Michael Thomas Wilson v. BARRY A. KITTOE, No. 02-7880 Defendant-Appellant, and ANTHONY S. TOKACH

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MICHAEL THOMAS WILSON,
Plaintiff-Appellee,
v.
BARRY A. KITTOE, No. 02-7880 Defendant-Appellant,
and
ANTHONY S. TOKACH,
Defendant. 
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James C. Turk, Senior District Judge.
(CA-01-32-5)
Argued: June 3, 2003
Decided: July 22, 2003
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Michael and Judge Traxler joined.
COUNSEL
ARGUED: Alexander Francuzenko, O’CONNELL, O’CONNELL &
SARSFIELD, Rockville, Maryland, for Appellant. George Lynwood
Freeman, Jr., FREEMAN & BERTHELSEN, Fairfax, Virginia, for
Appellee.

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OPINION
KING, Circuit Judge:
This appeal arises from the April 1999 arrest of Michael Wilson
outside of his home in Stephens City, Virginia. Wilson brought suit
against the arresting officer and others, alleging, inter alia, a violation
of his Fourth Amendment right against arrest in the absence of proba-
ble cause. The officer moved for summary judgment on grounds of
qualified immunity, and the district court denied the motion. Wilson
v. Kittoe, 229 F. Supp. 2d 520, 538 (W.D. Va. 2002). The officer has
appealed and, for the reasons explained below, we affirm.
I.
At about 3:45 a.m. on April 14, 1999, Barry Kittoe, a Deputy Sher-
iff with the Frederick County Sheriff’s Department, responded to a
call from a dispatcher alerting him that a vehicle was being driven
erratically near Bel Haven Court in Stephens City, Virginia. When
Kittoe arrived at the neighborhood in question, he observed from his
police cruiser a vehicle being driven with its headlights turned off.
Kittoe followed the vehicle into the driveway of 114 Farlawn Court.
Exiting his cruiser, Kittoe approached the driver’s side of the sus-
pect’s vehicle and identified himself. The driver, later identified as
Seth Woolever, was the vehicle’s only occupant. When Woolever got
out of the vehicle, Kittoe observed that he was having difficulty main-
taining his balance and that he smelled strongly of alcohol. Woolever
also had bloodshot eyes and his speech was slurred.
Meanwhile, Michael Wilson was awakened by what sounded like
a car backfiring. After hearing the noise for the third time, Wilson got
out of bed and looked out his bedroom window. He saw two cars pull-
ing into the driveway of his next-door neighbors, the Woolevers, at
114 Farlawn Court. The second car idled in the driveway with its
headlights on. Wilson dressed and went downstairs to investigate.
It was dark outside, so Wilson turned on his outside lights and
walked out onto his driveway. From there, Wilson observed his
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neighbor’s son, Seth Woolever, standing in the Woolever driveway in
the custody of a police officer, who he later learned was Kittoe. Wil-
son believed that Woolever had already been placed in handcuffs,
because Woolever’s arms were down by his side. Wilson could tell
that the officer was talking to Woolever, but the noise from the engine
of the idling police cruiser, as well as the distance between Wilson’s
vantage point and the place where Woolever and the officer were
standing (about fifty feet away, on the far side of the cruiser), made
it difficult for Wilson to hear what was being said.
A. THE FIRST CONVERSATION
Wilson stood in his driveway for a minute or two before Kittoe
noticed him. Kittoe asked Wilson who he was, and Wilson replied
that he lived next door. Kittoe then inquired whether it was Wilson
who had called in the complaint about an erratic driver. When Wilson
said no, Kittoe told Wilson to "get out of here" as he was "interfering
with [the] investigation."
Wilson did not respond to Kittoe ("The First Refusal to Obey").
Instead, without approaching, Wilson asked Woolever if he was
"okay." Woolever replied that he "wasn’t sure." Wilson then asked
Woolever if Woolever wanted Wilson to represent him, as Wilson
was an attorney and had represented the Woolever family on prior
occasions. Woolever responded, "I’ll be looking at needing the ser-
vices of an attorney" and "I want you to represent me."
