                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 17-3419
                           ___________________________

                               Eric Roshaun Thurairajah

                           lllllllllllllllllllllPlaintiff - Appellee

                                              v.

City of Fort Smith, Arkansas; Sebastian County, Arkansas; State of Arkansas; Bill
Hollenbeck, individually and in his official capacity as Sheriff for the County of Sebastian

                               lllllllllllllllllllllDefendants

    Trooper Lagarian Cross, individually and in his Official Capacity as a State
       Trooper with and for the State of Arkansas, also known as L. Cross

                         lllllllllllllllllllllDefendant - Appellant

   John Does 1-5, individually and in their official capacity in their roles as an
  employee of the City of Fort Smith, The State of Arkansas, The Arkansas State
                  Police and/or Employee of Sebastian County

                                lllllllllllllllllllllDefendant
                                       ____________

                      Appeal from United States District Court
                   for the Western District of Arkansas - Ft. Smith
                                   ____________

                            Submitted: December 12, 2018
                                Filed: June 3, 2019
                                   ____________
Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
                             ____________

SMITH, Chief Judge.

       Arkansas State Trooper Lagarian Cross appeals the district court’s1 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 qualified immunity.

                                   I. Background
       In 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).2


      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.
      2
        Cross argues in his briefing that he believed the disorderly conduct statute
could have also been violated on account of the obscene nature of the language. Ark.
Code Ann. § 5-71-207(a)(3). At oral argument, however, he waived all reliance on
this statutory section.

                                         -2-
       Thurairajah 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 constitutional rights.

                                     II. Discussion
       On 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).

        We 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).

                                A. Fourth Amendment
      Trooper 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

                                          -3-
relevant law pertaining to the disorderly conduct statute is not sufficiently clear to
provide notice that an arrest would violate the Fourth Amendment.

        “A 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 reasonable officer in his shoes would
have reasonably believed, even if mistaken, based on objective facts, that Thurairajah
was violating the disorderly conduct statute’s excessive noise prohibition by shouting
the two-word insult from a moving vehicle with an unamplified human voice.

       The disorderly conduct statute reads: “A person commits the offense of
disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or
alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he
or she makes unreasonable or excessive noise.” Ark. Code Ann. § 5-71-207(a)(2).
Under the statute, the verbal content of Thurairajah’s yell is irrelevant. See id. The
statute does not penalize offensive speech, only unreasonable or excessive noise. Id.
Arkansas courts have not previously concluded that a two-word yell could violate the
disorderly conduct statute’s unreasonable or excessive noise provision. To be sure,

                                          -4-
shouting can form the basis of disorderly conduct. Those cases where shouting was
part of a scenario that resulted in a finding of disorderly conduct, however, involved
extended loud shouting and disruptive behavior or amplified sound. As the district
court noted, context matters in analyzing the facts. In no case, has a two-word
unamplified outburst constituted disorderly conduct.3


      3
        See Duhe v. City of Little Rock, Arkansas, No. 4:14-CV-580-KGB, 2017 WL
1536231, at *19–20 (E.D. Ark. Apr. 27, 2017), aff’d sub nom. Duhe v. City of Little
Rock, 902 F.3d 858 (8th Cir. 2018) (finding at least arguable probable cause existed
to make a disorderly conduct arrest when persons were utilizing microphones and
amplifiers for an extended time, several people in nearby businesses complained
about the disruption of their work, traffic was disrupted, and the noise could be heard
from a block away continuously); Williams v. State, 887 S.W.2d 312, 314 (Ark. Ct.
App. 1994) (affirming the probable cause arrest of a man shouting and cursing at
officers as they were arresting juvenile suspects, refusing police commands to back
away, shouting and cursing at a store clerk, and pounding on the store window);
Dubois v. State, No. CACR07-944, 2008 WL 2192096, at *2 (Ark. Ct. App. May 28,
2008) (affirming a finding of disorderly conduct where a man, upon discharge from
a medical center, angrily demanded drugs and a ride home, and in the presence of
patients and staff “continued ‘hollering and yelling’ and using profanity for about 15
minutes,” then continued to rant and use profanity after police were called); Pride v.
State, No. CACR 99-272, 1999 WL 826184, at *1–2 (Ark. Ct. App. Oct. 13, 1999)
(affirming disorderly cause conviction when law enforcement officer “heard the
disturbance as he pulled up” to respond to a nuisance complaint, saw that a crowd had
gathered and observed defendant “was yelling, screaming, using profanity, and acting
in an irate, hostile, and irrational manner, and continued to do so after being placed
in the police car”); Chambers v. State, No. CACR94-246, 1995 WL 23389, at *3
(Ark. Ct. App. Jan. 18, 1995) (affirming disorderly conduct conviction of a man who,
when asked by law enforcement officers for identification in a grocery store, “was
arguing, cursing, and creating a scene in general, and people started to gather
around”); Kelly v. State, No. CACR 89-340, 1990 WL 128206, at *1 (Ark. Ct. App.
Sept. 5, 1990) (affirming disorderly conduct conviction of woman where a police
officer responding to a nuisance call observed an upset woman “cursing very loud[ly]
and using obscene language” in the presence of a gathering group, and when asked
by officers what was wrong again “began cursing, ranting, and raving” so loudly that
she had to be placed in closed police car to muffle noise).

