                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1075



SHAWNDRIA SMITH,

                                              Plaintiff - Appellee,

          versus

MCCLUSKEY, Officer,

                                             Defendant - Appellant.



                             No. 04-1181



SHAWNDRIA SMITH,

                                             Plaintiff - Appellant,

           versus

MCCLUSKEY, Officer,

                                              Defendant - Appellee.



Appeals from the United States District Court for the District of
South Carolina, at Florence.    C. Weston Houck, Senior District
Judge. (CA-02-286-12-4)


Argued:   December 2, 2004                 Decided:   March 11, 2005


Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed in part and reversed in part by unpublished per curiam
opinion.   Judge Gregory wrote an opinion concurring in the
judgment.


ARGUED: Cynthia Graham Howe, VAN OSDELL, LESTER, HOWE & JORDAN,
P.A., Myrtle Beach, South Carolina, for Officer McCluskey. William
Gary White, III, Columbia, South Carolina, for Shawndria Smith. ON
BRIEF: James B. Van Osdell, VAN OSDELL, LESTER, HOWE & JORDAN,
P.A., Myrtle Beach, South Carolina, for Officer McCluskey.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               -2-
PER CURIAM:

              Shawndria Smith was arrested on June 17, 2001, in Myrtle

Beach,    South    Carolina,          by    Myrtle   Beach    police    officer      Shon

McCluskey for violating a state statute prohibiting pedestrians

from walking in a roadway where a sidewalk is provided.                       Based on

Smith's conduct following his arrest, Smith was also charged with

violation of a Myrtle Beach disorderly conduct ordinance.                       A jury

subsequently acquitted Smith of both charges.

              Smith commenced this action against Officer McCluskey

under    42   U.S.C.    §    1983,     alleging      First   and    Fourth    Amendment

violations in conjunction with his arrest and the charges filed

against him.      Smith alleged that McCluskey violated (1) his Fourth

Amendment      rights       to   be    free       from   false     arrest,    malicious

prosecution, the use of excessive force, and warrantless arrest by

arresting him without probable cause and (2) his First Amendment

right to challenge verbally an arrest by subsequently charging him

with disorderly conduct.

              On Officer McCluskey's motion for summary judgment based

on qualified immunity, the district court concluded that McCluskey

had probable cause to arrest Smith and therefore was immune from

the   Fourth      Amendment      arrest-related          claims.       Analyzing     the

disorderly conduct charge as a second "arrest," however, the

district      court    concluded           that   Officer    "McCluskey      could   not

reasonably have believed that he had probable cause to arrest"


                                              -3-
Smith for disorderly conduct. The court accordingly denied Officer

McCluskey's motion for qualified immunity with respect to the

disorderly conduct "arrest."         Because we conclude that Officer

McCluskey was entitled to qualified immunity from all of Smith's

claims, we affirm in part and reverse in part.


                                     I

          Smith, a 25-year old truck driver, arrived in Myrtle

Beach, South Carolina on Friday, June 15, 2001, to make a delivery

and decided to stay for the weekend.        On Sunday evening, June 17,

Smith was passing time at Mother Fletcher's, a bar located on the

east side of Ocean Boulevard, with other bar patrons whom he had

befriended.     At the time, the area around Mother Fletcher's was

particularly crowded because it was "Grad Week," when large numbers

of high school students descend upon Myrtle Beach to celebrate the

end of the school year.

          One    of   the   bar   patrons   whom   Smith   had   befriended

purchased some Mardi-Gras-type beads from a nearby store, and he

and Smith began handing out the beads in front of Mother Fletcher's

to passersby on Ocean Boulevard in exchange for "a hug" or "a kiss

on the cheek or something."       After Smith had placed a set of beads

around the neck of a woman riding on the back of a motorcycle

stopped on Ocean Boulevard and was headed back toward Mother

Fletcher's, Officer McCluskey approached him.



                                    -4-
              According to Smith, Officer McCluskey advised him that he

could receive a citation for having stepped into traffic, and when

Smith asked, "What do you mean?", McCluskey replied, "I don't have

to explain nothing to you."          Then another officer handcuffed Smith

from behind.      Smith maintains that he never actually set foot on

the paved portion of the roadway, because the motorcycle was pulled

over, or that, at most, he might have stepped down onto the

concrete portion of the roadway that forms its gutter and curb.