B. THE SECOND CONVERSATION
Still in his own driveway, Wilson once again addressed Kittoe, say-
ing: "Officer, if you don’t mind, when you finish doing whatever
you’re doing, I would like to speak with my client for a moment or
two and give him one of my cards and I don’t think he’ll be wanting
to answer any questions on advice of counsel." Kittoe responded that
Wilson was interfering with his investigation, and he again told Wil-
son to leave. Wilson advised Kittoe that he would retrieve some iden-
tification from inside his house ("The Second Refusal to Obey").
Wilson then walked into his house, leaving the door open behind him.
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C. THE THIRD CONVERSATION
When Wilson returned a minute or two later with his wallet and
card case, he observed that another police officer, who he later
learned was Officer Timothy Smedley, had arrived on the scene.
Smedley had parked his cruiser in the street between Wilson’s drive-
way and the Woolever driveway. Wilson proceeded down his drive-
way and approached Smedley, who was standing in the street next to
his cruiser. Wilson neither approached nor spoke to Kittoe and
Woolever, both of whom remained standing next to Kittoe’s police
cruiser in the Woolever driveway.
Wilson introduced himself to Smedley as a lawyer, and he handed
Smedley one of his business cards. Wilson asked Smedley if he could
speak to his client when the officers were finished with the arrest, but
Smedley replied that he was just on the scene to assist, and that Kittoe
was in charge. Wilson and Smedley then simply waited in the street
next to Smedley’s cruiser.
D. THE FOURTH CONVERSATION
At this point, Kittoe left Woolever in handcuffs next to Kittoe’s
cruiser and walked down the Woolever driveway to where Wilson
and Smedley stood in the street. Kittoe approached Wilson and again
informed him that he was interfering with the investigation. Kittoe
ordered Wilson to leave the area. Wilson told Kittoe that he under-
stood that Kittoe "had a job to do," but that, as an attorney, "he had
a job to do as well" ("The Third Refusal to Obey"). Wilson explained
that he just wanted to speak to his client for a moment when Kittoe
was finished doing "whatever it was" that he was doing. Then Wilson
informed Kittoe that "any information" that Kittoe elicited from
Woolever as a result of questioning "will be suppressed at trial under
the Exclusionary Rule."
E. THE ARREST AND AFTERMATH
Following this exchange, Kittoe paused momentarily and then
informed Wilson that he was under arrest. Wilson was promptly
handcuffed and placed in Smedley’s cruiser. Soon thereafter, a third
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police vehicle, driven by Lieutenant Anthony Tokach, arrived on the
scene. Tokach spoke briefly with Kittoe, and then with Smedley.
Smedley then proceeded to the cruiser and offered to remove Wil-
son’s handcuffs.
Wilson eventually was driven to the regional jail, where he was
again handcuffed before being led inside. Once in the jail, Wilson’s
shirt and shoes were removed and he sat, handcuffed, until 6:30 in the
morning. He was then issued a summons for a Class 2 misdemeanor
violation of Virginia’s obstruction of justice statute, Va. Code Ann.
§ 18.2-460(A), and was released. The Commonwealth’s Attorney
subsequently filed a nolle prosequi in the proceedings against Wilson.
II.
On April 12, 2001, Wilson filed a complaint in the Western District
of Virginia, asserting that Kittoe and Tokach violated his Fourth,
Fifth, Sixth, and Fourteenth Amendment rights when they arrested
and detained him in the early morning hours of April 14, 1999. Wil-
son seeks compensatory and punitive damages. On September 27,
2002, after discovery was complete, the defendants filed a motion for
summary judgment on the basis of qualified immunity. On October
28, 2002, the district court held an in-chambers conference to discuss
the motions. On November 7, 2002, the court denied the motion for
summary judgment as to Kittoe and granted it as to Tokach. Wilson,
229 F. Supp. 2d at 538. On December 2, 2002, Kittoe filed a timely
notice of appeal. We possess jurisdiction pursuant to 28 U.S.C.
