                              PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-1521


LAUREN GRAHAM,

                 Plaintiff - Appellant,

           v.

C. GAGNON; JANNIE CLIPP,

                 Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:14-cv-00872-TSE-TCB)


Argued:   May 11, 2016                     Decided:   July 27, 2016


Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Reversed and remanded by published opinion. Judge Floyd wrote
the opinion, in which Judge Motz and Senior Judge Davis
concurred.


Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellant.      Julia Bougie Judkins, BANCROFT,
MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax, Virginia, for
Appellees.
FLOYD, Circuit Judge:

       Appellant      Lauren   Graham    was    arrested     for   obstruction       of

justice.       The obstruction charge was ultimately dismissed and

her record expunged.           Graham subsequently filed a civil lawsuit

against the police officers responsible for her arrest, alleging

that    the    officers      violated    her    Fourth     Amendment      rights    by

arresting her without probable cause.                Following discovery, the

officers      moved   for    summary    judgment,    arguing       that   they     were

entitled to qualified immunity.                The district court granted the

officers’ motion, and Graham appealed.               Because we conclude that

it would have been clear to reasonable officers in Appellees’

position that they lacked probable cause to arrest Graham, we

reverse the grant of summary judgment and remand.



                                         I.

       The facts underlying this appeal are drawn from the summary

judgment record made after discovery in the district court and

are presented here in the light most favorable to Graham, the

non-moving party.           See, e.g., Merchant v. Bauer, 677 F.3d 656,

658 n.1 (4th Cir. 2012).



                                         A.

       At about 10:30 p.m. on September 16, 2012, Mitchell Lee

Cannon   called       the   Falls   Church,      Virginia,    Police      Department
(FCPD) to report an assault.                   Cannon was leaving a convenience

store when he encountered Colby Twinam, a male in his early

twenties,      in    the   parking      lot.        Apparently      still    harboring    a

grudge from high school, Twinam punched Cannon in the back of

the head.          Cannon pushed Twinam away and retreated behind his

car.      Twinam taunted Cannon, broke Cannon’s car antenna, and

then ran off.

       FCPD    officer     Clark       Gagnon      responded   to    Cannon’s      assault

report.        After interviewing Cannon, Gagnon obtained an arrest

warrant    for      Twinam   for       assault     and   destruction        of   property.

Based on a records check, Gagnon learned that Twinam had prior

arrests       in    2007   and   2008      for      destruction      of     property    and

possession of marijuana.                FCPD records indicated that Twinam’s

address was 205 Grove Avenue in Falls Church.                             Gagnon radioed

other on-duty FCPD officers to request assistance in arresting

Twinam; FCPD officers Jannie Clipp and Alan Freed each responded

that they would assist.

       Both Clipp and Freed arrived at the house at 205 Grove

Avenue    before      Gagnon,      a    few    minutes    after     midnight.          Clipp

proceeded to the front door; Freed went to the side of the house

where steps led up to a covered porch and a side door.                              Freed

encountered Twinam, who was sitting on the side porch steps.

After ascertaining Twinam’s identity, Freed told him that they

had a warrant for his arrest.                   Twinam responded by running into

                                               2
the   house   and   shutting    and    locking        the    side     door.       Twinam

shouted “Mom, the cops are here”!                    J.A. 460.        Clipp (at the

front door) and Freed (at the side door) began knocking loudly

and ringing the doorbell.



                                        B.

      Graham,    Twinam’s      56-year-old           mother,    had      been     asleep

upstairs and was awakened by the commotion.                         She “grabbed a

robe,” J.A. 52, and came downstairs to find “a lot of pounding

and yelling” at the front door as well as “pounding” at the side

door.      J.A. 53.      The family dog was “at this point barking

crazily.”       J.A.    54.    She    did      not    open   the    side    door,    but

proceeded to the front door in the living room.                          Graham opened

the front door, which consisted of both a main wooden door and a

storm door on an air pump.

