipulated to the dismissal of all claims against Chief Manger and all claims against Montgomery County with the exception of the PP A claim. In August 2016, the Court scheduled a trial on the remaining claims, which consisted of: (1) Count
I: the S 1983 First Amendment claim for a declaratory judgment against Officers Malouf and Baxter in their individual capacities; (2) Count II: the S 1983 First Amendment retaliation claim against Officer Malouf in his individual capacity; (3) Count III: the S 1983 Fourth Amendment
claim against Officer Malouf in his individual capacity; (4) Count V: the PP A claim against Montgomery County; (5) Count VI: the false arrest and false imprisonment claim against Officer Malouf in his individual capacity; (6) Count VII: the malicious prosecution claim against Officer Malouf in his individual capacity; and (7) Count VIII: the battery claim against Officer Malouf in his individual capacity.
In September 2016, Garcia propounded a settlement demand seeking an apology from MCPD, financial compensation, attorney's fees, and training of MCPD officers on media
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Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 4 of 28
relations. On January 13, 2017, the parties proceeded to mediation before a United States Magistrate Judge. At the start of the mediation, Defendants presented Garcia with MCPD Training Bulletin # 17-01, adopted one day earlier, the purpose of which was "to emphasize and clarify current law and the policy of the Montgomery County Police Department when dealing with citizens who are using a camera, cellphone or other recording devices to film/video tape the police during the performance of their duties." Training Bulletin at 1, Mot. Atty. Fees Ex. 9, ECF No. 98-2. That Bulletin announced that "[a] citizen or member of the media may not be arrested solely because that citizen is filming the police," because "the United States District Court for the District of Maryland recently held that' ... video recording of police activity, if done peacefully and without interfering with the performance of police duties, is protected by the First Amendment.'" !d. The Bulletin further instructed that "Officers are prohibited from threatening, intimidating, or otherwise discouraging any individual from recording police activities," and that "[t]he mere fact that the citizen was video recording the officer's conduct IS NOT an element in determining probable cause" to arrest for a different offense. Id. at 1-2. According to Garcia, once he had approved the contents of the Training Bulletin, the settlement negotiations turned to money damages, with Defendants ultimately agreeing to pay him $45,000.
On January 27, 2017, the parties notified the Court that they had negotiated a settlement in principle, asked to be removed from the trial calendar, and informed the Court that a stipulation of dismissal would soon be filed. By February 23,2017, no such stipulation had been filed, so the Court convened a status conference at which the parties explained that they continued to disagree on whether the issuance of the Training Bulletin was part of the settlement agreement. After a follow-up session with the Magistrate Judge, the parties agreed to reference the Training Bulletin in the settlement agreement. On March 3, 2017, the parties filed a
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Stipulation of Dismissal with a proposed Order for the Court. The Stipulation provided that Garcia could petition for attorney's fees and that:
Defendants will raise defenses in opposing any such request, including but not limited to Defendant(s'] assertion that Plaintiff did not prevail on such claims, except that the parties agree, solely for the purpose of the Fee Petition, to treat Plaintiff as ifhe prevailed on fee shifting claims the Court left for trial by the jury, and for which qualified immunity from damages was not granted. Stipulation of Dismissal with Prejudice ("Stipulation") at 1, ECF No. 96. On March 6, 2017, the Court issued an Order dismissing the case. Garcia then filed his Motion for Attorney's Fees and Costs.
DISCUSSION Garcia initially sought attorney's fees in the amount of $718,703.00 for 1,124.5 hours of work and costs in the amount of $12,402.34. Garcia later consented to exclude 7.7 billed hours on his voluntarily dismissed Monell claim, reducing the billed hours to 1,116.8 and the requested fee award to $712,889.50. Defendants assert that Garcia is not a prevailing party entitled to attorney's fees, or, in the alternative, that the requested attorney's fees are vastly disproportionate to Garcia's success; that Garcia's attorneys have billed their time at rates far exceeding what is customary in this District; and that the number of billed hours exceeds what is reasonable. I. Prevailing Party
Under 42 U.S.C. S 1988 ("S 1988"), in any action to enforce S 1983, "the court, in its
discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42
U.S.C. S 1988(b). Before awarding fees, a court must therefore make a threshold determination
whether a plaintiff is a prevailing party. "[P]laintiffs may be considered 'prevailing parties' for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433
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(1983). In Farrar v. Hobby, 506 U.S. 103 (1992), the United States Supreme Court held that fees could be awarded when a plaintiff "obtain (s] an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement." Id. at 111 (internal citations omitted). More recently, the Supreme Court was presented with the question whether a plaintiff could be considered a prevailing party under a "catalyst theory," a term designating instances where a lawsuit prompted a "defendant's voluntary change in conduct," but produced no binding resolution. Buckhannon Bd. v. W Va. Dep't of Health and Human Res., 532 U.S. 598,602,605 (2001). In rejecting the catalyst theory as a basis to award attorney's fees, the Supreme Court stated that in order to be deemed a prevailing party under ~ 1988, a plaintiff must have secured a "judicially sanctioned change in the legal relationship of the parties." Id. at 605. By way of illustration, the Buckhannon Court stated that "judgments on the merits" and "settlement agreements enforced through a consent decree may serve as the basis for an award of attorney's fees." Id. at 604. Noting that "(n]ever had we awarded attorney's fees for a nonjudicial 'alteration of actual circumstances,''' the Court established a requirement that there be a "judicial imprimatur" on the change in order for it to confer prevailing party status. Id. at 605-06; Grissom v. The Mills Corp., 549 F.3d 313,318 (4th Cir. 2008).
Although Buckhannon decided only the issue of the viability of the catalyst theory for establishing prevailing party status, it arguably could be read to narrow Farrar by excluding settlements unaccompanied by consent decrees from the forms of case resolution warranting prevailing party status. The Court need not decide that issue. Here, the parties have entered into a settlement agreement that does not include a consent order and, in fact, has never been presented to the Court. Ordinarily, in a settlement agreement without a consent order, the issue of attorney's fees is resolved through a negotiated agreement so that prevailing party status does
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not matter. See Buckhannon, 532 U.S. at 609 (noting that a defendant "has a strong incentive to enter a settlement agreement where it can negotiate attorney's fees and costs"). In this case, the parties have stipulated as part of their settlement not to the amount of attorney's fees, but "to treat Plaintiff as if he prevailed on fee shifting claims the Court left for trial by the jury, and for which qualified immunity from damages was not granted." Stipulation at 1. Defendants have therefore already conceded the point that the Court must treat Garcia as a prevailing party and thus may award attorney's fees. The scope of Garcia's success, and the amount of attorney's fees that should reasonably be awarded, is addressed at later stages of the review process. See Tex. State Teachers Ass'n v. Garland lndep. Sch. Dist., 489 U.S. 782, 793 (1989) (emphasizing that "the degree of the plaintiff s overall success goes to the reasonableness of the award under Hensley, not to the availability of a fee award vel non"); Farrar, 506 U.S. at 114 (stating that "the 'technical' nature of a nominal damages award ... does not affect the prevailing party
inquiry," but does "bear on the propriety of fees awarded under S 1988").
Nevertheless, in order properly to assess the remaining issues on the Motion, the Court considers on which claims Garcia is deemed to have prevailed. To do so, the Court must interpret the language of the Stipulation, the vehicle by which prevailing party status is conferred in this case. Rather than simply identifying the specific counts on which the parties agreed that Garcia should be deemed to have prevailed, the parties agreed opaquely "to treat Plaintiff as if he prevailed on fee shifting claims the Court left for trial by the jury, and for which qualified immunity from damages was not granted." Stipulation at 1. This language undisputedly includes the First Amendment retaliation claim in Count III against Officer Malouf, the Fourth Amendment claim in Count V against Officer Malouf, and the PPA claim in Count VI against Montgomery County, but the parties disagree on whether it includes the First Amendment claim
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in Count 1. Defendants argue that because the Court granted qualified immunity on damages to Officer Malouf and Officer Baxter on the First Amendment claim, Garcia did not prevail on any aspect of Count 1. Garcia, however, argues that Count I included a First Amendment claim for a declaratory judgment on which no qualified immunity was granted, such that the parties agreed that he prevailed on that claim.
Where the Stipulation does not contain more explicit language on whether Garcia prevailed on Count I, the Court is left to interpret the parties' agreed-upon language. The Court finds the language ambiguous in that it could be read to include or exclude the First Amendment declaratory judgment claim from those claims on which Garcia prevailed, depending on whether the First Amendment claims for money damages and declaratory relief could be fairly separated from each other. See Pacific Indem. Co. v. Interstate Fire & Cas. Co., 488 A.2d 486, 489 (Md. 1985) ("If the language of the contract is ambiguous, extrinsic evidence may be consulted to determine the intention of the parties."). Although not a model of clarity, the language is most fairly read, in context, to include an agreement that Garcia prevailed on the First Amendment claim for declaratory relief. First, in ruling on the Cross Motions for Summary Judgment, the Court denied summary judgment on this claim such that it was a fee-shifting claim "left for trial by the jury" along with the remaining claims for damages. See Beacon Theaters, Inc. v. Westover, 359 U.S. 550, 508-09 (1959) (noting that where an action for a declaratory judgment is brought together with an action for damages, the Federal Rules of Civil Procedure and the Declaratory Judgment Act allow them to be resolved together in a jury trial); 9 C. Wright, A.