§ 1291 and the collateral order doctrine. Mitchell v. Forsyth, 472 U.S.
511, 528-30 (1985).
III.
We review de novo the district court’s denial of qualified immu-
nity, employing our full knowledge of our own and other relevant pre-
cedents. Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001)
(citing Elder v. Holloway, 510 U.S. 510, 516 (1994)). When consider-
ing an appeal of a denial of qualified immunity, we are required to
consider the facts "in the light most favorable to the party asserting
the injury." Saucier v. Katz, 533 U.S. 194, 201 (2001). The burden of
proof and persuasion with respect to a claim of qualified immunity is
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on the defendant official. Gomez v. Toledo, 446 U.S. 635, 640-41
(1980).
A defendant is entitled to summary judgment on grounds of quali-
fied immunity when there is no genuine issue of material fact, and
when the undisputed facts establish that the defendant is entitled to
judgment as a matter of law. Pritchett v. Alford, 973 F.2d 307, 313
(4th Cir. 1992). We have emphasized the importance of resolving the
question of qualified immunity at the summary judgment stage rather
than at trial. Id. at 313; see also Saucier, 533 U.S. at 200 ("Qualified
immunity is an entitlement not to stand trial or face the other burdens
of litigation." (internal quotation marks omitted)). However, we have
also recognized that the qualified immunity question can be difficult
for a court to resolve as a matter of law, as it can at times require "fac-
tual determinations respecting disputed aspects of [a defendant’s]
conduct." Pritchett, 973 F.2d at 312. The importance of summary
judgment in qualified immunity cases "does not mean . . . that sum-
mary judgment doctrine is to be skewed from its ordinary operation
to give special substantive favor to the defense, important as may be
its early establishment." Id. at 313.
IV.
Our qualified immunity analysis proceeds in two steps. First, we
ask whether, "taken in the light most favorable to [Wilson,] the party
asserting the injury, . . . the facts alleged show [that Kittoe’s] conduct
violated a constitutional right." Saucier, 533 U.S. at 201. Second, we
ask whether the right alleged to have been violated was a "clearly
established . . . right[ ] of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see Ander-
son v. Creighton, 483 U.S. 635, 638-39 (1987) ("Qualified immunity
is not lost when an officer violates the Fourth Amendment unless a
reasonable officer would know that the specific conduct at issue was
impermissible."). Only if we resolve both inquiries in the affirmative
should we uphold a denial of qualified immunity.
A.
Our first task is to assess whether the facts alleged, taken in the
light most favorable to Wilson, indicate that Officer Kittoe had proba-
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ble cause for Wilson’s arrest. If probable cause was lacking, then Wil-
son has successfully asserted the violation of a constitutional right —
specifically his Fourth Amendment right against unreasonable seizure
— and we may move on to the second prong of our qualified immu-
nity analysis.1
The Fourth Amendment protects "[t]he right of the people to be
secure in their persons . . . against unreasonable searches and sei-
zures." U.S. Const. amend. IV. "An arrest is a seizure of the person,"
Rogers, 249 F.3d at 290, and, subject to limited exceptions not rele-
vant here, "Fourth Amendment seizures are ‘reasonable’ only if based
on probable cause," Dunaway v. New York, 442 U.S. 200, 213 (1979).
An officer has probable cause for arrest when the "facts and circum-
stances within the officer’s knowledge . . . are sufficient to warrant
a prudent person, or one of reasonable caution, in believing, in the cir-
cumstances shown, that the suspect has committed, is committing, or
is about to commit an offense." Pritchett, 973 F.2d at 314. In deter-
mining whether probable cause exists in a given case, it is important
to limit our consideration to only those "facts and circumstances
known [to the officer] at the time of the arrest." Smith v. Tolley, 960
F. Supp. 977, 994 (E.D. Va. 1997); see also Gooden v. Howard
County, 954 F.2d 960, 965 (4th Cir. 1993) ("In cases where officers
are hurriedly called to the scene of a disturbance, the reasonableness
of their response must be gauged against the reasonableness of their
1In his complaint, Wilson alleged that he was arrested and imprisoned
in violation not only of his Fourth Amendment rights, but of his rights
under the Fifth, Sixth, and Fourteenth Amendments as well. However, in
denying Kittoe the protection of qualified immunity, the district court
focused solely on Wilson’s claim that he was arrested in the absence of
probable cause, in violation of the Fourth Amendment. Wilson, 229 F.