      Clipp told Graham that they had a warrant and were there to

arrest Twinam.         Graham asked to see the warrant and Clipp told

her that the officers did not have the warrant with them.                            At

some point Freed joined Clipp at the front door; both officers

told Graham that she needed to produce Twinam to be taken into

custody.      Graham said, “[L]et me speak with my son,” J.A. 77,

and left the doorway to go find him.                  Clipp, following standard

practice,     placed    her   foot    in       the   doorway;      the    storm   door,



                                           3
closing automatically on the air pump, “then came in contact

with [her] foot.”        J.A. 28, 82.

       Graham found her son, Twinam, in the kitchen, talking to

his girlfriend on his cellphone.              The kitchen was not visible

from    the    front     door.       Twinam   was   apparently     asking    his

girlfriend whether he ought to try and run for it.                Graham said:

“[W]hy would you do that?             That’s just dumb.”        J.A. 69.     She

told Twinam, “[Y]ou need to come now, you need to cooperate.                   I

don’t know what the issue is but you’ve got to go.”               J.A. 71.

       At    some    point   while   Graham   was   in   the   kitchen,   Gagnon

arrived at the house and joined Clipp and Freed at the front

door.       Graham returned to the front door and told the officers

that “[she] was talking to [her son] and trying to get him to

come out.”          J.A. 73.     At some point Graham’s fiancé, Richard

Lilitch, who had also been asleep upstairs, came downstairs to

the living room.

       Graham and Lilitch returned to the kitchen and convinced

Twinam to go out to the police officers.                 The most direct route

from the kitchen to the living room passed through a pantry

area.       The pantry had doggie gates at either end to pen in the

family dog.          Twinam stepped over the first gate, followed by

Graham and then Lilitch.             As Twinam stepped over the second

gate, he came into view of the officers at the front door.

Gagnon and Freed entered the house and grabbed Twinam; in the

                                        4
process, Twinam and Freed tripped on the doggie gate and wound

up on the floor.       The officers handcuffed Twinam and took him

into custody.       About six or seven minutes had elapsed since

Graham had been awakened from her sleep.



                                      C.

     Gagnon took Twinam to the city detention center for booking

and turned him over to the sheriff.                Gagnon then went to the

duty magistrate and applied for an arrest warrant for Graham.

Gagnon sought to arrest Graham for obstruction of justice under

Virginia Code § 18.2-460(A).                 The Virginia statute provides:

“If any person without just cause knowingly obstructs . . . any

law-enforcement officer . . . in the performance of his duties

as such . . . he shall be guilty of a Class 1 misdemeanor.”                   Id.

The magistrate denied the warrant application.



                                      D.

     The three FCPD officers’ next shift together was a couple

days later.     At roll call, Gagnon told Clipp and Freed that the

magistrate    had   denied    his   request     for   an   arrest   warrant   for

Graham.      Clipp expressed surprise, telling Gagnon that Graham

“pretty much tried to shut the door on [me] and actually hit

[me] with the door.”         J.A. 164.        Gagnon had not previously been

aware of this information: he had not arrived at Graham’s house

                                         5
by that point and neither Clipp nor Freed had reported it over

the radio.

     Gagnon       went        before        the        duty     magistrate,         a      different

individual than the magistrate who had denied his first warrant

request.         Gagnon        told    the        second        magistrate          that    he    had

previously       been    denied        an    arrest           warrant,    but       informed      the

magistrate that he had learned new information.                                Gagnon told the

second magistrate “something like” “Ms. Graham had shut the door

on Officer Clipp’s foot.”                   J.A. 170-71.             The second magistrate

authorized an arrest warrant for Graham.

     Gagnon arrested Graham outside her home on September 20,

2012.      She    was    brought       before           a    magistrate       and    released         on

personal    recognizance.              The        charge       was   later     dismissed         with

prejudice and the record of her arrest expunged.



                                                  E.