              According to Officer McCluskey, Smith "walked right . . .

onto the road, held up his hand to stop traffic in the north bound

lane, and walked down Ocean Boulevard between the two north bound

lanes of traffic" before placing the beads on the motorcycle

passenger.      McCluskey maintains that he approached Smith while

Smith was still in the roadway and that when he directed Smith to

return to the sidewalk, Smith cursed him, stating, "What the f--k

are you talking about?      Leave me the f--k alone!"

              As additional police officers arrived at the scene and

Smith   was    taken   around   to   the   beach   access   alongside   Mother

Fletcher's, Smith continued to question the reasons for his arrest.

According to Smith, Officer McCluskey responded by questioning

whether Smith had been drinking, to which Smith replied that he had

had one beer earlier with dinner but that he was not drunk and

would be willing to take a Breathalyzer test.           McCluskey allegedly

ended the exchange by telling Smith, "Shut your mouth.              We don't


                                       -5-
want to hear nothing else out of you."    Officer McCluskey disputes

that he made these statements and recalls that Smith "began to yell

and act disorderly, slurring his words."         According to Officer

McCluskey, "[d]rool was coming out of [Smith's] mouth," and he

"could smell alcohol on [Smith's] breath."

           It is undisputed that at this point Smith started yelling

out something about "Rodney King."     Officer McCluskey recalls that

a handcuffed Smith kept trying to stand up, while the arresting

officers kept directing him to remain seated on the curb along the

beach   access.   McCluskey   states   that   Smith,   as    he   resisted,

continually cursed and yelled out that he was being treated like

Rodney King.   Smith, who is black, felt that he was being abused by

the officers, who were white.    According to Officer McCluskey, a

crowd of young men had begun to gather in response to Smith's

yelling, "causing a potentially volatile and uneasy situation."

Smith only disputes that he "cursed the officers."          Following this

episode, Officer McCluskey charged Smith with disorderly conduct.

           In all, Officer McCluskey issued Smith two citations.

One was a $220 citation for violation of South Carolina Code § 56-

5-3160(a), which prohibits pedestrians from walking upon a roadway

where an adjacent sidewalk is provided and its use is practicable,

and the other was a $445 citation for violation of City of Myrtle

Beach Code of Ordinances § 14-61, which prohibits breaches of the

peace, including disorderly conduct, public drunkenness, and "loud


                                 -6-
and boisterous" conduct.              Smith was released the day after his

arrest.       Following   a    jury    trial       in   December   2001,     Smith    was

acquitted of both charges.

               Shortly thereafter, Smith commenced this action under 42

U.S.C.    §    1983   against    Officer       McCluskey     and   Officer     Doe,    an

unidentified police sergeant who had been involved in Smith's

arrest.        Smith alleged that the officers violated his Fourth

Amendment       rights    to    be    free    from      false   arrests,     malicious

prosecutions, excessive force, and warrantless arrests by arresting

him without probable cause.                  He also alleged that his First

Amendment right to freedom of speech was violated by the officers'

citing him for disorderly conduct allegedly based on his verbal

protests to the arrest.          Officer Doe was never identified, and the

case proceeded solely against Officer McCluskey.

               On   Officer    McCluskey's         motion   for    summary    judgment

asserting qualified immunity, the district court granted it in part

and denied it in part.               Preliminarily, the court observed that

because Smith's deposition "shows that [Officer] McCluskey did not

use excessive force against him[, t]he only sustainable causes of

action . . . against McCluskey . . . are (1) the Fourth Amendment

claims of false arrest, malicious prosecution, and warrantless

arrest, [and] (2) the First Amendment claim."                        The court then

concluded that, since "a reasonable officer would have believed

that the plaintiff had violated" the South Carolina pedestrian-


                                             -7-
roadway statute, Officer McCluskey had probable cause to arrest

Smith for that violation and therefore was entitled to summary

judgment as to Smith's Fourth Amendment claims associated with that

arrest. Finally, the court analyzed the claims associated with the

disorderly conduct charge.        Conceptualizing this second charge as

a second "arrest," the court concluded that the facts that Mr.

Smith "became argumentative and challenged his arrest" and that his

"breath smelled of alcohol" were insufficient to give Officer

McCluskey probable cause to "arrest" Smith for disorderly conduct.