Supp. 2d at 526. Because Kittoe has chosen to assert on appeal only that
the court erred in its substantive analysis of the Fourth Amendment, and
because Kittoe makes no argument for the proposition that the court
should have awarded him summary judgment with respect to Wilson’s
other constitutional claims, we too limit our review to the Fourth Amend-
ment issue. Cf. Gomez, 446 U.S. at 640-41 (holding that defendant offi-
cial bears burden of proof and persuasion with respect to claim of
qualified immunity). Accordingly, we express no opinion as to the pro-
priety of the court’s failure to parse the complaint and entertain the possi-
bility of qualified immunity with respect to Wilson’s other claims.
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perceptions, not against what may later be found to have actually
taken place.").
Kittoe asserts that he had probable cause to arrest Wilson for
obstruction of justice under Virginia Code § 18.2-460(A) (the "Ob-
struction Statute" or the "Statute"). At the time of the events in ques-
tion, the Obstruction Statute provided:
If any person without just cause knowingly obstructs . . . any
law-enforcement officer in the performance of his duties as
such or fails or refuses without just cause to cease such
obstruction when requested to do so by such . . . law-
enforcement officer, he shall be guilty of a Class 2 misde-
meanor.
Va. Code § 18.2-460(A).2 We note at the outset that the Statute con-
tains two distinct prohibitions: under its terms, a person may neither
(1) "without just cause knowingly obstruct[ ] . . . any law-
enforcement officer in the performance of his duties as such" (the
"Obstruction Clause"), nor (2) "fail[ ] or refuse[ ] without just cause
to cease such obstruction when requested to do so by such . . . law-
enforcement officer" (the "Refusal to Cease Clause"). Because the
Refusal to Cease Clause presupposes the occurrence of an obstruc-
tion, Kittoe had probable cause to arrest under the Refusal to Cease
Clause only if he already had probable cause to arrest pursuant to the
Obstruction Clause. Thus, it is the Obstruction Clause that is the pri-
mary focus of our analysis: for Kittoe to have had probable cause for
Wilson’s arrest, the facts and circumstances must have warranted a
reasonable belief that Wilson was, or was on the verge of, unlawfully
obstructing Kittoe in the performance of his duties. Pritchett, 973
F.2d at 314.
Kittoe points to two forms of obstruction, each of which, he asserts,
generated probable cause for Wilson’s arrest: (1) Wilson’s verbal crit-
icism of Kittoe and his offer of legal services to Woolever during
Woolever’s arrest (the four "Conversations"); and (2) Wilson’s
refusal to leave the area and thereby cease the obstruction (the three
2The Statute was amended in 2002 to change "Class 2 misdemeanor"
to "Class 1 misdemeanor."
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"Refusals to Obey"). Like the district court, we shall address, in turn,
first the four Conversations, and then the three Refusals to Obey.