Miller, & M. Kane, Federal Practice and Procedure S 2313 (3d ed. 2013) (stating that "[i]f there
would have been a right to jury trial on the issue if it had arisen in an action other than one for a declaratory judgment, it must be tried to a jury in the declaratory action"). Indeed, the Court
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specifically stated in its opinion on summary judgment that a ruling on the First Amendment declaratory judgment claim "would require a trier of fact to sift through and weigh these opposing factual accounts." Garcia, 145 F. Supp. 3d at 513. Moreover, although Garcia pleaded a single First Amendment count seeking damages, a declaratory judgment, and injunctive relief, the Court explicitly treated the damages claim and the declaratory judgment claim separately on the issue of whether it would proceed to trial. With this backdrop, the most reasonable interpretation of the Stipulation is that it recognized these two claims to be separate, and that the parties thus agreed that Garcia had prevailed on the declaratory judgment claim but not on the damages claim of his First Amendment cause of action, just as had occurred on the summary judgment motions. Had the parties agreed that all First Amendment claims were to be treated together, there would have been no need for qualifying language referring to claims "for which qualified immunity from damages was not granted." Stipulation at 1.
This interpretation is consistent with the principle that a grant of qualified immunity from damages would not necessarily preclude a plaintiff from prevailing on a First Amendment claim such that attorney's fees would be due. See Lefemine v. Wideman, 758 F.3d 551, 555 (4th Cir.
2014). In Lefemine, the United States Court of Appeals for the Fourth Circuit stated that S 1988
was enacted in part to allow for attorney's fees in cases where money damages are unavailable due to immunity, because "awarding counsel fees to prevailing plaintiffs in such litigation is particularly important and necessary if (fJederal civil and constitutional rights are to be adequately protected." Id. (quoting H.R. Rep. No. 94-1558, at 9 (1976)).
It is also consistent with the relief that arose from the settlement agreement. Here, one of the key forms of relief Garcia sought was training of MCPD officers on the First Amendment rights of journalists and citizens. The settlement agreement specifically referenced MCPD's
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adoption of a Training Bulletin on that very topic. The fact that the primary message in the Training Bulletin was that this Court had ruled, in this very case, that the First Amendment protected videotaping by citizens of police activity, is consistent with the interpretation that the parties agreed that Garcia prevailed on the First Amendment declaratory judgment claim, as the Training Bulletin, though not a formal declaratory judgment on the constitutionality of MCPD's treatment of Garcia, provided a public acknowledgment that the law barred the type of treatment he alleged he received from Defendants.
Accordingly, the Court concludes that pursuant to the Stipulation, Garcia is deemed to have been the prevailing party on the First Amendment declaratory judgment claim, the First Amendment retaliation claim against Officer Malouf, the Fourth Amendment claim against Officer Malouf, and the PPA claim against Montgomery County. II. Calculation of Fees
Having determined that Garcia is a prevailing party in this action, the Court turns to calculating what, if any, attorney's fees are reasonable. This inquiry is a three-step process: (1) the court must determine the lodestar figure by multiplying the number of reasonable hours expended by a reasonable rate for those hours; (2) the court must subtract fees for hours spent on unsuccessful claims unrelated to successful ones; and (3) the court should adjust the award as necessary by awarding some percentage of the remaining amount, depending on the degree of . success achieved by the plaintiff. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013). Throughout this process, the Court should apply the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,717-19 (5th Cir. 1974), while taking care not to double count any factor. McAfee, 738 F.3d at 89-90. The Johnson factors are: "(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly
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perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases." Id. at 88 n.5. "(T]he burden rests with the fee applicant to establish the reasonableness of a requested rate." Id. at 91 (quoting Plyler v. Evatt, 902 F.2d 273,277 (4th Cir.1990)).
A. Lodestar Figure 1. Reasonable Hours
Garcia seeks fees for 1,116.8 hours of work. Voluntarily excluded from that time are hours his counsel spent preparing two unsuccessful discovery motions and "all Monell discovery fees and costs, and related work." Mot. Atty. Fees at 11, ECF No. 98-1. Defendants take issue with every other aspect of the billed hours.
First, Defendants assert that Garcia's counsel overbilled for a preliminary demand letter and the Complaint because the Complaint largely duplicated the facts set forth in the demand letter and because another Complaint, drafted by a different attorney, had previously been filed. The operative Complaint in this case was 24 pages long, contained extensive factual detail, and ultimately provided a sturdy case architecture, as evidenced by the fact that there were no subsequent amendments. It was significantly more detailed than the first filing, and present counsel presumably had to learn and verify for themselves all of the facts underlying the Complaint, as well as research the underlying law, so it is not reasonable to assume that they
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could simply recycle the original filing. From the billing records, the Court finds that the total of approximately 20.4 hours of time on the demand letter, which included legal research time, and 32.4 hours of time on the Complaint, was reasonable. See Corral v. Montgomery Cty., 91 F. Supp. 3d 702, 716-17 (D. Md. 2015) (finding that 25 hours was reasonable for preparation of a
two-count complaint pleading a S 1983 First Amendment claim and a S 1983 Fourteenth
Amendment due process claim because "oftentimes the success of a First Amendment case rises or falls on the details").
Defendants next assert that there are various instances of administrative tasks that were unnecessarily or double billed. Because Garcia's counsel, as discussed below, emphasize their legal sophistication and thus seek concomitantly high fees, the Court agrees that any billing for administrative tasks results in an inappropriately high cost for basic work. See Spell v. McDaniel, 824 F.2d 1380, 1401-02 & n.17 (4th Cir. 1987) (upholding the district court's general reduction of hours to account for time spent by counsel on "non-legal" or duplicative tasks even though "in some circumstances, it may be more efficient and reasonable for counsel to perform such tasks"). Likewise, where Garcia's legal team included three attorneys, duplicative billing should not be included in the fee calculation. See id. Here, Garcia's counsel voluntarily removed various billing entries relating to administrative tasks such as transmitting documents and largely excluded duplicative hours among the three counsel. Nevertheless, upon careful review of the billing records, the Court disallows 2.0 hours from attorney Ronald London and 6.5 hours from attorney Alison Schary as duplicative charges that would not be reasonable to include in an attorney's fee award.
Defendants also assert that both deposition preparation and depositions themselves were overstaffed and thus overbilled. Defendants cite no authority for the proposition that only one
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attorney may be involved in deposition preparation, and the Court sees no compelling reason that such a key part of civil litigation must be an entirely solitary undertaking. See Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 180 (4th Cir. 1994) (noting "the need to avoid use of multiple counsel for tasks where such use is not justified by the contributions of each attorney," but nevertheless determining that there was "no evidence" that the attorneys in that case "in any sense applied an unreasonable effort to the task"). Although Defendants are correct that "in seeking attorney's fees under section 1988, attorneys are under a duty to minimize expenses," and parties are limited to "one qualified attorney where the issues are simple," Trimper v. City of Norfolk, Va., 58 F.3d 68, 76 (4th Cir. 1995), this First Amendment case was at a level of complexity that would justify more than one attorney working on deposition preparation. Indeed, to the extent that some tasks were handled by an attorney at a lower billing rate, the participation of multiple attorneys could be cost-effective.
As for instances where Garcia had multiple attorneys attend a deposition, the Local Rules of this District dictate that in fee-shifting cases, only one attorney for the plaintiff may be compensated for attending a deposition. See D. Md. Local R. App'x B 2(b). The Rule allows for an exception where "more than one retained attorney attended the deposition and charged the time for his/her attendance." Id. (footnote). Although the Rule does not explain why the exception applies only to retained counsel charging time, the rationale appears to be that when a defendant is willing to pay two attorneys to attend, the defendant has effectively acknowledged that the matter is of sufficient complexity to warrant such resources. Although arguably the presence of two government attorneys may signal the same, the plain language of the Rule does not permit its application based on the presence of two government attorneys.
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Here, although Garcia's counsel has clarified that they have billed deposition hours for two attorneys only when Defendants also had two attorneys in attendance, those attorneys were County staff attorneys who were not retained and did not charge for their time. Although some of the depositions involved issues of sufficient complexity that a second attorney might be warranted, the Rule does not allow for such an exception. The Court will therefore limit the reasonable hours for deposition attendance to the hours of the attorney who conducted the deposition, resulting in a reduction of 40.9 hours for London and 3.3 hours for Schary.
