Fourth Circuit Clarifies: Refusal to Obey Content‑Neutral Volume and Ejection Orders at Public Meetings Supplies Probable Cause and Supports Qualified Immunity

Introduction

In Brooke N. Somers v. Anthony Devine et al., No. 24-1511 (4th Cir. Mar. 24, 2025), the Fourth Circuit affirmed summary judgment on qualified‑immunity grounds for an Elkton, Maryland police officer who arrested a school board meeting attendee after she resisted content‑neutral directives to quiet down and then to leave a school facility. The case arises against the backdrop of pandemic-era masking rules, protests at local school board meetings, and the recurring tension between robust public participation and the government’s ability to maintain order during official proceedings.

The appeal concerned four federal claims under 42 U.S.C. § 1983 against Officer Anthony Devine: retaliatory arrest (First Amendment), unlawful arrest (Fourth Amendment), excessive force (Fourth/Fourteenth Amendments), and malicious prosecution (Fourth Amendment). The Fourth Circuit held that an objectively reasonable officer could believe probable cause existed once Somers refused a lawful, content‑neutral volume directive and then a repeated order to leave, thereby foreclosing her retaliatory arrest, unlawful arrest, and malicious prosecution theories. The court further held that the force used to overcome Somers’ resistance—both in the lobby and later at the courthouse—was objectively reasonable, entitling the officer to qualified immunity on excessive‑force grounds as well.

Factual and Procedural Background

On February 9, 2022, Somers attempted to attend a Cecil County Board of Education meeting without a mask. Maryland emergency regulations then required masking inside school facilities, with enumerated medical exemptions. Somers presented an eight‑month‑old letter from a nurse practitioner documenting her self‑reported symptoms, which the officer deemed insufficient. She was permitted to watch the meeting via livestream from the building’s lobby with other unmasked individuals.

Roughly 35 minutes later, noise from the lobby drew attention inside the meeting room. Officer Devine stepped into the lobby and directed those present—including Somers—to keep their voices down. Somers responded “No.” Interpreting that as a refusal to comply with a lawful order designed to quell disruption, the officer instructed her to leave. After several more refusals—and after Somers stated “Do it” when bystanders asked whether the officer would actually arrest—Devine arrested her. Somers remained seated and declined to stand; the officer lifted her, she ended up on the floor, resisted rolling over for cuffing, and the officer applied pressure to her back for about a minute to secure handcuffs. Later at the courthouse, where masks were required, Somers again resisted masking, told the officer to “forcibly put it on” her, pulled away as he adjusted it, and then dropped to a seated position on the floor before ultimately complying after the commissioner offered a telephone-hearing alternative.

Somers was charged with six offenses. A Maryland district court convicted her of disturbing the peace and failure to obey a lawful order; on de novo appeal to the circuit court she was acquitted. She then filed a federal § 1983 action against the officer and several entities and officials. The district court dismissed municipal and other claims not at issue on appeal, and granted summary judgment to Officer Devine on qualified‑immunity grounds across all federal claims. Somers appealed only the retaliatory arrest, unlawful arrest, excessive force, and malicious prosecution counts.

Summary of the Opinion

The Fourth Circuit (Wilkinson, J.) affirmed. The court held:

Probable Cause and First/Fourth Amendment claims: An objectively reasonable officer could find probable cause when a meeting attendee refuses a content‑neutral order to lower her volume and then repeatedly refuses a follow‑on order to leave. Because probable cause defeats claims for retaliatory arrest (subject to the narrow Nieves exception not implicated here), unlawful arrest, and malicious prosecution, the officer was entitled to qualified immunity on Counts III, IV, and VI.
Excessive Force: Considering the Graham v. Connor factors and the totality of circumstances at “the moment that the force is employed,” the officer’s force—lifting a seated arrestee who refused to stand, rolling her over to cuff her after she refused to do so, briefly applying pressure to secure handcuffs, and later stabilizing her while masking at the courthouse—was minimal, proportional to Somers’ resistance, and objectively reasonable. Qualified immunity therefore applied to Count V.