1. The Four Conversations
At four distinct instances, Wilson engaged Kittoe in conversation
in a manner that, Kittoe alleges, violated the Obstruction Statute. On
its face, the Statute does appear to reach mere speech, as its terms
broadly prohibit any "obstruction" of an officer. Va. Code § 18.2-
460(A); see also Smith, 960 F. Supp. at 995 (holding Obstruction
Statute does not require that there be actual physical assault on officer
as predicate for liability). The Virginia courts, however, have sub-
jected the Statute to a limiting construction, under which a person
must do more than merely render an arrest more difficult or inconve-
nient than it might otherwise have been — by, for example, speaking
to an officer as he works — in order to be criminally liable.3 Ruckman
v. Commonwealth, 505 S.E.2d 388, 389 (Va. Ct. App. 1998) ("As the
Supreme Court [of Virginia] has held, and as the plain language of the
statute states, obstruction of justice does not occur when a person fails
to cooperate fully with an officer or when the person’s conduct
merely renders the officer’s task more difficult but does not impede
or prevent the officer from performing that task."). And, of course, we
defer to the interpretation of the Obstruction Statute that the Virginia
courts have rendered. See Bush v. Palm Beach County Canvassing
Bd., 531 U.S. 70, 76 (2000) (per curiam) ("As a general rule, this
Court defers to a state court’s interpretation of a state statute.").
3Peaceful verbal criticism of an officer who is making an arrest cannot
be targeted under a general obstruction of justice statute such as Virgin-
ia’s without running afoul of the First Amendment: "The Constitution
does not allow such speech to be made a crime. The freedom of individu-
als verbally to oppose or challenge police action without thereby risking
arrest is one of the principle characteristics by which we distinguish a
free nation from a police state." City of Houston v. Hill, 482 U.S. 451,
462-63 (1987) (striking down municipal ordinance that made it illegal to
"in any manner oppose, molest, abuse, or interrupt any policeman in the
execution of his duty" as unconstitutionally overbroad under the First
Amendment). However, because Virginia has interpreted its Obstruction
Statute such that the Statute does not reach peaceful verbal criticism, we
need not address whether, absent this interpretation, the Statute might be
constitutionally infirm.
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The stringent definition of obstruction that appears in Ruckman is
nothing new to Virginia’s jurisprudence: as early as 1925, the
Supreme Court of Virginia held that "[t]o constitute an obstruction . . .
there must be acts clearly indicating an intention on the part of the
accused to prevent the officer from performing his duty . . . . [There
must be an intent] to obstruct the officer himself not merely to oppose
or impede the process with which the officer is armed." Jones v. Com-
monwealth, 126 S.E. 74, 77 (1925) (emphasis added) (interpreting
"obstruction" as used in similar Virginia obstruction statute); cf. Mart-
tila v. City of Lynchburg, 535 S.E.2d 693, 698-99 (Va. App. 2000)
(holding that to refer to officers as "f***ing pigs" and "f***ing jokes"
during arrest does not constitute breach of peace (alteration added)).
We have acknowledged the distinction that the Virginia courts have
long drawn between conduct that merely impedes or frustrates the
officer, which does not ground liability under the Obstruction Statute,
and conduct that intentionally thwarts or prevents an arrest, which
does. See Rogers, 249 F.3d at 291 (reviewing cases).
Construing the facts, as we must, in the light most favorable to
Wilson, the "facts and circumstances within [Kittoe’s] knowledge"
were not "sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that [Wilson] ha[d]
committed, [was] committing, or [was] about to" violate the Obstruc-
tion Statute when Wilson four times engaged Kittoe in conversation.
Pritchett, 973 F.2d at 314. Wilson (1) inquired into the well-being of
his neighbor’s son and offered his legal services; inquired (2) of Kit-
toe and (3) of Smedley whether he could talk with Woolever for a few
moments once they were finished with the arrest; and (4) peacefully
attempted to remind Kittoe of Woolever’s constitutional rights. None
of those four Conversations could justify Kittoe in the belief that Wil-
son was attempting to prevent him from carrying out the arrest, as the
Obstruction Statute requires. In fact, Wilson expressly stated that he
was content to wait to speak with Woolever until after the arrest was
complete. Under these circumstances, Kittoe lacked probable cause to
believe that Wilson was in violation of Virginia Code § 18.2-460(A).