Defendants lastly claim that the billed hours for motions practice were excessive, particularly considering what they characterize as Garcia's lack of success. Because McAfee instructs courts to make reductions for unsuccessful claims after the lodestar has been calculated, the Court addresses the results of the motions practice separately and looks now only to the reasonableness of the time spent on it. McAfee, 738 F.3d at 88. Garcia's three attorneys billed 118.7 hours over a one-month response period, the equivalent of approximately three weeks of work for single attorney, opposing Defendants' Motion to Dismiss with a 42-page brief. In the Motion to Dismiss, Defendants argued that the individual Defendants had qualified immunity, sought dismissal of at least some aspect of seven of Garcia's eight claims, sought dismissal of all official capacity claims, and, alternatively, sought bifurcation of the Monell claim. Considering the numerous, non-exclusive arguments for dismissal raised by Defendants, the Court concludes that 118.7 hours spent in opposing the Motion is not excessive. See Rum Creek, 31 F.3d at 180 (citing that "the litigation was vigorously contested" by the defendants as a reason for "the hours necessary to prosecute" the case).
For much the same reason, the Court finds reasonable the hours billed on the Cross Motions for Summary Judgment, consisting of two briefs: Garcia's combined Memorandum in
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Opposition to Defendants' Motion for Summary Judgment and in Support of Garcia's Motion for Partial Summary Judgment, and Garcia's Reply Memorandum on his Motion for Partial Summary Judgment. The record on summary judgment was voluminous, consisting of over 50 exhibits and over 1,000 pages. Defendants sought summary judgment on each of Garcia's remaining claims and also asserted that the individual defendants had qualified immunity on the First Amendment claim. The qualified immunity analysis on the First Amendment claim addressed an area of important but uncertain and unsettled law, as evidenced by the Statement of Interest filed by the United States Department of Justice. Garcia's counsel spent a total of 214.4 hours across three attorneys over a one-month period, consisting of approximately one and a half weeks of work for each attorney, and a total of 120.4 hours on the reply brief over a one-month period, consisting of approximately one week of work for each attorney. Considering the scope of the issues raised on summary judgment as well as their novelty and complexity, the Court finds the billed hours reasonable. See Rum Creek, 31 F.3d at 180 (noting that "the difficulty and complexity" of a case "tend [s] to justify full compensation," particularly when the case is "vigorously contested").
The Court finds the modest 12.8 hours billed for all other motions to be reasonable. The Court also finds the 41.8 hours billed for the fee petition to be reasonable considering the length of the case, which settled just short of trial, and the fact that Defendants have contested nearly all aspects of Garcia's fee petition, including Garcia's status as a prevailing party. Cf Daly v. Hill, 790 F.2d 1071, 1080 (4th Cir. 1986) (determining that the district court had not abused its discretion in finding 37.9 hours billed for a fee petition to be unreasonable in part because "there was no dispute as to the attorney's entitlement to fees").
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Having examined the remaining hours expended on the case to which Defendants raise no objection, the Court finds them to be reasonable. The Court thus calculates the total reasonable hours expended on this litigation to be 1,064.1. In reaching this calculation, the Court addressed the first three Johnson factors: (l) the time and labor expended, (2) the novelty and difficulty of the questions raised, and (3) the skill required to properly perform the legal services rendered. See McAfee, 738 F.3d at 88 n.5.
2. Reasonable Rates In this case, Garcia was represented by three attorneys: Robert Com-Revere, Ronald London, and Alison Schary. His case was staffed by one paralegal. Com-Revere asserts that these attorneys' standard billing rates to paying clients are as follows: Com-Revere seeks $755 per hour; London seeks $620 per hour; Schary seeks $515 per hour. The paralegal is billed at $340 per hour. Garcia provides affidavits from two other attorneys, Charles D. Tobin and Jeffrey L. Light, attesting that the requested rates are reasonable for equivalently experienced First Amendment litigators in the Washington D.C. area. To establish that a particular billing rate is reasonable, a fee petitioner "must produce specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award." Spell, 824 F.2d at 1402. Garcia's counsel asserts that the proposed billing rates are in line with the rates in the "Washington D.C. metropolitan area," Mot. Atty. Fees at 20, but this claim is based on the assumption that rates in Washington, D.C. are the same as those in the surrounding communities such as Montgomery County, Maryland. Although Montgomery County, where the events in this case occurred, is adjacent to Washington, D.C., that geographic proximity is not enough to establish that Washington D.C. is the relevant community. Indeed, the Fourth Circuit upheld the conclusion of the United States
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District Court for the Eastern District of Virginia that evidence of prevailing rates in Washington D.C. had not been shown to be a "reliable indicator of the hourly rates of litigation attorneys" in Reston, Virginia, a suburb of Washington, D.C. See Grissom, 549 F.3d at 323. Because this case centered on Montgomery County, both as a defendant and as the location of the events at issue, the Court determines that Montgomery County, not Washington, D.C., is the relevant community.
Garcia asserts that regardless of the relevant community, Com-Revere has specialized expertise in First Amendment litigation that justifies his higher billing rate. "Rates charged by attorneys in other cities ... may be considered when the complexity and specialized nature of a case ... mean that no attorney, with the required skills, is available locally." Rum Creek, 31 F.3d at 179. Garcia offers an example of New York and Washington, D.C. hourly rates used in a fee award in a South Carolina First Amendment case. Garcia, however, has provided no basis to support the conclusion that no Maryland-based counsel was qualified and available to litigate his claims in this case. Although First Amendment law is a specialized field, the legal and factual issues in this case were not so complex that only a select few attorneys with high billing rates could have successfully advanced Garcia's case. The Court therefore does not accept Garcia's proposed billing rates or his alternative suggestion to determine the reasonable rates with reference to the Laffey Matrix, a billing guideline for Washington, D.C. attorneys. See Grissom, 549 F.3d at 323 (rejecting the Laffey Matrix as a reasonable rate for the Washington, D.C. suburb of Reston, Virginia); Robinson v. Equifax Info Servs., LLC, 560 F.3d 235, 245 (4th Cir. 2009) (noting that the district court had "properly recognized that the Laffey Matrix is not binding upon the United States District Court for the Eastern District of Virginia" and was not, by itself, a "reliable indicator of the hourly rates of litigation attorneys in Alexandria, Virginia, a
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suburb of Washington D.C.") (quoting Grissom, 549 F.3d at 323); Nat'l Elec. Benefit Fund v. Mirarchi Bros., Inc., No. DKC-11-2621, 2013 WL 2637524 at *4 (D. Md. June 11, 2013) (finding that "the Laffey Matrix is not binding upon the United States District Court for the District of Maryland" and the plaintiff had not shown that it was a "reliable indicator of the hourly rates of attorneys in [southern Maryland], a suburb of Washington, D.C.") (quoting Robinson, 560 F.3d at 245);_Life Tech. Corp. v. Life Tech Corp., No. RWT-1O-3527, 2012 WL 4748080 at *2 (D. Md. Oct. 2,2012) (emphasizing that the Fourth Circuit and this District have repeatedly held that the Laffey Matrix is not "sufficient evidence of the prevailing market rate in this jurisdiction or other areas bordering the District of Columbia, which tends to have higher prevailing rates") (citation omitted). The Court instead relies on the guidelines for attorney's fees set by this Court in its Local Rules. See D. Md. Local. R. App'x B: Guideline 3. In doing so, the Court applies the Johnson factors of the customary fee for like work and attorney's fees awards in comparable cases. See McAfee, 738 F.3d at 88 n.5.
In identifying the specific rate, the Court considers the following Johnson factors: (1) the attorney's opportunity costs in pressing the instant litigation; (2) the attorney's expectations at the outset of the litigation; (3) the time limitations imposed by the client or circumstances; (4) the experience, reputation, and ability of the attorney; (5) the undesirability of the case within the legal community in which the suit arose; and (6) the nature and length of the professional relationship between attorney and client. See id No facts have been presented that the client imposed any time limitations, or that the nature of any prior relationship between the attorneys and the client had any particular impact on the appropriate billing rates.
Com-Revere has been a member of the bar since 1983 and has extensive experience litigating constitutional law claims, particularly First Amendment claims. For an attorney
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admitted to the bar for 20 or more years, this Court's Guidelines Regarding Hourly Rates provide for an hourly billing range of $300-$475. In light of Corn-Revere's 35 years of experience and reputation in the field of First Amendment law, as well as his standard billing rate which reflects the opportunity cost of this case and his expectations at the outset, the Court finds that his hours should be billed at the highest rate of $475 per hour.
Ronald London has been practicing law since 1995 and also has extensive experience in First Amendment litigation. London, with 22-23 years of experience, is at the lower end of the range of attorneys with 20 or more years of experience and thus would ordinarily be granted a billing rate close to $300. Because of his experience in the field of First Amendment law, as well as his standard billing rate which reflects the opportunity cost of this case and his expectations at the outset, the Court finds that a higher rate is appropriate. An additional consideration is that a lawsuit against a police department and police officers may be viewed by some in the community as an undesirable case. Considering all of these factors, the Court finds that London's hours should be billed at $425 per hour.
Alison Schary has been practicing law since 2009 and has begun building a practice in First Amendment litigation. For an attorney admitted to the bar for 9 to 14 years, this Court's Guidelines Regarding Hourly Rates provide for an hourly billing range of $225-$350. Although Schary's experience is at the low end of this range, which would typically warrant a $225 per hour rate, the Court considers Schary's standard billing rate which reflects the opportunity cost of this case and her expectations at the outset, as well as the potential undesirability of the case, and finds that Schary's hours should be billed at a rate of $300 per hour.
The paralegal assigned to this case has over 30 years of experience in litigation. This Court's Guidelines Regarding Hourly Rates provide for an hourly billing range of $95-$150 for
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paralegals and law clerks. In light of the extent of the paralegal's experience, the Court finds