The   court    also   concluded   that     Officer   "McCluskey   could   not

reasonably have believed that he had probable cause to arrest

[Smith]" and that "an officer in McCluskey's position could not

reasonably have thought his actions comported with the First

Amendment."      Accordingly, the court denied Officer McCluskey's

motion with respect to Fourth and First Amendment claims associated

with the disorderly conduct "arrest."

              From the district court's interlocutory order granting in

part and denying in part qualified immunity, Officer McCluskey

appealed and Smith cross-appealed. Officer McCluskey contends that

the district court erred by denying him qualified immunity for the

claims associated with the disorderly conduct charge, and Smith

contends that the district court erred by granting McCluskey

qualified immunity for the claims associated with his arrest.




                                     -8-
                                          II

              In   considering     qualified      immunity,     we   consider   two

sequential questions.          The first is:        "Taken in the light most

favorable to the party asserting the injury, do the facts alleged

show    the   officer's    conduct    violated      a   constitutional     right?"

Saucier v. Katz, 533 U.S. 194, 201 (2001).                    If a constitutional

right is found to have been violated, the second question is

whether the right was clearly established.              Id.    And our inquiry on

the second question "must be undertaken in light of the specific

context of the case, not as a broad general proposition."                       Id.

Thus applying the Supreme Court's qualified immunity jurisprudence,

our first inquiry is whether the facts alleged -- taken in the

light most favorable to Smith -- show that Officer McCluskey

violated Smith's constitutional rights by arresting him under the

South Carolina pedestrian/roadway statute.

              Officer McCluskey arrested Smith for violating South

Carolina Code § 56-5-3160(a), which states that "[w]here a sidewalk

is provided and its use is practicable, it shall be unlawful for

any    pedestrian    to   walk    along    and   upon   an    adjacent   roadway."

Section 56-5-460 defines "roadway" as "that portion of a highway

improved,     designed    or     ordinarily      used   for    vehicular   travel,

exclusive of the shoulder."           Taking the facts in the light most

favorable to Smith, we assume that he at the most stepped down onto




                                          -9-
the concrete portion of the roadway that serves as its gutter and

curb.

              Notwithstanding the questions of whether this concrete-

gutter portion is part of the "roadway" and whether standing upon

it constitutes "walk[ing] along and upon" a roadway, we conclude

that Officer McCluskey had probable cause to believe that Smith

violated the statute.      Officer McCluskey need not have known with

certainty of such a violation; rather, he merely must have had

"facts and circumstances within [his] knowledge . . . sufficient to

warrant   a    prudent   person,   or   one   of   reasonable   caution,   in

believing, in the circumstances shown, that [Smith] ha[d] committed

. . . [the] offense."        Michigan v. DeFillippo, 443 U.S. 31, 37

(1979).     Officer McCluskey observed Smith interacting with the

motorcycle passenger, who was herself located in the roadway, and

Smith concedes that he may have stepped down off of the sidewalk.

These facts and circumstances are sufficient to cause a reasonable

officer to believe that the pedestrian/roadway statute had been

violated.       Consequently,   Officer    McCluskey's    arrest   of   Smith

without a warrant did not violate the Fourth Amendment, even though

the nature of the offense might be considered minor in nature.

See Maryland v. Pringle, 540 U.S. 366, 370 (2003); Atwater v. City

of Lago Vista, 532 U.S. 318, 354 (2001).

              Since there could have been no constitutional violation

on the facts alleged, "there is no necessity for further inquiries


                                    -10-
concerning qualified immunity."               See Saucier, 533 U.S. at 201.

Officer McCluskey is entitled to immunity from Smith's claims

stemming from the arrest, and we therefore affirm the district

court's decision granting McCluskey summary judgment as to these

claims.


                                        III

              The   district   court    denied    Officer   McCluskey   summary

judgment as to Smith's First and Fourth Amendment claims stemming

from   the    disorderly    conduct     charge.      Our    threshold   inquiry

continues to be whether, taking the facts as alleged by Smith,

Officer      McCluskey   violated      Smith's    constitutional   rights    by

charging him with disorderly conduct under the City of Myrtle Beach

ordinance.      See Saucier, 533 U.S. at 201.

             First, we conclude that the district court erred in

treating this second charge as a second "arrest," because Smith was

already under arrest pursuant to probable cause at the time Officer

McCluskey decided to charge him under the city ordinance.                 Smith

therefore has no cognizable Fourth Amendment claims associated with

this second charge.        His Fourth Amendment claims of false arrest

and warrantless arrest fail in the absence of an associated arrest,

and a malicious prosecution claim under § 1983 "is simply a claim

founded on a Fourth Amendment seizure that incorporates elements of

the analogous common law tort of malicious prosecution."                Lambert



                                       -11-
v. Williams, 223 F.3d 257, 262 (4th Cir. 2000).   With no associated

seizure, there can be no cognizable malicious prosecution claim.