2. The Three Refusals to Obey
Kittoe next contends that he had probable cause to arrest Wilson
under the Obstruction Statute because Wilson three times refused to
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obey a direct order to leave the scene. The first time he gave the
order, Wilson was standing in his driveway approximately fifty feet
away. The second time, Wilson had just inquired into Woolever’s
well-being and had asked Kittoe if, after the officer had completed his
work, Wilson might speak with Woolever. And the third time, Wilson
was standing out by the street speaking with Smedley.
As noted above, the Refusal to Obey Clause of the Obstruction
Statute is tied to the Obstruction Clause: an individual can be held lia-
ble for "refus[ing] without just cause to cease such obstruction when
requested to do so" only if he has already been engaging in "such
obstruction." Va. Code. § 18.2-460(A). And he has been engaging in
"such obstruction" only if he has, as the Obstruction Clause provides,
"without just cause knowingly obstruct[ed] . . . any law-enforcement
officer in the performance of his duties." Id. Thus, it is not just any
refusal to obey an officer’s orders that can render an individual liable
under the Obstruction Statute. There can be probable cause to believe
that a person is violating the Statute by refusing to obey an order only
if (1) there is probable cause to believe the individual had been
obstructing, and (2) the order that the individual refused to obey was
an order to cease that obstruction.
Kittoe’s orders to Wilson were orders that Wilson leave the scene.
When Kittoe made those orders, though, Kittoe did not have probable
cause to believe that Wilson was engaging in obstruction. The orders
came during the First, Second, and Fourth Conversations. But, as dis-
cussed above, Kittoe did not have probable cause to believe that Wil-
son was engaging in obstruction when he conversed with the officers.
Because there was no probable cause to believe that Wilson was
engaging in obstruction simply by being there and conversing with
the officers, there could be no probable cause to believe that Wilson
violated the Obstruction Statute when he refused to obey Kittoe’s
order that he cease and leave. 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, jus-
tify an arrest under the Obstruction Statute.
Kittoe asserts that our recent decision in Figg v. Schroeder, 312
F.3d 625 (4th Cir. 2002), establishes that Kittoe had probable cause
to arrest Wilson as soon as Wilson failed to obey an order at a crime
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scene. Appellant’s Br. at 28. We disagree. In Figg, a deputy sheriff
had shot and killed Thomas Figg, after stopping Figg in the middle
of the night on suspicion of drunken driving at the entrance to the
Figg family farm. Figg, 312 F.3d at 631. The deputy called for
backup support, and the officers who responded knew only that shots
had been fired; they were unaware that the deputy had been the only
shooter. Id. Immediately upon their arrival at the Figgs’ farm, the offi-
cers were confronted in quick succession by four individuals, each of
whom they detained. Id. at 632. The second of these arrivals was
Martha Figg Williams, who drove to the scene from the Figg home,
about a quarter of a mile up the driveway. When Williams subse-
quently challenged her detention under the Fourth Amendment, we
concluded that the police would have had probable cause to arrest her
under the Obstruction Statute for refusing to obey an officer’s order.4
Whereas Williams’s belligerent actions combined with seemingly
hazardous circumstances to give the officers in Figg probable cause
to believe that Williams intended to obstruct their work, the same can-
not be said with respect to the circumstances here. In Figg, Williams
arrived on the scene violently agitated and verbally abusive. See id.;
cf. City of Houston v. Hill, 482 U.S. 451, 463 (noting that "[t]he free-
dom verbally to challenge police action is not without limits"). She
physically encroached upon a nascent police investigation into a
minutes-old shooting, all the while "yelling and cursing." See Figg,
312 F.3d at 632. It was undisputed that the scene appeared highly vol-
atile, with uncertain numbers of justifiably angry, potentially hostile,
and likely armed individuals in the immediate vicinity. See id. at 631-
32 ("When [the] officers began to arrive on the scene, [the deputy]
told them only that shots had been fired; they did not know that [the
deputy] was the only shooter."); id. at 631 n.2 ("[The farm on which
the shooting occurred] was known to members of the Sheriff’s
Department as the home of the Figg family, and the family had a rep-
4As we recounted in Figg, even construing all disputed facts in favor
of the plaintiff, it appeared that "[w]hen Ms. Williams arrived on the
scene, a deputy ordered her to stay in her car, but she disobeyed, and she
got out of her car yelling and cursing. Ms. Williams was ordered to
return to her car, but she refused. Sergeant Anthony then placed her face-
front against the car and attempted to handcuff her. Ms. Williams strug-
gled, but she was handcuffed." 312 F.3d at 632.