that her hours should be billed at a rate of $150 per hour.

The Court thus computes the lodestar as follows:

Personnel Com-Revere London Schary Paralegal TOTAL

Reasonable Hours 402.1 433.3 178.6 50.1
1,064.1

Reasonable Rate $475 $425 $300 $150

Lodestar $190,997.50 $184,152.50 $53,580.00 $7,515.00 $436,245.00

B. Successful and Unsuccessful Claims

Once a court has determined the reasonable hours and the reasonable rate, it is "obliged

to subtract fees for hours spent on unsuccessful claims unrelated to the successful ones."

McAfee, 738 F.3d at 91 (citation omitted). A plaintiffs claim is unrelated if it is "based on

different facts and legal theories." Hensley, 461 U.S. at 434. Such claims are distinguished from

related claims as follows:

When the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised.

Id. at 440 (emphasis added).

Here, Defendants correctly note that Garcia had mixed success on his claims. For

example, the Court dismissed all of Garcia's claims against officers in their official capacity and

all claims against Lt. Sheelor, it granted summary judgment against Garcia on his First

Amendment damages claims against Officers Baxter and Malouf based on qualified immunity

and on his First Amendment retaliation claim against Officer Baxter, and Garcia voluntarily

dismissed his Monell claim and the claims against Chief Manger. Garcia has conceded that the

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Monell claim was unsuccessful and sufficiently unrelated such that he has excluded attorney's fees for that claim from the fee petition. See McAfee, 738 F.3d at 92 (upholding reduction for work on an unsuccessful claim where the hours worked on that claim could be identified and deducted on a line-by-line basis).
The other claims on which Garcia was not ultimately successful were closely related to claims on which he was the prevailing party. As discussed above, the Stipulation of Dismissal expressly states that, for purposes of the fee petition, the parties agreed to treat Garcia as the prevailing party for all fee-shifting claims "the Court left for a trial by the jury, and for which qualified immunity from damages was not granted." Stipulation at 1. Even under the most narrow reading advocated by Defendants, the parties agreed that Garcia prevailed on his Fourth Amendment and First Amendment retaliation claims against Officer Malouf, and his PP A claim against Montgomery County, as all are fee-shifting claims that were slated for trial and for which this Court granted no qualified immunity. Garcia, 145 F. Supp. 3d at 513-16, 522-23. Those claims cover the full relevant factual universe of this case. The entire encounter between Garcia and MCPD officers on June 16, 2011 was relevant to the Fourth Amendment claim against Officer Malouf, and the later MCPD police activities outside Garcia's residence were relevant to the First Amendment retaliation claim against Officer Malouf. The unsuccessful claims, including the First Amendment damages claims, the state law claims, and claims dismissed against specific officers, all arise from the same set of facts. Thus, the unsuccessful claims are not "distinct in all respects" from the successful claims, but are instead "related" to those claims. Hensley, 461 U.S. at 440.
This conclusion is reinforced by the Court's determination, as discussed above, that Garcia was a prevailing party on the First Amendment declaratory judgment claim. See supra
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part I. This claim, too, arises from the same facts as the Fourth Amendment claim: the entire encounter between Garcia and MCPD officers on June 16, 2011. Accordingly, the First Amendment declaratory judgment claim provides another basis by which to conclude that the unsuccessful claims were related to the successful claims based on their common set of facts.
Because of their overlapping facts and legal theories, any parsing of successful from unsuccessful claims for purposes of billing would be a difficult and fraught enterprise. See City of Riverside v. Rivera, 477 U.S. 561, 570-73 (1986) (holding that the district court correctly declined to parse unsuccessful claims from successful ones because "[t]he time devoted to claims on which plaintiffs did not prevail cannot reasonably be separated from time devoted to claims on which plaintiffs did prevail"). Indeed, in Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987), the Fourth Circuit held that the district court had erred in reducing billable hours for unsuccessful claims for false arrest, false imprisonment, and malicious prosecution where those claims and a
successful S 1983 claim for an unconstitutional strip search "arose from a common core of
facts." Id. at 1282-83 (citing Hensley). Here, as in Abshire, the facts surrounding the First Amendment, Fourth Amendment,
PPA, and state law claims were "inextricably intertwined" such that "it is impossible to isolate the inquiry" into discrete claims. Id. at 1283. For example, all of the depositions were of witnesses who could not be deemed to have been relevant to an unsuccessful claim only. Questions about Garcia's interactions with the police on June 16,2011, and about the subsequent presence of police officers near Garcia's residence, related directly to both successful and unsuccessful claims. The main legal filings, the motion to dismiss and the cross motions for summary judgment, addressed these common facts and legal arguments relating to both successful and unsuccessful claims. Because the Court concludes that the successful and
22

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unsuccessful claims were related, it will not attempt to calculate a reduction in the attorney's fee award based on the work isolated to unsuccessful claims. See Cooper v. Dyke, 814 F.2d 941, 950 (4th Cir. 1987) ("[W]here all claims are closely related because based on common facts or related legal theories, a court is not obligated to determine which hours were spent on which claims. A contrary rule would be unworkable and would discourage innovative litigation.") (citing City of Riverside, 477 U.S. at 570-73).
To the extent that the lack of success on related claims should affect the attorney's fee award, it is addressed in the next step of the analysis, degree of success. See Hensley, 461 U.S. at 440 ("But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.").
C. Degree of Success Lastly, the Court must "consider the extent of success" when settling on a fee award. Hensley, 461 U.S. at 439. Under this factor, if a plaintiff obtains "excellent results," the attorney should receive a fully compensatory fee, even if "the plaintiff failed to prevail on every contention raised in the lawsuit," because it is appropriate for litigants to assert good faith, alternative legal grounds for the same desired outcome. ld. at 435. On the other hand, ifthere is only "partial or limited success," a fully compensatory fee may be "an excessive amount." ld. at 436. A victory that does little more than provide "the moral satisfaction of knowing that [one's] rights had been violated," would justify only a modest fee award. Farrar, 506 U.S. at 114. The central question of this inquiry is whether "the plaintiff achieve [d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award." Hensley, 461 U.S. at 434.
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Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 24 of 28
Notably, the Supreme Court has expressly "reject( ed] the proposition that fee awards
under S 1988 should necessarily be proportionate to the amount of damages a civil plaintiff
actually recovers." City of Riverside, 477 U.S. at 574. Instead, courts must be mindful that civil rights actions are "more than a private tort suit benefiting only the individual plaintiffs whose rights were violated." Id. A successful plaintiff "often secures important social benefits that are not reflected in nominal or relatively small damages awards," but which warrant the awarding of fees. Id.
Based on these principles, the Court declines to adopt Defendants' proposed measures of the success or lack of success in this case. Defendants assert that Garcia was unsuccessful on the "vast majority" of his claims because claims against four Defendants were dismissed entirely, and individual claims against specific remaining Defendants were also dismissed, such that, they assert, over 40 claims against specific Defendants were dismissed. Opp'n Mot. Atty. Fees at 26, ECF No. 101. This mode of accounting, however, ignores the fact that after summary judgment, seven of the eight causes of action remained intact against at least one Defendant, and that lack of success on asserted alternative grounds do not necessarily undermine overall success. See Hensley, 461 U.S. at 435 & nJl (agreeing with the district court's rejection of a "mathematical approach comparing the total number of issues in the case with those actually prevailed upon").
Likewise, Defendants' contention that Garcia's $45,000 monetary recovery should be measured against the $500,000 in compensatory damages and $500,000 in punitive damages pleaded in the first Complaint filed by predecessor counsel is unpersuasive. Among other considerations, the Court is required to "compare the amount of damages sought to the amount awarded." McAfee, 738 F.3d at 93. However, beyond the fact that present counsel should not be bound by a filing made by unrelated counsel, the success of this case hinges much more on the
24

Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 25 of 28
public benefits relating to vindication of constitutional rights rather than the specific amount received by Garcia. See City of Riverside, 477 U.S. at 574. Likewise, the more limited comparison of the $45,000 settlement payment to the approximately $130,000 in damages identified by Garcia in discovery, though relevant, is not dispositive.
Nevertheless, the Court agrees with Defendants that Garcia did not achieve total success. Garcia sought the following relief in his Complaint: (l) a declaratory judgment that his constitutional rights were violated based on his arrest; (2) a declaratory judgment that his constitutional rights were violated by the seizure of his camera and video card; (3) unspecified compensatory damages; (4) unspecified actual damages; (5) unspecified punitive damages; and (6) injunctive relief barring MCPD from arresting individuals exercising their First Amendment right to record police activity and requiring MCPD to implement a policy to train officers on those First Amendment rights. Through these claims, he sought to hold Montgomery County and five officers accountable, including through damages awards against the individual officers.
After the settlement, Garcia received the $45,000 payment, secured a federal court ruling that peaceful videorecording of police activity is protected by the First Amendment, and secured a commitment that MCPD would provide training to police officers on this principle and how to comply with it. Although Defendants claim that the Training Bulletin was simply voluntary activity that cannot form the basis of prevailing party status, see Buckhannon, 532 U.S. at 605, the issue here is not whether it confers prevailing party status, but whether its adoption can be credited as a component of Garcia's success in this case. Upon consideration of the underlying circumstances, the Court finds that it was not simply voluntary activity. Where it mirrored the Court's ruling on a motion filed by Garcia, was finalized the day before the settlement agreement, was a necessary condition to Garcia's willingness to agree to the remaining
25

Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 26 of 28
settlement terms, and was referenced in the settlement agreement, the Court concludes that the Training Bulletin was compelled by Garcia's actions in this case which secured a favorable legal ruling, and that it is fairly considered to be one aspect of Garcia's success in this case.
At the same time, Garcia did not secure a declaratory judgment or an admission by MCPD that his First Amendment rights were violated during the June 16, 2011 encounter, nor did he obtain injunctive relief barring MCPD from arresting individuals recording police activity in the future. He also did not secure damages awards, including punitive damages awards, against Officers Malouf and Baxter based on his First Amendment claim, did not prevail on his claim that Officer Baxter had retaliated against him, and did not prevail on his state law claims of battery, malicious prosecution, and false imprisonment, which in any event are not subject to an
attorney's fee award under S 1983.
Accordingly, the Court concludes that Garcia achieved only partial success, warranting some reduction below the lodestar figure. Certainly, there should be some recognition of the fact that some portion of the attorneys' billable time, even if inextricably intertwined, was expended on unsuccessful or ineligible claims, as reflected in the billing records and in portions of Defendants' briefs on motions discussing issues such as official capacity claims, qualified immunity, and state law claims. See Hensley, 461 U.S. at 436 (noting that in adjusting an attorney's fee award based on partial success, a court "may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success"). Moreover, the lack of damages recovered on the First Amendment claim and the lack of formal declaratory or injunctive relief also warrant a reduction based on limited success.
On balance, the Court concludes that a reduction of 35 percent is warranted. This reduction reflects the Court's assessment of the final remaining Johnson factor, the amount in
26

Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 27 of 28
controversy and the results obtained. See McAfee, 738 F.3d at 88 n.5. It reflects both a general estimate of the hours expended on unsuccessful claims and the fact that Garcia did not achieve all of the relief sought. At the same time, it recognizes that in securing a significant monetary payment, a court ruling establishing in this jurisdiction the principle that citizens have a First Amendment right to record police activity, and a commitment that MCPD police officers will be trained on this principle, Garcia achieved a significant success with substantial public benefit. Given these factors, the fact that the attorney's fee award is approximately six times the damages recovery by Garcia does not render it disproportionate or unreasonable. Compare City of Riverside, 477 U.S. at 564-66, 572 (affirming a fee award that was approximately seven times the plaintiffs monetary recovery), with McAfee, 738 F.3d at 94 (finding a fee award of more than 100 times the damages award to be excessive).
With this adjustment for partial success, the Court will award attorney's fees in the amount of$283,559.25. III. Costs
Garcia also seeks $12,402.34 in costs. A prevailing party is entitled to reasonable litigation expenses. Daly, 790 F.2d at 1084. Those expenses may include "reasonable out-ofpocket expenses incurred by the attorney which are normally charged to a fee-paying client." Spell, 824 F.2d at 771. Defendants raise no objection to the costs proposed, so the Court will award Garcia the full $12,402.34.
CONCLUSION For the foregoing reasons, Garcia's Motion for Attorney's Fees and Costs is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED to the extent that Garcia is
27

Case 8:12-cv-03592-TDC Document 106 Filed 03/22/18 Page 28 of 28

awarded $283,559.25 in fees and $12,402.34 in costs. The Motion is otherwise DENIED. A separate order shall issue.

Date: March 22,2018

!3::=:~. / ..
THEODORE IJ:CHU~
United States District Judge

28

 
 Case: 8:12-cv-3592 As of: 06/10/2019 09:04 PM EDT 1 of 10
CASREF,CLOSED
U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:12−cv−03592−TDC

Garcia v. Montgomery County, Maryland et al Assigned to: Judge Theodore D. Chuang Referred to: Magistrate Judge William Connelly (Settlement) Cause: 42:1983 Civil Rights Act − Civil Action for Deprivation of Rights
Plaintiff

Date Filed: 12/07/2012 Date Terminated: 03/06/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Mannie Garcia

represented by Ronald G London Davis Wright Tremaine LLP 1919 Pennsylvania Ave NW Ste 800 Washington, DC 20006−3401 12029734235 Fax: 12029734499 Email: ronnielondon@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison B Schary Davis Wright Tremaine LLP 1919 Pennsylvania Ave NW Ste 800 Washington, DC 20009 2029734200 Fax: 2029734499 Email: alisonschary@dwt.com ATTORNEY TO BE NOTICED

Robert Corn Revere Davis Wright Tremaine LLP 1919 Pennsylvania Ave NW Ste 800 Washington, DC 20006 12029734225 Fax: 12029734499 Email: bobcornrevere@dwt.com PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Montgomery County, Maryland

represented by Jeannette Linda Frumkin The Office of The Montgomery County Attorney 101 Monroe Street, 3rd Floor Rockville, MD 20850 2407776700 Email: Jeannette.Frumkin@montgomerycountymd.gov TERMINATED: 08/28/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rosalyn Tang Miles & Stockbridge P.C. 11 North Washington St Ste 700 Rockville, MD 20850 3017621600

Case: 8:12-cv-3592 As of: 06/10/2019 09:04 PM EDT 2 of 10

Fax: 3017620363 Email: rtang@milesstockbridge.com TERMINATED: 10/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Lisehora Kane Office of the Montgomery County Attorney 101 Monroe St 3rd Fl Rockville, MD 20850 12407776743 Fax: 12407776706 Email: patricia.kane@montgomerycountymd.gov ATTORNEY TO BE NOTICED

Defendant
Chief of Police Thomas Manger in his official capacity TERMINATED: 06/24/2016

represented by Rosalyn Tang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Lisehora Kane (See above for address) ATTORNEY TO BE NOTICED

Defendant
Officer Christopher Malouf in his official and individual capacities

represented by Jeannette Linda Frumkin (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rosalyn Tang (See above for address) TERMINATED: 10/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Lisehora Kane (See above for address) ATTORNEY TO BE NOTICED

Defendant
Officer Kevin Baxter in his official and individual capacities

represented by Jeannette Linda Frumkin (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rosalyn Tang (See above for address) TERMINATED: 10/02/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia Lisehora Kane (See above for address) ATTORNEY TO BE NOTICED

Defendant
Officer Michael Graves in his official capacity

represented by Patricia Lisehora Kane (See above for address)

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ATTORNEY TO BE NOTICED

Defendant
Lieutenant Mark Sheelor in his official and individual capacities

represented by Patricia Lisehora Kane (See above for address) ATTORNEY TO BE NOTICED

Amicus UNITED STATES OF AMERICA

Date Filed 12/07/2012 12/07/2012
12/07/2012 12/07/2012 12/10/2012
01/10/2013
01/11/2013 01/15/2013 01/31/2013
02/01/2013 02/01/2013 02/01/2013
02/06/2013

# Docket Text
Judge J. Frederick Motz added. (rss, Deputy Clerk) (Entered: 12/07/2012)
1 COMPLAINT against Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor ( Filing fee $ 350 receipt number 0416−3835436.), filed by Mannie Garcia. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(London, Ronald) (Entered: 12/07/2012)
2 MOTION to Appear Pro Hac Vice for Robert Corn−Revere ( Filing fee $ 50, receipt number 0416−3836045.) by Mannie Garcia (London, Ronald) (Entered: 12/07/2012)
3 Summons Issued 21 days as to Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland and Mark Sheelor. (sls, Deputy Clerk) (Entered: 12/07/2012)
4 PAPERLESS ORDER granting 2 Motion to Appear Pro Hac Vice for attorney Robert Corn Revere on behalf of Mannie Garcia. Directing attorney Robert Corn Revere to register on−line for CM/ECF at https://www.mdd.uscourts.gov/attyregB/inputProHac.asp. Signed by Clerk on 12/10/12. (cmns, Deputy Clerk) (Entered: 12/10/2012)
5 Consent MOTION for Extension of Time to File Response/Reply as to 1 Complaint, by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor. Responses due by 1/28/2013 (Kane, Patricia) (Entered: 01/10/2013)
6 SUMMONS Returned Executed by Mannie Garcia. All Defendants. (Corn Revere, Robert) (Entered: 01/11/2013)
7 Paperless ORDER granting 5 Motion for Extension of Time to File Response/Reply. Signed by Judge J. Frederick Motz on 1/15/13. (Motz, J.) (Entered: 01/15/2013)
8 MOTION to Dismiss for Failure to State a Claim by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor Responses due by 2/19/2013 (Attachments: # 1 Exhibit, # 2 Exhibit)(Kane, Patricia) (Entered: 01/31/2013)
9 MOTION for Extension of Time by Christopher Malouf Responses due by 2/19/2013 (Kane, Patricia) (Entered: 02/01/2013)
10 Paperless ORDER granting 9 Motion for Extension of Time. Signed by Judge J. Frederick Motz on 2/1/13. (Motz, J.) (Entered: 02/01/2013)
11 MOTION to Dismiss for Failure to State a ClaimAMENDED PARA 8 by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor Responses due by 2/19/2013 (Kane, Patricia) (Entered: 02/01/2013)
12 Consent MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss for Failure to State a ClaimAMENDED PARA 8, 8 MOTION to Dismiss for Failure to State a Claim by Mannie Garcia Responses due by 2/25/2013 (Corn Revere, Robert) (Entered: 02/06/2013)

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02/08/2013 13 Paperless ORDER granting 12 Motion for Extension of Time to File Response/Reply. Signed by Judge J. Frederick Motz on 2/8/13. (Motz, J.) (Entered: 02/08/2013)

02/08/2013 14 ANSWER to 1 Complaint, Counts III,VI, VII and VIII by Christopher Malouf.(Kane, Patricia) (Entered: 02/08/2013)

03/04/2013

15 NOTICE by UNITED STATES OF AMERICA Statement of Interest (Attachments: # 1 Exhibit Statement of Interest of the United States, Sharp v. Baltimore City Police Dept., et al., No. 1:11−cv−02888, # 2 Exhibit Letter from Jonathan M. Smith to Mark H. Grimes and Mary E. Borja (BPD Letter))(Ogletree, Rashida) (Entered: 03/04/2013)

03/05/2013

16 RESPONSE in Opposition re 11 MOTION to Dismiss for Failure to State a ClaimAMENDED PARA 8 filed by Mannie Garcia. Replies due by 3/22/2013. (Corn Revere, Robert) (Entered: 03/05/2013)

03/20/2013

17 Consent MOTION for Extension of Time to File Response/Reply as to 16 Response in Opposition to Motion Consent Motion for Extension of Time to Respond to Plaintiff's Opposition to Defendants' Amended Motion to Dismiss/Partially Dismiss Counts I to VII of Plaintiff's Complaint and for Other Relief by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor Responses due by 4/8/2013 (Kane, Patricia) (Entered: 03/20/2013)