     About       a      year    later,        Graham           filed     an        administrative

complaint with the FCPD.                The complaint was investigated by an

internal affairs officer, who interviewed the officers involved

and issued a recommendation against further action.                                        The FCPD

Chief,   Mary        Gavin,    conveyed           this       conclusion       to    Graham       in   a

letter dated November 8, 2013.                          Gavin told Graham that “[t]he

incident involved an arrest situation of an individual that was

evading arrest in your residence.                           The officers were reacting to

                                                   6
a situation that was becoming increasingly difficult because of

your actions.”      J.A. 27.

     Graham     subsequently     filed        suit    against      Gagnon     and    Clipp

pursuant to 42 U.S.C. § 1983.                  She alleged that the officers

violated her Fourth Amendment rights by arresting her without

probable    cause       to   suspect       she        had     violated       Virginia’s

obstruction     statute.       The    district        court       oversaw    discovery,

after   which     the   parties      cross-moved            for   summary     judgment.

Graham argued that on any view of the facts it was objectively

unreasonable for an officer to conclude there was probable cause

to arrest her.      The officers contended the opposite and asserted

that they were protected by qualified immunity.

     The   district      court    found        that     nothing      in     the     record

rebutted   “the    presumption       of   reasonableness           that     attends    the

issuance of a warrant by a neutral magistrate.”                       J.A. 465.       The

district court further found that:

     [I]t cannot be said on this record that the magistrate
     was so obviously in error that any reasonable officer
     would have recognized the error. . . .      There is a
     continuum of behavior from mere passive lack of
     cooperation to active attempts to prevent an arrest
     and it is the magistrate’s responsibility to determine
     whether or not the facts and circumstances reported to
     her   fall  on   the  probable  cause  side   of  this
     continuum. . . .

     The events at the Twinam/Graham residence were not so
     clearly passive noncooperation that no reasonably
     competent officer would have concluded that a warrant
     should issue. . . . Defendants, it appears, believed
     that when plaintiff left the front door to speak with

                                          7
     her son in the kitchen she was openly encouraging her
     son not to cooperate with [them] and come out of the
     house.   Given the officers’ inability to see or hear
     plaintiff’s conversation, the magistrate’s decision
     was not so obviously in error that defendants should
     be liable for failing to question her judgment.

J.A. 467-68 (citations omitted).                  The district court accordingly

granted the officers’ summary judgment motion on the basis of

qualified    immunity        and    denied       Graham’s    cross-motion    as   moot.

Graham timely appealed.



                                            II.

     Whether       a    party      is    entitled    to     summary   judgment    is   a

question of law we review de novo.                    Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc).                   The district court’s grant

of summary judgment to the officers was appropriate only if,

taking    the      evidence        and     all     reasonable     inferences      drawn

therefrom in the light most favorable to Graham, no material

facts were disputed and the officers were entitled to qualified

immunity as a matter of law.               See id.



                                           III.

     “The    doctrine        of    qualified       immunity     protects    government

officials ‘from liability for civil damages insofar as their

conduct     does       not   violate       clearly    established      statutory       or

constitutional rights of which a reasonable person would have


                                             8
known.’”       Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).                         In practical

effect, qualified immunity “gives government officials breathing

room to make reasonable but mistaken judgments.”                         Messerschmidt

v. Millender, 132 S. Ct. 1235, 1244 (2012) (citation omitted).

This       allowance       for   reasonable    mistakes     is     the    product      of

“balanc[ing]         two    important   interests—the       need   to     hold      public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.”                          Pearson,

555 U.S. at 231.

       The shield of qualified immunity is lost when a government

official (1) violates a constitutional right and (2) that right

was clearly established.              See, e.g., Merchant, 677 F.3d at 661.

The right at issue here is not the general right to be free from

arrest without probable cause, but rather the right to be free

from       arrest    under    the   particular   circumstances       of       the   case.

See, e.g., Pritchett v. Alford, 973 F.2d 307, 313-14 (4th Cir.