                                         -5-
       Arkansas precedent declining to uphold a disorderly conduct charge is also
illustrative. In M.J. v. State, the Arkansas Court of Appeals held that 20 seconds of
public shouting involving foul language did not establish disorderly conduct. 381
S.W.3d 880, 883–84 (Ark. Ct. App. 2011). Thurairajah’s shout was unamplified and
fleeting, no crowd gathered because of it, city traffic was not affected, no complaints
were lodged by anyone in the community, business was not interrupted, nor were an
officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was
not an unreasonable or excessive noise. Trooper Cross lacked even arguable probable
cause for an arrest and thus violated Thurairajah’s Fourth Amendment right to be free
from unreasonable seizure.

       Thurairajah’s Fourth Amendment right to be free from unreasonable seizure
was clearly established at the time of his arrest. See Pearson, 555 U.S. at 232. “It was
clearly established in 2013 ‘that a warrantless arrest, unsupported by probable cause,
violates the Fourth Amendment.’” Hoyland v. McMenomy, 869 F.3d 644, 652 (8th
Cir. 2017) (citing Baribeau v. City of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010)
(per curiam)). No contrary precedent was issued between 2013 and 2015, when
Trooper Cross arrested Thurairajah.

      Accordingly, we affirm the denial of qualified immunity for Thurairajah’s
Fourth Amendment claim.

                            B. First Amendment Claim
      Thurairajah also alleges that his shout was protected First Amendment speech.
As protected speech, it should be free from retaliatory government actions.

       To prove a constitutional violation, Thurairajah must show that he was arrested
in retaliation for a protected speech activity. See Hartman v. Moore, 547 U.S. 250,
256 (2006). This claim requires a four-part showing that

      (1) [Thurairajah] engaged in a protected activity; (2) [Trooper Cross]
      took adverse action against him that would chill a person of ordinary

                                          -6-
      firmness from continuing in the activity; (3) the adverse action was
      motivated at least in part by [Thurairajah’s] exercise of the protected
      activity; and (4) lack of probable cause or arguable probable cause.

Hoyland v. McMenomy, 869 F.3d 644, 655 (8th Cir. 2017) (cleaned up). All four
prongs are satisfied here.

       First, Thurairajah’s profane shout was protected activity. See, e.g., Cohen v.
California, 403 U.S. 15, 25 (1971) (holding where defendant walked through
courthouse corridor wearing jacket bearing the words “F**k the Draft” in place where
women and children were present and no showed no intent to incite disobedience to
or disrupt the draft, state lacked power to punish defendant for underlying content of
message the inscription conveyed). Second, Trooper Cross’s arrest was an action that
would chill continued activity by a person of ordinary firmness. As we recognized in
Hoyland, “there can be little doubt that being arrested for exercising the right to free
speech would chill a person of ordinary firmness from exercising that right in the
future.” 869 F.3d at 657 (internal quotation omitted). And, according to a fair reading
of Trooper Cross’s affidavit, the arrest was motivated, at least in part, by the content
of the shout. Cross Aff. at 1–2, Thurairajah v. Hollenbeck, No. 2:16-cv-02123 (W.D.
Ark. June 16, 2017), ECF No. 21-4.4 Finally, as discussed above, Cross had neither
probable cause nor arguable probable cause to arrest Thurairajah.5

      4
       The affidavit states that “the young children . . . upon hearing Mr.
Thurairajah’s yell put their hands over their mouths as if to be alarmed by the
statement.” Cross Aff. at 1. “[Trooper Cross] observed that they were affected and
were alarmed by the statement yelled by Mr. Thurairajah. . . . Thus, [Trooper Cross]
immediately decided to leave the traffic stop and initiated a traffic stop of Mr.
Thurairajah.” Id. at 2. It is clear from this reading that Trooper Cross was primarily
focused on the content of the statement, not the volume or length of the noise.
      5
        Because we conclude that “Trooper Cross lacked even arguable probable
cause for an arrest and thus violated Thurairajah’s Fourth Amendment right to be free
from unreasonable seizure,” see supra Part II.A, the Supreme Court’s recent decision
holding that a First Amendment retaliatory arrest claim fails as a matter of law when
the arrest is based on probable cause is inapposite. See Nieves v. Bartlett, No. 17-
1174 (U.S. May 8, 2019).

                                          -7-
       Thurairajah’s First Amendment right to be free from retaliation was clearly
established at the time of his arrest. “[T]he law is settled that as a general matter the
First Amendment prohibits government officials from subjecting an individual to
retaliatory actions . . . for speaking out.” Hartman, 547 U.S. at 256. With limited
exceptions not relevant here, even profanity is protected speech. See, e.g., Cohen, 403
U.S. at 25. Criticism of law enforcement officers, even with profanity, is protected
speech. See City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987); Hoyland, 869
F.3d 644.

     Accordingly, we hold that the district court did not err by denying qualified
immunity to Trooper Cross for the First Amendment claim.

                                 III. Conclusion
     For the foregoing reasons, we affirm the district court’s order denying qualified
immunity.
                     ______________________________




                                          -8-