03/20/2013 18 Paperless ORDER granting 17 Motion for Extension of Time to File Response/Reply. Signed by Judge J. Frederick Motz on 3/20/13. (Motz, J.) (Entered: 03/20/2013)

04/04/2013

19 REPLY to Response to Motion re 11 MOTION to Dismiss for Failure to State a ClaimAMENDED PARA 8, 8 MOTION to Dismiss for Failure to State a Claim filed by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor. (Kane, Patricia) (Entered: 04/04/2013)

08/23/2013 20 MEMORANDUM. Signed by Judge J. Frederick Motz on 8/23/13. (bmhs, Deputy Clerk) (Entered: 08/26/2013)

08/23/2013

21 ORDER granting in part and denying in part 11 Defendants' Amended Motion to Dismiss Counts I through VII of Plaintiffs Complaint. Signed by Judge J. Frederick Motz on 8/23/13. (bmhs, Deputy Clerk) (Entered: 08/26/2013)

08/26/2013 22 Correspondence setting scheduling conference. (Attachments: # 1 tentative scheduling order, # 2 discovery call in hour letter)(Motz, J.) (Entered: 08/26/2013)

09/09/2013

23 Consent MOTION for Extension of Time to Answer by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland Responses due by 9/26/2013 (Kane, Patricia) (Entered: 09/09/2013)

09/10/2013 24 Paperless ORDER granting 23 Motion for Extension of Time. Signed by Judge J. Frederick Motz on 9/10/13. (Motz, J.) (Entered: 09/10/2013)

09/13/2013 25 Defendant Montgomery County's ANSWER to 1 Complaint, Count V of Plaintiff's Complaint by Montgomery County, Maryland.(Kane, Patricia) (Entered: 09/13/2013)

09/13/2013

26 Defendant Detective Malouf's and Baxter's ANSWER to 1 Complaint, to Counts I and II of Plaintiff's Complaint by Kevin Baxter, Christopher Malouf.(Kane, Patricia) (Entered: 09/13/2013)

09/20/2013 27 SCHEDULING ORDER: Status Report due by 4/18/2014. Signed by Judge J. Frederick Motz on 9/20/13. (bmhs, Deputy Clerk) (Entered: 09/20/2013)

09/20/2013

Scheduling Conference held on 9/20/2013 before Judge J. Frederick Motz. (Court Reporter: None) (mds, Deputy Clerk) (Entered: 11/05/2013)

02/18/2014

28 NOTICE of Appearance by Rosalyn Tang on behalf of Kevin Baxter, Christopher Malouf, Thomas Manger, Montgomery County, Maryland (Tang, Rosalyn) (Entered: 02/18/2014)

03/18/2014

29 Joint MOTION for Extension of Time to Complete Discovery and to File Dispositive Motions by Mannie Garcia Responses due by 4/4/2014 (Attachments: # 1 Text of Proposed Order)(Corn Revere, Robert) (Entered: 03/18/2014)

03/19/2014 30 Paperless ORDER granting 29 Motion for Extension of Time to Complete Discovery. Signed by Judge J. Frederick Motz on 3/19/2014. (Motz, J.) (Entered: 03/19/2014)

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03/19/2014 31 NOTICE of Appearance by Alison B Schary on behalf of Mannie Garcia (Schary, Alison) (Entered: 03/19/2014)

04/18/2014

32 MOTION to Compel & Local Rule 104.7 Certification by Mannie Garcia Responses due by 5/5/2014 (Attachments: # 1 Exhibit 1 (Plaintiff's Motion to Compel), # 2 Exhibit 2 (Defendants' Opposition to Motion to Compel), # 3 Exhibit 3 (Plaintiff's Reply in support of Motion to Compel), # 4 Certificate of Service)(London, Ronald) (Entered: 04/18/2014)

06/04/2014 33 MEMORANDUM to Counsel. Signed by Judge J. Frederick Motz on 6/3/14. (bmhs, Deputy Clerk) (Entered: 06/04/2014)

06/06/2014

Case reassigned to Judge Theodore David Chuang. Judge J. Frederick Motz no longer assigned to the case. (cags, Deputy Clerk) (Entered: 06/06/2014)

06/11/2014

34 NOTICE by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor re 33 Memorandum to Parties Defendants' Response to Court's Memo to Counsel (Kane, Patricia) (Entered: 06/11/2014)

06/13/2014

35 Joint MOTION for Extension of Time to Complete Discovery and to File Dispositive Motions by Mannie Garcia Responses due by 6/30/2014 (Attachments: # 1 Text of Proposed Order)(London, Ronald) (Entered: 06/13/2014)

06/16/2014

36 ORDER GRANTING 35 Joint MOTION for Extension of Time to Complete Discovery and to File Dispositive Motions. Signed by Judge Theodore D. Chuang on 6/16/2014. (rss, Deputy Clerk) (Entered: 06/16/2014)

06/16/2014

37 MOTION for Reconsideration re 33 Memorandum to Parties by Mannie Garcia Responses due by 7/3/2014 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(London, Ronald) (Entered: 06/16/2014)

06/30/2014

38 RESPONSE in Opposition re 37 MOTION for Reconsideration re 33 Memorandum to Parties Opposition to Plaintiff's Motion for Reconsideration of Court's June 3, 2014, Memo to Counsel Regarding Plaintiff's Motion to Compel filed by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor. Replies due by 7/17/2014. (Kane, Patricia) (Entered: 06/30/2014)

07/02/2014

39 REPLY to Response to Motion re 37 MOTION for Reconsideration re 33 Memorandum to Parties filed by Mannie Garcia. (London, Ronald) (Entered: 07/02/2014)

07/17/2014

40 MOTION to Compel Deposition Testimony and for Clarification of Bifurcation by Mannie Garcia Responses due by 8/4/2014 (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Text of Proposed Order)(Corn Revere, Robert) (Entered: 07/17/2014)

07/30/2014

41 RESPONSE in Opposition re 40 MOTION to Compel Deposition Testimony and for Clarification of Bifurcation filed by Kevin Baxter, Christopher Malouf, Thomas Manger, Montgomery County, Maryland. Replies due by 8/18/2014. (Kane, Patricia) (Entered: 07/30/2014)

08/06/2014

42 REPLY to Response to Motion re 40 MOTION to Compel Deposition Testimony and for Clarification of Bifurcation filed by Mannie Garcia. (Attachments: # 1 Appendix C, # 2 Appendix D, # 3 Appendix E, # 4 Appendix F, # 5 Appendix G, # 6 Appendix H, # 7 Appendix I, # 8 Appendix J)(Corn Revere, Robert) (Entered: 08/06/2014)

08/13/2014

43 MOTION for Extension of Time to Complete Discovery and to Amend June 16, 2014 Scheduling Order by Mannie Garcia Responses due by 9/2/2014 (Attachments: # 1 Text of Proposed Order)(London, Ronald) (Entered: 08/13/2014)

08/15/2014 44 Status Report Submitted by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland (Kane, Patricia) (Entered: 08/15/2014)

08/22/2014

45 MOTION to Strike Material Changes to the Deposition Testimony of Defendant Kevin Baxter by Mannie Garcia Responses due by 9/8/2014 (Attachments: # 1 Memorandum of Points and Authorities in Support of Motion to Strike, # 2 Exhibit 1 to Memorandum of Points and Authorities, # 3 Exhibit 2 to Memorandum of Points and Authorities, # 4 Text of Proposed Order)(London, Ronald) (Entered: 08/22/2014)

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08/28/2014

46 ORDER DENYING 37 Motion for Reconsideration re 33 Memorandum to Parties ; GRANTING IN PART 40 Motion to Compel Deposition Testimony and for Clarification of Bifurcation; REFERRING all further discovery disputes to a United States Magistrate Judge for disposition as to 40 Motion to Compel Deposition Testimony, 43 Motion for an Extension of Time to Complete Discovery, 45 Motion to Strike Material Changes. Signed by Judge Theodore D. Chuang on 8/27/2014. (rss, Deputy Clerk) (Entered: 08/28/2014)

08/29/2014

47 ORDER REFERRING CASE to Magistrate Judge Jillyn K Schulze for discovery. Signed by Judge Theodore D. Chuang on August 29, 2014. (kdm, Chambers) (Entered: 08/29/2014)

08/29/2014

48 RESPONSE in Opposition re 43 MOTION for Extension of Time to Complete Discovery and to Amend June 16, 2014 Scheduling Order Defendants' Opposition to Plaintiff's Motion for An Extension of Time to Complete Discovery filed by Kevin Baxter, Michael Graves. Replies due by 9/15/2014. (Kane, Patricia) (Entered: 08/29/2014)

09/02/2014

49 REPLY to Response to Motion re 43 MOTION for Extension of Time to Complete Discovery and to Amend June 16, 2014 Scheduling Order filed by Mannie Garcia. (London, Ronald) (Entered: 09/02/2014)

09/05/2014

50 RESPONSE in Opposition re 45 MOTION to Strike Material Changes to the Deposition Testimony of Defendant Kevin Baxter filed by Kevin Baxter, Christopher Malouf. Replies due by 9/22/2014. (Attachments: # 1 Exhibit)(Kane, Patricia) (Entered: 09/05/2014)

