Submitted: December 12, 2018
from United States District Court for the Western District of
Arkansas - Ft. Smith
SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
State Trooper Lagarian Cross appeals the district
court's denial of qualified immunity on summary
judgment against Eric Roshaun Thurairajah's claims of
First Amendment retaliation and Fourth Amendment unreasonable
seizure. This § 1983 lawsuit suit stems from Trooper
Cross's arrest of Thurairajah for disorderly conduct
after Thurairajah yelled a two-word expletive at him from a
moving vehicle. Trooper Cross believed the shout constituted
unreasonable or excessive noise in violation of state law.
The district court determined that Trooper Cross's action
violated Thurairajah's clearly established constitutional
rights. We agree with that analysis and affirm the denial of
2015, Trooper Cross was performing a routine traffic stop on
a van pulled to the shoulder of a busy five-lane highway in
Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard
Thurairajah, who was driving by, yell "f**k you!"
out of his car window. The van's occupants were a mother
and her two young children. Thurairajah was driving at about
35 miles-per-hour on the far lane of the road moving in the
opposite direction. Trooper Cross observed the two children
in the van react to the yell. Trooper Cross ended the traffic
stop of the van and pursued Thurairajah, stopped him, and
arrested him, citing Arkansas's disorderly conduct law.
Trooper Cross believed the shout constituted
"unreasonable or excessive noise" under the law.
Ark. Code Ann. § 5-71-207(a)(2).
spent several hours in jail but then was released and all
charges against him were dropped. He filed a § 1983
lawsuit against Trooper Cross alleging the trooper violated
his First Amendment right to be free from retaliation and his
Fourth Amendment right to be free from unreasonable seizure.
Trooper Cross moved for summary judgment on the basis of
qualified immunity. The district court denied qualified
immunity on both claims after concluding Trooper Cross's
arrest violated Thurairajah's clearly established
appeal, Trooper Cross asks us to reverse the district
court's denial of qualified immunity. Qualified immunity
will shield a state actor, like Trooper Cross, from legal
liability unless: (1) he violated a constitutional right, and
(2) that constitutional right was clearly established so that
a reasonable officer would know of the right at the time of
the alleged violation. See Pearson v. Callahan, 555
U.S. 223, 232 (2009).
review the denial of qualified immunity de novo, viewing the
record in the light most favorable to Thurairajah and drawing
all inferences in his favor. Ehlers v. City of Rapid
City, 846 F.3d 1002, 1008 (8th Cir. 2017). If we find
that either prong is not satisfied-that Thurairajah's
constitutional rights were not violated or that any violated
right was not so clearly established that Trooper Cross, as a
reasonable officer, would have known that his actions were
unlawful-then qualified immunity will apply. See Perry v.
Woodruff Cty. Sheriff Dept. by and through Barker, 858
F.3d 1141, 1144-45 (8th Cir. 2017).
Cross contends that he is entitled to qualified immunity on
Thurairajah's Fourth Amendment claim for unreasonable
seizure because (1) he had probable cause, or at least
arguable probable cause, to arrest Thurairajah for violating
Arkansas's disorderly conduct statute, Ark. Code Ann.
§ 5-71-207(a)(2); or (2) the relevant law pertaining to
the disorderly conduct statute is not sufficiently clear to
provide notice that an arrest would violate the Fourth
warrantless arrest is consistent with the Fourth Amendment if
it is supported by probable cause, and an officer is entitled
to qualified immunity if there is at least 'arguable
probable cause.'" Borgman v. Kedley, 646
F.3d 518, 522-23 (8th Cir. 2011) (quoting Walker v. City
of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)). An
officer possesses probable cause to effectuate a warrantless
arrest "when the totality of the circumstances at the
time of the arrest 'are sufficient to lead a reasonable
person to believe that the defendant has committed or is
committing an offense.'" Id. at 523
(quoting Fisher v. Wal-Mart Stores, Inc. et al., 619
F.3d 811, 816 (8th Cir. 2010)). Arguable probable cause
exists if Thurairajah's arrest "was based on an
objectively reasonable-even if mistaken-belief that the
arrest was based in probable cause." Ulrich
v. Pope Cty., 715 F.3d 1054, 1059 (8th Cir. 2013).
Arguable probable cause provides law enforcement officers in
a qualified immunity analysis "an even wider berth for
mistaken judgments" than the probable cause standard
affords a reasonable person. Id. Analyzing whether
arguable probable cause exists "necessarily includes
consideration of probable cause." Id. In other
words, Trooper Cross is protected by qualified immunity if a