          This leaves Smith's First Amendment claim, in which Smith

asserts that he was unconstitutionally charged for disorderly

conduct solely on the basis of his conversational opposition to his

arrest.   We conclude that Officer McCluskey's decision to charge

Smith with disorderly conduct was made on the basis of facts and

circumstances independent of any expression protected by the First

Amendment.

          Officer McCluskey issued Smith a citation under City of

Myrtle Beach Code of Ordinances § 14-61, which makes it a crime

"for any person to commit any breach of the peace, conduct himself

in a disorderly manner, be publicly drunk or under the influence of

intoxicating beverages, be loud and boisterous or conduct himself

in such a manner as to disturb the peace and quiet of the public."

It is undisputed that, following Smith's arrest, there was physical

interaction between Smith and the officers.   According to Officer

McCluskey, Smith was instructed to remain seated on the curb, but

he kept returning to a standing position; and each time Smith

raised himself, officers had to force him back down to the curb.

In response to what he perceived to be police brutality, Smith

began yelling that the officers were "treating him like 'Rodney

King.'"   In response to the yells, Officer McCluskey recalled, a

crowd of young men had begun to gather, "causing a potentially


                               -12-
volatile and uneasy situation."           We conclude that Smith's refusal

to comport with the officers' reasonable demands to remain in place

and his yells, along with the circumstances of the potentially

volatile crowd, were sufficient to warrant a reasonable officer in

believing that Smith was "conduct[ing] himself in a disorderly

manner" or "in such manner as to disturb the peace."                          City of

Myrtle     Beach,    S.C.,       Code     of     Ordinances       §    14-61;      see

also DeFillippo, 443 U.S. at 37.

            While "the First Amendment protects a significant amount

of verbal criticism and challenge directed at police officers,"

City of Houston v. Hill, 482 U.S. 451, 461 (1986), and simple

conversational opposition to an arrest might well fall into this

category, speech "likely to produce a clear and present danger of

a   serious      substantive     evil     that     rises    far       above     public

inconvenience, annoyance, or unrest" is not protected by the

constitution, id. (quoting Terminiello v. City of Chicago, 337 U.S.

1, 4 (1949)) (internal quotation marks omitted).                       According to

Officer McCluskey, and not disputed by Smith, there was such a

clear and present danger of crowd violence in response to Smith's

belligerent      conduct   and    his    calls     of   "Rodney       King,"    which

presumably led the crowd to believe that Smith was a victim of

race-motivated police brutality.

            Since Smith's Fourth and First Amendment rights were not

violated    by    being    charged      with   disorderly     conduct,         Officer


                                        -13-
McCluskey is also entitled to qualified immunity from Smith's

claims related to that charge.     See Saucier, 533 U.S. at 201.    We

therefore reverse the district court's denial of summary judgment

on these claims.


                                  IV

           In short, Officer McCluskey is entitled to qualified

immunity from all claims asserted by Smith in this action.         The

district court's order is therefore affirmed in part and reversed

in part.



                                 AFFIRMED IN PART AND REVERSED IN PART




                                 -14-
GREGORY, Circuit Judge, concurring in the judgment:

     Although I concur in the judgment, I write separately because

I believe that this matter should be decided solely on the narrow

ground that the existence of probable cause to arrest Smith for

violation of the pedestrian in the roadway ordinance is fatal to

his First and Fourth Amendment claims.

     The majority opinion affirmed the district court’s finding

that probable cause existed for Officer Mcluskey to arrest Smith

for violating the pedestrian in the roadway ordinance.    I am of the

opinion that this finding effectively resolves all of the claims

before us.   As the Fifth Circuit recently noted, “‘[i]f there was

probable cause for any of the charges made ... then the arrest was

supported by probable cause and the claim for false arrest fails.’”

R.C. Price v. Roark, 256 F.3d 364, 369 (5th Cir. 2001).    Similarly

here, because there was probable cause for the arrest, Smith’s

First and Fourth amendment claims must fail.

     For that reason, and that reason alone, I concur in the

judgment.




                               -15-