Emphasizing that qualified immunity depends on whether the alleged right was clearly established at a high level of particularity, the court declined to constitutionalize the facts and instead resolved the appeal on the ground that a reasonable officer could believe probable cause existed and that the force used was reasonable.

Detailed Analysis

A. Qualified Immunity Framework and the “Clearly Established” Inquiry

The court reiterated familiar qualified‑immunity principles: public officials are shielded from suit unless they violate a right that was clearly established at the time. The analysis may proceed in either order—examining whether a constitutional violation occurred or whether the right was clearly established—and courts may resolve cases on the latter ground to avoid unnecessary constitutional rulings. See Harlow v. Fitzgerald; Pearson v. Callahan; Ashcroft v. al‑Kidd; Atkinson v. Godfrey.

Importantly, the “clearly established” prong requires specificity. It is not enough to invoke broad First Amendment protection; the question is whether, at a high level of particularity, every reasonable officer would understand that arresting a person who refuses a content‑neutral volume directive and then disobeys an order to leave violates the Constitution. See Anderson v. Creighton; Edwards v. City of Goldsboro. The court underscored that this case did not demand exact factual match to prior precedent but also could not rest on generalities.

B. Probable Cause as the Common Thread: Retaliatory Arrest, Unlawful Arrest, and Malicious Prosecution

The panel treated Counts III (retaliatory arrest), IV (unlawful arrest), and VI (malicious prosecution) together because all turn on the presence or absence of probable cause. If a reasonable officer could conclude probable cause existed, these claims fail:

Retaliatory arrest: Under Nieves v. Bartlett, probable cause generally defeats a First Amendment retaliatory arrest claim, with a narrow exception where officers typically do not arrest similarly situated individuals (e.g., jaywalking) but did so here in retaliation. No such showing was made.
Unlawful arrest: A lawful arrest requires probable cause. See Manuel v. City of Joliet.
Malicious prosecution: Among other elements, a plaintiff must show a seizure pursuant to legal process and lack of probable cause. See Harris v. Town of Southern Pines (4th Cir. 2024).

The court concluded that a reasonable officer could find probable cause because:

The directive to “keep the volume down” was a valid, content‑neutral time, place, and manner restriction aimed at preventing disruption of an ongoing government meeting, not at suppressing any viewpoint. See Ward v. Rock Against Racism; McCullen v. Coakley; Hulbert v. Pope.
After Somers said “No,” the officer gave a repeated, clear order to leave. Her continued refusals and confrontational posture provided grounds to believe she was violating laws prohibiting failure to obey lawful orders and/or disturbing public proceedings—thus supporting probable cause to arrest.

Addressing Somers’ argument that “No” was misinterpreted, the court found the officer’s interpretation not merely reasonable but “the most reasonable one,” particularly given the subsequent, explicit refusals to depart. The panel invoked Gooden v. Howard County to explain that inevitable factual confusion does not itself create a triable issue where the record (including body‑camera video) renders the officer’s understanding objectively reasonable. The court also quoted Maciariello v. Sumner to emphasize officers are not liable for reasonable judgments in “gray areas.”

C. Time, Place, and Manner Restrictions Applied in the School‑Board Setting

Central to the probable‑cause analysis was the conclusion that the officer’s initial volume directive was a permissible time, place, and manner limit:

Content neutrality: The order addressed volume—i.e., the manner of expression—not the viewpoint or subject matter. See Ward.
Significant governmental interest: Government has a substantial interest in preventing unwelcome noise that disrupts official proceedings, especially where public discourse is expected to occur in an orderly fashion. See Ward; City Council of Los Angeles v. Taxpayers for Vincent.
Narrow tailoring and alternatives: The limitation was minimal (lower your voice), left open ample channels of communication (continue speaking at a lower volume, or watch on a lobby livestream), and was enforced only after the group’s noise drew attention inside the meeting room.

The opinion thus situates school‑board proceedings within the established First Amendment framework: robust debate is protected, but reasonable, content‑neutral management of noise and order is permissible. See also Heffron v. International Society for Krishna Consciousness.