09/09/2014

51 REPLY to Response to Motion re 45 MOTION to Strike Material Changes to the Deposition Testimony of Defendant Kevin Baxter filed by Mannie Garcia. (Attachments: # 1 Exhibit A)(London, Ronald) (Entered: 09/09/2014)

09/26/2014

52 PAPERLESS ORDER denying 32 Motion to Compel for the reasons set forth in Judge Motz's Memorandum to Counsel (ECF No. 33) and the Court's August 28, 2014 Order (ECF No. 46). Signed by Judge Theodore D. Chuang on 9/26/14. (Chuang, Theodore) (Entered: 09/26/2014)

10/02/2014 53 NOTICE by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland Line Withdrawing Appearance of Rosalyn Tang (Kane, Patricia) (Entered: 10/02/2014)

10/02/2014

54 PAPERLESS ORDER Approving 53 Line Withdrawing Appearance of Rosalyn Tang, as co−counsel for Defendants' Montgomery County, Officer Christopher Malouf, and Officer Kevin Baxter. Signed by Judge Theodore D. Chuang on 10/02/2014. (Chuang, Theodore) Modified on 10/2/2014 (jf2s, Deputy Clerk). (Entered: 10/02/2014)

10/02/2014

55 Consent MOTION Defendants' Consent Motion for Relief Under Federal Rule of Civil Procedure 36(b) by Kevin Baxter, Christopher Malouf Responses due by 10/20/2014 (Kane, Patricia) (Entered: 10/02/2014)

10/03/2014

56 Joint MOTION for Extension of Time to File Dispositive Pretrial Motions by Mannie Garcia Responses due by 10/20/2014 (Attachments: # 1 Text of Proposed Order)(Corn Revere, Robert) (Entered: 10/03/2014)

10/06/2014

57 Paperless ORDER granting 55 Consent Motion to withdraw admissions, for reasons stated in the motion; granting 56 Motion for Extension of Time until 30 days after the completion of all discovery to file dispositive motions.. Signed by Magistrate Judge Jillyn K Schulze on 10/6/14. (Schulze, Jillyn) (Entered: 10/06/2014)

10/07/2014

58 ORDER scheduling a telephone motions hearing for November 17, 2014 at 2:00 p.m. Signed by Magistrate Judge Jillyn K Schulze on 10/6/14. (jf2s, Deputy Clerk) (Entered: 10/07/2014)

11/17/2014

Telephone Conference held on 11/17/2014 before Magistrate Judge Jillyn K Schulze. (Fosbrook 3A FTR.) (pkfs, Deputy Clerk) (Entered: 11/17/2014)

11/17/2014

59 Paperless ORDER documenting rulings made at hearing of November 17, 2014. For reasons stated on the record, 43 Plaintiff's Motion for Extension of Time to Complete Discovery, is granted in part and denied in part. Plaintiff may, within 30 days, reopen the Sheelor deposition for the limited purpose of inquiring regarding his investigation into the handling of the camera and memory card at issue, and whether such handling

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01/07/2015 01/08/2015 01/09/2015 01/20/2015
02/19/2015
03/24/2015 04/23/2015 05/18/2015 07/13/2015
07/15/2015

comported with Department policy. 45 Plaintiff's Motion to Strike Material Changes to Deposition Testimony is granted in full. All discovery related to these rulings must be completed within 30 days. Phase one of this bifurcated discovery is otherwise concluded. Signed by Magistrate Judge Jillyn K Schulze on 11/17/2014. (Schulze, Jillyn) (Entered: 11/17/2014)
Magistrate Judge Jillyn K Schulze no longer assigned to case. (aos, Deputy Clerk) (Entered: 01/07/2015)
60 PAPERLESS ORDER instructing the parties to submit a status report by Tuesday, January 13, 2015 that identifies whether any party plans to submit a dispositive motion. Note that in accordance with the October 6, 2014 and November 17, 2014 paperless Orders (ECF Nos. 57 and 59), the dispositive motions deadline is January 20, 2015. Signed by Judge Theodore D. Chuang on 1/8/2015. (Chuang, Theodore) (Entered: 01/08/2015)
61 STATUS REPORT Joint Status Report by Kevin Baxter, Christopher Malouf. (Kane, Patricia) (Entered: 01/09/2015)
62 MOTION for Summary Judgment Defendants' Motion for Summary Judgment by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland. Responses due by 2/6/2015 (Attachments: # 1 Table of Contents, # 2 Supplement Memo P&A Support MSJ, # 3 Exhibit List, # 4 Exhibit Exhibit 1, # 5 Exhibit Exhibit 2, # 6 Exhibit Exhibit 3A−E, # 7 Exhibit Exhibit 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6, # 10 Exhibit Exhibit 7A−C, # 11 Exhibit Exhibit 8, # 12 Exhibit Exhibit 9, # 13 Exhibit Exhibit 10, # 14 Exhibit Exhibit 11, # 15 Exhibit Exhibit 12, # 16 Exhibit Exhibit 13, # 17 Exhibit Exhibit 14, # 18 Exhibit Exhibit 15, # 19 Exhibit Exhibit 16, # 20 Exhibit Exhibit 17, # 21 Exhibit Exhibit 18, # 22 Exhibit Exhibit 19, # 23 Exhibit Exhibit 20A−E)(Kane, Patricia) (Entered: 01/20/2015)
63 Cross MOTION for Partial Summary Judgment by Mannie Garcia Responses due by 3/9/2015 (Attachments: # 1 Mem Points & Auth in Support and in Opp to Defs' MSJ, # 2 Decl. of R. London in Support, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Statement of Facts)(Corn Revere, Robert) (Entered: 02/19/2015)
64 RESPONSE in Opposition re 63 Cross MOTION for Partial Summary Judgment , 62 MOTION for Summary Judgment Defendants' Motion for Summary Judgment filed by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland. Replies due by 4/10/2015. (Attachments: # 1 Supplement, # 2 Supplement, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Kane, Patricia) (Entered: 03/24/2015)
65 REPLY to Response to Motion re 63 Cross MOTION for Partial Summary Judgment filed by Mannie Garcia. (Attachments: # 1 Decl. of R. London in Further Support, # 2 Exhibit 23, # 3 Exhibit 24, # 4 Exhibit 25, # 5 Exhibit 26, # 6 Exhibit 27, # 7 Exhibit 28)(Corn Revere, Robert) (Entered: 04/23/2015)
66 NOTICE by Mannie Garcia re 65 Reply to Response to Motion, 63 Cross MOTION for Partial Summary Judgment Supplemental Authority (Corn Revere, Robert) (Entered: 05/18/2015)
67 PAPERLESS NOTICE that a hearing is scheduled on 62 Motion for Summary Judgment and 63 Cross−Motion for Summary Judgment for Thursday, August 20, 2015 at 9:30 a.m. before Judge Theodore D. Chuang at the United States District Courthouse located at 6500 Cherrywood Lane, Greenbelt, Maryland. The specific courtroom for the hearing will be available on the Court's website, http://www.mdd.uscourts.gov/calendar/calendar.asp, the week of the proceeding. (nr, Chambers) (Entered: 07/13/2015)
68 Joint MOTION for Extension of Time To Continue Hearing Date by Mannie Garcia Responses due by 8/3/2015 (London, Ronald) (Entered: 07/15/2015)

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07/16/2015

69 PAPERLESS ORDER granting 68 Motion for Extension of Time. At the mutual request of the parties, the hearing on 62 Motion for Summary Judgment and 63 Cross−Motion for Summary Judgment has been rescheduled for September 9, 2015 at 9:30 a.m. before Judge Theodore D. Chuang at the United States District Courthouse located at 6500 Cherrywood Lane, Greenbelt, Maryland. The specific courtroom for the hearing will be available on the Court's website, http://www.mdd.uscourts.gov/calendar/calendar.asp, the week of the proceeding. Signed by Judge Theodore D. Chuang on 7/16/2015. (nr, Chambers) (Entered: 07/16/2015)

09/09/2015

70 Motion Hearing held on 9/9/2015 re 62 MOTION for Summary Judgment Defendants' Motion for Summary Judgment filed by Kevin Baxter, Montgomery County, Maryland, Christopher Malouf, 63 Cross MOTION for Partial Summary Judgment filed by Mannie Garcia before Judge Theodore D. Chuang. (Court Reporter: Cindy Davis−2B) (chs, Deputy Clerk) (Entered: 09/09/2015)

11/05/2015 71 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 11/5/2015. (bus, Deputy Clerk) (Entered: 11/05/2015)

11/05/2015

72 ORDER granting in part and denying in part 62 Defendants' Motion for Summary Judgment; granting in part and denying in part 63 Garcia's Cross−Motion for Partial Summary Judgment. Signed by Judge Theodore D. Chuang on 11/5/2015. (bus, Deputy Clerk) (Entered: 11/05/2015)

11/16/2015

73 PAPERLESS NOTICE that a telephone status conference is scheduled for December 2, 2015 at 10:00 a.m. to set a trial date. Instructions for the call will be emailed to the parties at a later date. (nr, Chambers) (Entered: 11/16/2015)

12/04/2015

74 PAPERLESS ORDER that, as stated at the December 2, 2015 telephone status conference, discovery on the Monell claim shall proceed. Discovery on that claim will close on April 29, 2016. Any dispositive motions as to that claim are due May 16, 2016; responses are due May 31, 2016; replies are due June 14, 2016. Signed by Judge Theodore D. Chuang on 12/4/2015. (nr, Chambers) (Entered: 12/04/2015)