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utation for domestic violence, hard drinking, fighting, and possession
of firearms (including pistols, rifles, shotguns, and semiautomatic
weapons). . . . Because of the Figgs’ violent reputation, the [local
police] had an unwritten policy of calling for backup support before
responding to a call from the Figgs."). While the benefit of hindsight
might have allowed us to paint a different picture, we focused our
probable cause analysis on the scene as it appeared to the officers
when they chose to detain Williams, see id. at 636 (emphasizing that
proper focus of probable cause inquiry is upon those facts known to
arresting officer at time of arrest) (citing Beck v. Ohio, 379 U.S. 89,
91 (1964)), and held that "she could lawfully be placed under arrest"
for violation of the Obstruction Statute, id. at 637.
Here, by contrast, Wilson was at all times composed, polite, and
circumspect; he remained at a distance, on his own driveway or out
in the street with Smedley, and never attempted to approach either
Kittoe or Woolever; and, far from attempting "to prevent [Kittoe]
from performing his duty," Jones, 126 S.E. at 77, Wilson made it
clear to Kittoe that he would remain at a distance until Kittoe had fin-
ished his work and had given him permission to confer with
Woolever. Furthermore, and importantly, there is no evidence that the
scene appeared to Kittoe to be anything other than highly secure:
There was a single calm, handcuffed suspect, and a backup officer
was present. The officers had no apparent reason to believe or even
suspect that, aside from Woolever and Wilson, there was anyone else
around; much less did they have reason to expect that unseen persons
lurking nearby would be angry, drunk, and/or armed. In fact, Kittoe
even felt sufficiently comfortable with the circumstances to leave
Woolever by his police cruiser when he walked down to speak with
Wilson and Smedley. In short, while Williams’s actions in Figg, con-
sidered in the highly volatile context in which they occurred, were
sufficient to give the responding officers probable cause to arrest her
for obstruction, neither comparable conduct nor comparable circum-
stances exist in this case. Lacking probable cause to believe that Wil-
son was engaging in obstruction by being present and engaging Kittoe
in the four Conversations, Kittoe also lacked probable cause to
believe that Wilson violated the Statute when he refused to obey Kit-
toe’s order that he leave.
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3. Conclusion
Because the facts, taken in the light most favorable to Wilson,
show that Kittoe lacked probable cause to believe that Wilson was in
violation of the Obstruction Statute when Wilson engaged Kittoe in
conversation and refused to obey Kittoe’s orders to cease and depart,
Wilson has alleged a violation of his Fourth Amendment right against
arrest in the absence of probable cause.
B.
Under the second prong of our qualified immunity analysis, we
must determine whether the right alleged to have been violated was
a "clearly established . . . right[ ] of which a reasonable person would
have known." Harlow, 457 U.S. at 818. A right is "clearly estab-
lished" if a reasonable officer would have understood, under the cir-
cumstances at hand, that his behavior violated the right. Wilson v.
Layne, 526 U.S. 603, 615 (1999). The inquiry is an objective one,
dependent not on the subjective beliefs of the particular officer at the
scene, but instead on what a hypothetical, reasonable officer would
have thought in those circumstances. Milstead v. Kibler, 243 F.3d
157, 161 (4th Cir.), cert. denied, 122 S. Ct. 199 (2001). "In determin-
ing whether a right was clearly established at the time of the claimed
violation, ‘courts in this circuit [ordinarily] 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 of Golds-
boro, 178 F.3d 231, 251 (4th Cir. 1999) (quoting Jean v. Collins, 155
F.3d 701, 709 (4th Cir. 1998) (en banc)) (alteration in original). How-
ever, "the nonexistence of a case holding the defendant’s identical
conduct to be unlawful does not prevent denial of qualified immu-
nity." Id. After all, "qualified immunity was never intended to relieve
government officials from the responsibility of applying familiar legal
principles to new situations." Trulock v. Freeh, 275 F.3d 391, 405
(4th Cir. 2001) (Michael, J., concurring); see also Wilson, 526 U.S.