D. Excessive Force: Objective Reasonableness in Context

The court next addressed the excessive‑force claim under the Fourth and Fourteenth Amendments, applying the shared objective‑reasonableness standard of Graham v. Connor, Kingsley v. Hendrickson, and Lombardo v. City of St. Louis. The analysis centered on:

Severity of the crimes: The underlying offenses were not severe, but even in minor‑offense arrests, officers may use the amount of force necessary to overcome active resistance. See Pegg v. Herrnberger.
Immediate threat: The record did not suggest Somers posed a direct safety threat; however, the focus shifts to the nature of resistance.
Active resistance/flight: Somers repeatedly refused to stand, to roll over for cuffing, and later to comply with courthouse masking rules, physically pulling away. The officer responded by lifting her from a chair, rolling her to cuff her, applying brief back pressure (under one minute) to secure handcuffs, and stabilizing her during masking after she invited him to “forcibly” mask her.
Extent of injury/tempering force: Somers admitted later that she had not been injured; the force was brief, measured, and ceased once compliance was achieved.

In light of the totality of circumstances at the moments force was used, the panel found no constitutional violation and, in any event, held that any ambiguity falls within the “hazy border between excessive and acceptable force” that qualified immunity is designed to cover. See Saucier v. Katz; Mullenix v. Luna; Rivas‑Villegas v. Cortesluna.

E. Precedents Cited and Their Roles

Qualified‑immunity architecture and summary judgment: Mitchell v. Forsyth (immunity from suit), Harlow v. Fitzgerald (shield from undue interference), Anderson v. Creighton (particularity), Pearson v. Callahan (sequencing discretion), Ashcroft v. al‑Kidd (clearly established standard), Atkinson v. Godfrey (resolve on clearly established prong), Gooden v. Howard County (video/factual confusion and reasonableness).
Probable cause as dispositive: Nieves v. Bartlett (probable cause generally defeats retaliatory arrest save a narrow comparator exception), Manuel v. City of Joliet (probable cause required for lawful arrest), Harris v. Town of Southern Pines (lack of probable cause element for malicious prosecution).
Time, place, and manner doctrine: Ward v. Rock Against Racism (content‑neutral sound regulation), McCullen v. Coakley (narrow tailoring/alternatives), Hulbert v. Pope (Fourth Circuit application), City Council v. Taxpayers for Vincent (significant governmental interests).
Excessive force: Graham v. Connor (objective reasonableness factors), Tennessee v. Garner (totality at the moment), Kingsley v. Hendrickson and Lombardo v. City of St. Louis (objective reasonableness across Fourth/Fourteenth contexts), Mullenix and Rivas‑Villegas (qualified immunity in hazy legal backdrops), Pegg v. Herrnberger (force permissible to overcome resistance).
Additional guideposts: Edwards v. City of Goldsboro (particularity), Maciariello v. Sumner (not liable for reasonable judgments in gray areas), Heffron v. ISKCON (no right to speak at any time/place/manner), Sweezy v. New Hampshire (importance of educational governance).

F. The Court’s Legal Reasoning, Step by Step

Standard of Review: De novo review of summary judgment on qualified immunity, viewing facts favorably to Somers but giving proper weight to undisputed video evidence and the practical imperatives of qualified immunity as immunity from suit.
Focused “Clearly Established” Inquiry: The court defines the right at issue with specificity—whether it was clearly established that arresting a person who refuses a content‑neutral volume restriction and an order to leave violates the First or Fourth Amendments. It declines to frame the right at a high level of generality.
Time, Place, and Manner: The initial volume directive is lawful under Ward/McCullen/Hulbert. Because the order was content‑neutral, narrowly tailored to prevent disruption, and left ample alternatives, refusing it was not constitutionally protected.
Probable Cause from Refusals: The repeated refusal to leave after a lawful order supplied probable cause for offenses such as failure to obey and disturbing public peace. On these facts, a reasonable officer could believe arrest was lawful—defeating claims that depend on absence of probable cause (retaliatory arrest, unlawful arrest, malicious prosecution).
Excessive Force: Applying Graham/Kingsley/Lombardo to the arrest and courthouse incidents, the court finds minimal, proportionate force tailored to overcome resistance, short duration, and lack of injury. Even if a closer question, qualified immunity would protect the officer given the “hazy border.”
Limited Holding, Practical Context: The court emphasizes it does not draw a bright line for when protest becomes disruption, but it underscores that reasonable, content‑neutral efforts by officers to maintain order at public meetings are compatible with the First Amendment and protected by qualified immunity when reasonably executed.