12/24/2015

75 PRETRIAL SCHEDULING ORDER setting dates for trial and pretrial submissions. Signed by Judge Theodore D. Chuang on 12/24/2015. (bus, Deputy Clerk) (Entered: 12/28/2015)

04/29/2016

76 Joint MOTION to Continue Joint Motion to Modify Scheduling Order and Trial Date by Kevin Baxter, Christopher Malouf, Thomas Manger, Montgomery County, Maryland Responses due by 5/16/2016 (Kane, Patricia) (Entered: 04/29/2016)

05/13/2016

77 PAPERLESS ORDER granting in part and denying in part 76 Motion to Continue. The Motion is granted to the extent that all the discovery deadlines are reset as proposed by the parties, and denied only as to the proposed start date for the trial, which, with the mutual consent of the parties, will be moved to October 18, 2016, rather than the proposed October 25, 2016. Should the Monell claims be part of the trial, the parties agree that if Chief Manger's testimony is taken out of order to accommodate his schedule, the jury will be informed that his absence for the start of the trial is due to his pre−existing professional obligations. Signed by Judge Theodore D. Chuang on 5/13/2016. (nr, Chambers) (Entered: 05/13/2016)

06/23/2016

78 STIPULATION of Dismissal Consent Partial Stiuplation of Dismissal of Montgomery County with Prejudice by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor. (Kane, Patricia) (Entered: 06/23/2016)

06/23/2016

79 STIPULATION of Dismissal Consent Stiuplation of Dismissal of Chief Thomas Manger with Prejudice by Kevin Baxter, Michael Graves, Christopher Malouf, Thomas Manger, Montgomery County, Maryland, Mark Sheelor. (Kane, Patricia) (Entered: 06/23/2016)

06/24/2016

80 MARGINAL ORDER Granting 79 Consent Stipulation of Dismissal of Chief Thomas Manger with Prejudice. Signed by Judge Theodore D. Chuang on 6/24/2016. (jf3s, Deputy Clerk) (Entered: 06/24/2016)

06/24/2016 81 MARGINAL ORDER Granting 78 Consent Partial Stipulation of Dismissal of Montgomery County with Prejudice. Signed by Judge Theodore D. Chuang on

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08/04/2016 09/12/2016 09/23/2016 10/04/2016 10/05/2016 01/03/2017 01/03/2017 01/13/2017 01/27/2017 01/31/2017 02/23/2017 02/28/2017
03/01/2017 03/01/2017 03/02/2017 03/03/2017 03/03/2017 03/06/2017 04/05/2017

6/24/2016. (jf3s, Deputy Clerk) (Entered: 06/24/2016)
82 PRETRIAL SCHEDULING ORDER Setting Forth Pretrial Deadlines and a Date for a Pretrial Conference. Signed by Judge Theodore D. Chuang on 8/4/2016. (jf3s, Deputy Clerk) (Entered: 08/04/2016)
83 Consent MOTION to Postpone Trial by Mannie Garcia Responses due by 9/29/2016 (Attachments: # 1 Text of Proposed Order)(London, Ronald) (Entered: 09/12/2016)
84 ORDER granting 83 Consent Motion to Postpone Trial. Signed by Judge Theodore D. Chuang on 9/23/2016. (jf3s, Deputy Clerk) (Entered: 09/26/2016)
85 NOTICE of Appearance by Jeannette Linda Frumkin on behalf of Kevin Baxter, Christopher Malouf, Montgomery County, Maryland (Frumkin, Jeannette) (Entered: 10/04/2016)
86 NOTICE by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland re 85 Notice of Appearance Amended Line of Appearance (Frumkin, Jeannette) (Entered: 10/05/2016)
87 ORDER REFERRING CASE to Magistrate Judge William Connelly for Settlement. Signed by Judge Theodore D. Chuang on 1/3/2017 (cags, Deputy Clerk) (Entered: 01/03/2017)
88 LETTER/ORDER to counsel scheduling a Settlement Conference for Friday, January 13, 2017 at 10:00 a.m. Signed by Magistrate Judge William Connelly on 1/3/2017. (jf3s, Deputy Clerk) (Entered: 01/03/2017)
Settlement Conference held on 1/13/2017 with Magistrate Judge William Connelly. (Connelly, William) (Entered: 01/13/2017)
89 Joint Request for Hearing/Trial dates to be removed from trial calendar and to cancel pretrial conference (Attachments: # 1 Text of Proposed Order)(London, Ronald) (Entered: 01/27/2017)
90 ORDER granting 89 Request for Hearing/Trial date to be removed from trial calendar and to cancel pretrial conference. Signed by Judge Theodore D. Chuang on 1/31/2017. (jf3s, Deputy Clerk) (Entered: 01/31/2017)
91 ORDER directing parties to submit a Stipulation of Dismissal. Signed by Judge Theodore D. Chuang on 2/23/2017. (jf3s, Deputy Clerk) (Entered: 02/23/2017)
92 PAPERLESS NOTICE that, at the request of Defense Counsel, the March 1, 2017 telephone Status Conference will begin at 9:00 a.m., rather than at 9:30 a.m. as previously scheduled. The dial−in information remains the same. Counsel are expected to report to the Court how long they expect trial to last and to have made themselves available for trial in March 2017. (nrs, Chambers) (Entered: 02/28/2017)
93 Case Management Conference held on 3/1/2017 before Judge Theodore D. Chuang.(FTR−KLS−2B.) (klss, Deputy Clerk) (Entered: 03/01/2017)
94 PRETRIAL SCHEDULING ORDER. Signed by Judge Theodore D. Chuang on 3/1/2017. (jf3s, Deputy Clerk) (Entered: 03/01/2017)
95 PAPERLESS ORDER SCHEDULING a follow−up telephone conference call for 03/03/2017 at 1:00 p.m. Chambers will initiate the call. Signed by Magistrate Judge William Connelly on 3/2/2017. (Connelly, William) (Entered: 03/02/2017)
Telephone Follow−Up Settlement Conference held on 3/3/2017 with Magistrate Judge William Connelly. (Connelly, William) (Entered: 03/03/2017)
96 STIPULATION of Dismissal with Prejudice by Mannie Garcia (Attachments: # 1 Text of Proposed Order)(Corn Revere, Robert) (Entered: 03/03/2017)
97 ORDER dismissing prejudice all claims asserted by the Plaintiff that have not already been dismissed; directing the clerk to close this case. Signed by Judge Theodore D. Chuang on 3/6/2017. (jf3s, Deputy Clerk) (Entered: 03/06/2017)
98 MOTION for Attorney Fees and Costs by Mannie Garcia (Attachments: # 1 Memorandum in Support, # 2 Declaration of Robert Corn−Revere, # 3 Declaration of

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04/26/2017
04/26/2017
05/12/2017 05/12/2017
05/30/2017 08/25/2017 08/28/2017 03/22/2018 03/22/2018 04/20/2018 04/26/2018

Mickey H. Osterreicher, # 4 Declaration of Charles D. Tobin, # 5 Declaration of Jeffrey L. Light, # 6 Text of Proposed Order)(Corn Revere, Robert) (Entered: 04/05/2017)
99 Consent MOTION for Extension of Time to File Response/Reply as to 98 MOTION for Attorney Fees and Costs Consent Motion for Extension of Time to Respond to Plaintiff's Motion for Attorney's Fees and Costs by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland.(Frumkin, Jeannette) (Entered: 04/26/2017)
100 PAPERLESS ORDER granting 99 Motion for Extension of Time to File Response/Reply. The deadline for Defendant's Response in Opposition to 98 Motion for Attorney's Fees and Costs is extended to May 12, 2017. Plaintiff's Reply is due May 30, 2017, because the proposed date of May 29, 2017 is a holiday. Signed by Judge Theodore D. Chuang on 4/26/17. (nr, Chambers) (Entered: 04/26/2017)
101 RESPONSE in Opposition re 98 MOTION for Attorney Fees and Costs filed by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland.(Kane, Patricia) (Entered: 05/12/2017)
102 Supplemental to 101 Response in Opposition to Motion filed by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland (Memorandum of Grounds and Authorities in Support of Opposition to Motion for Attorney's Fees and Costs w/ Exhibits) (Attachments: # 1 Supplement, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Kane, Patricia) (Entered: 05/12/2017)
103 REPLY to Response to Motion re 98 MOTION for Attorney Fees and Costs filed by Mannie Garcia. (Attachments: # 1 Exhibit 10)(Corn Revere, Robert) (Entered: 05/30/2017)
104 MOTION to Withdraw as Attorney by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland(Frumkin, Jeannette) (Entered: 08/25/2017)
105 PAPERLESS ORDER granting 104 Motion to Withdraw as Attorney. Attorney Jeannette Linda Frumkin terminated. Signed by Judge Theodore D. Chuang on 8/28/17. (nr, Chambers) (Entered: 08/28/2017)
106 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 3/22/2018. (kns, Deputy Clerk) (Entered: 03/22/2018)
107 ORDER granting in part and denying in part 98 Motion for Attorney Fees. Signed by Judge Theodore D. Chuang on 3/22/2018. (kns, Deputy Clerk) (Entered: 03/22/2018)
108 MOTION for Other Relief for Entry of Order of Satisfaction by Kevin Baxter, Christopher Malouf, Montgomery County, Maryland (Attachments: # 1 Text of Proposed Order)(Kane, Patricia) (Entered: 04/20/2018)
109 ORDER granting 108 Consent Motion for Entry of Order of Satisfaction. Signed by Judge Theodore D. Chuang on 4/20/2018. (jf3s, Deputy Clerk) (Entered: 04/27/2018)