at 615 (1999) (holding that right can be deemed clearly established
even if there is no prior decision addressing precise conduct at issue,
so long as its illegality would have been evident to reasonable officer
on basis of existing caselaw). Nonetheless, when the legality of a par-
ticular course of action is open to reasonable dispute, an officer is not
liable: under the doctrine of qualified immunity, "officials are not lia-
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ble for bad guesses in gray areas; they are liable for transgressing
bright lines." Maciarello v. Sumner, 973 F.2d 295, 298 (4th Cir.),
cert. denied, 113 S. Ct. 1048 (1992).
In deciding whether the right alleged to have been violated was
clearly established, the right must be defined "at a high level of partic-
ularity." Edwards, 178 F.3d at 250-51. Defining the right at issue with
the requisite level of particularity, we agree with the district court that
the appropriate question is whether, at the time of Kittoe’s actions on
April 14, 1999, it was clearly established that a police officer may not
arrest a third party for criticizing the officer’s conduct and refusing
to leave the scene of an arrest.
We conclude that that right was clearly established at the time of
Wilson’s arrest: a reasonable Virginia police officer in Kittoe’s posi-
tion would have understood that, as "obstruction" has long been cir-
cumscribed in Virginia law, the four Conversations and the three
Refusals to Obey could not generate probable cause for arrest under
the Obstruction Statute. Conduct such as Wilson’s would not "warrant
a prudent person, or one of reasonable caution, in believing, in the cir-
cumstances shown, that the suspect has committed, is committing, or
is about to commit [a violation of the Statute]." Pritchett, 973 F.2d
at 314.
Prior to Kittoe’s encounter with Wilson, Virginia courts had con-
sistently interpreted the Commonwealth’s Obstruction Statute to place
beyond the Statute’s reach conduct that was merely harassing or irri-
tating to an arresting officer. See, e.g., Ruckman, 505 S.E.2d at 389
(citing Jones in holding that individual must actually "impede or pre-
vent the officer from performing [his] task," and not "merely render[ ]
the officer’s task more difficult," in order to be criminally liable under
Obstruction Statute); see also Jones, 126 S.E. at 77 (interpreting "ob-
struction" in earlier statute to require that defendant not merely "im-
pose or impede" an officer, but rather that he actually intend "to
prevent the officer from performing his duty"); see generally Rogers,
249 F.3d at 291 (reviewing Virginia’s longstanding interpretation of
"obstruction" in its criminal obstruction of justice statutes). Relevant
precedent had also previously rendered unmistakable the constitu-
tional fallibility of obstruction statutes that were given broader inter-
pretations. See, e.g., Hill, 482 U.S. at 462-63 (striking down
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municipal ordinance that made illegal to "in any manner oppose,
molest, abuse, or interrupt any policeman in the execution of his duty"
as unconstitutionally overbroad under the First Amendment); Brooks
v. NC Dep’t of Corrs., 984 F. Supp. 940, 961 (E.D.N.C. 1997) (vacat-
ing conviction under North Carolina’s virtually identical obstruction
statute — under circumstances virtually identical to those here — as
violative of First and Fourteenth Amendments). Together, these deci-
sions provided Virginia officers, like Kittoe, fair notice that the incon-
venient presence and conversation of a spectator such as Wilson does
not provide probable cause for arrest pursuant to the Obstruction Stat-
ute.
V.
For the foregoing reasons, Wilson has alleged the violation of a
clearly established Fourth Amendment right. Accordingly, the district
court’s denial of qualified immunity is affirmed.
AFFIRMED
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