G. Impact and Forward‑Looking Implications

This decision carries several practical and doctrinal implications within the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, South Carolina):

Public‑meeting management: Officers and meeting administrators have reaffirmed authority to issue content‑neutral directives (e.g., volume control) to prevent disruption. Refusal to comply may create probable cause to arrest or to order removal from premises.
Retaliatory arrest claims post‑Nieves: Plaintiffs will face an uphill battle absent clear evidence of no probable cause or proof that similarly situated individuals are customarily not arrested (the “jaywalking”‑type exception). Plaintiffs should anticipate the need for comparator evidence to avoid summary judgment.
Excessive force in low‑level offense contexts: Even for minor offenses, officers may use brief, targeted force to overcome resistance (e.g., lifting, controlled roll‑over, brief pressure for cuffing), especially where injuries are minimal or nonexistent.
Video evidence: Body‑camera footage remains pivotal at the summary‑judgment stage. Clear recordings of warnings, refusals, proportional force, and offers of alternatives can be outcome‑determinative.
Pandemic‑era rules in the background: While the mask regulation set the scene, the court’s holding does not turn on the public‑health rule alone. The dispositive points were the content‑neutral volume directive and the subsequent order to leave—guidance that endures post‑pandemic.
Municipal policies: Although municipal liability was not at issue on appeal, the opinion offers a blueprint for lawful crowd‑management—use content‑neutral directives, escalate only after clear refusals, document alternative channels (e.g., livestream access), and record interactions.

Complex Concepts Simplified

Qualified Immunity: A legal shield protecting government officials from being sued for damages unless they violated a right that was clearly established at the time. It protects “all but the plainly incompetent or those who knowingly violate the law.”
Clearly Established Law: Not a broad slogan (e.g., “free speech is protected”) but a specific rule that puts every reasonable officer on notice that the precise conduct is unlawful in the context confronted.
Probable Cause: Reasonable grounds to believe a person committed a crime, based on the facts and circumstances known to the officer at the time. It is a practical, nontechnical, common‑sense standard.
Time, Place, and Manner Restrictions: Government may regulate the when, where, and how of speech, as long as restrictions are content‑neutral, narrowly tailored to serve important interests (like preventing disruption), and leave ample alternative means to communicate.
Retaliatory Arrest: A claim that officers arrested someone because of their speech. Under Nieves, such claims typically fail if the officer had probable cause, unless the plaintiff shows others generally are not arrested for the same conduct and the plaintiff was singled out.
Excessive Force—Objective Reasonableness: Courts weigh the severity of the suspected offense, the immediate threat posed, the degree of resistance or flight, injuries, and officers’ efforts to temper force. The evaluation is from the perspective of a reasonable officer on the scene, not with hindsight.

Conclusion

Somers v. Devine is a measured reaffirmation of two core principles: First, the First Amendment protects speech, but not the refusal to comply with reasonable, content‑neutral rules that enable government bodies—like school boards—to conduct their business without disruption. Second, when an attendee repeatedly refuses a lawful directive and an order to leave, a reasonable officer may conclude probable cause exists to arrest, and brief, proportionate force to overcome resistance is constitutionally permissible.

The decision will guide law enforcement and public‑meeting administrators throughout the Fourth Circuit: clear, content‑neutral commands; patience and warnings; documentation and alternatives; and proportional responses to resistance. For would‑be plaintiffs, the ruling underscores the centrality of probable cause and the evidentiary burdens of the Nieves comparator exception. In the broader legal landscape, the opinion harmonizes free‑speech values with orderly governance, signaling that officers acting reasonably to maintain decorum at public meetings will receive qualified‑immunity protection.