1992). 1       The    appellee      officers   lose   the   shield       of   qualified


       1
       Framing the right as the general right to be free from
arrest without probable cause would frustrate the purpose of
qualified immunity.   It is clearly established that the Fourth
Amendment prohibits police officers from arresting individuals
without probable cause.   See, e.g., McAfee v. Boczar, 738 F.3d
81, 87 (4th Cir. 2013); Miller v. Prince George’s Cty., 475 F.3d
621, 627 (4th Cir. 2007).   But framing the right at that level
(Continued)
                                           9
immunity if it would have been clear to reasonable officers in

their position that they lacked probable cause to arrest Graham

for violating Virginia’s obstruction of justice statute.                          See

id.     In   other    words,      the   officers’    immunity     turns    on     the

“objective legal reasonableness” of their conclusion that there

was probable cause to arrest Graham.                See Messerschmidt, 132 S.

Ct. at 1245.



                                        IV.

       Graham   argues    that     it   was   objectively      unreasonable       for

Gagnon and Clipp to conclude there was probable cause to arrest

her.     Therefore,      Graham    argues,    the   district     court    erred    in

holding that the officers were entitled to qualified immunity.

We agree.



                                         A.

       Before   evaluating        the   reasonableness      of    the    officers’

probable cause determination, we first clarify the effect of the




of generality would mean that the “clearly established” prong
would automatically be met in every suit alleging an arrest
without probable cause.   The immunity analysis would then turn
solely on whether the officer correctly concluded that probable
cause existed, eliminating the “breathing room” to make
reasonable mistakes.      Qualified immunity does not shield
officials from liability for all of their mistakes, but it does
shield them when their mistakes were reasonable.


                                         10
arrest warrant.        The officers make much of the fact that Gagnon

obtained—at least the second time he asked—an arrest warrant

from a neutral magistrate.            However, an arresting officer is not

automatically     immunized        from   suit       merely     because    the    officer

successfully requested an arrest warrant first.

     “[T]he fact that a neutral magistrate has issued a warrant

is   the   clearest     indication        that       the    officers      acted   in    an

objectively reasonable manner . . . . [but] the fact that a

neutral    magistrate        has    issued       a      warrant     authorizing        the

allegedly unconstitutional search or seizure does not end the

inquiry    into   objective        reasonableness.”              Messerschmidt,        132

S. Ct. at 1245. 2        For example, a warrant will not preclude a

civil    suit   when   “it   is    obvious       that      no   reasonably    competent

officer would have concluded that a warrant should issue.”                             Id.

(quoting Malley, 475 U.S. at 341).               The Malley Court explained:

     [I]t goes without saying that where a magistrate acts
     mistakenly in issuing a warrant but within the range
     of professional competence of a magistrate, the
     officer who requested the warrant cannot be held
     liable.    But it is different if no officer of
     reasonable   competence  would   have   requested  the
     warrant, i.e., his request is outside the range of the

     2 Messerschmidt was a search, vice seizure, case, but the
same standard is applicable in both contexts.        See, e.g.,
Messerschmidt, 132 S. Ct. at 1245 n.1 (explaining that “the same
standard of objective reasonableness” applied in suppression-
hearing cases “defines the qualified immunity accorded an
officer who obtained or relied on an allegedly invalid warrant”
and citing Malley v. Briggs, 475 U.S. 335, 344 (1986), an arrest
case).


                                          11
        professional competence expected of an officer.     If
        the magistrate issues the warrant in such a case, his
        action is not just a reasonable mistake, but an
        unacceptable error indicating gross incompetence or
        neglect of duty.   The officer then cannot excuse his
        own default by pointing to the greater incompetence of
        the magistrate.

475 U.S. at 346 n.9. 3         Consistent with Malley and Messerschmidt,

we   have   repeatedly       held   that    arrest    warrants   do   not   confer

immunity if it was objectively unreasonable to conclude there

was probable cause for the arrest.                   See, e.g., Merchant, 677

F.3d at 665-66; McAfee, 738 F.3d at 87.                   Accordingly, if the

officers’ decision to request a warrant for Graham’s arrest was

outside     the   range   of    professional     competence      expected   of   an

officer—that is, if it was objectively unreasonable to conclude

there     was     probable     cause   that     Graham    violated    Virginia’s

obstruction statute—then the officers are not immune from suit.




      3The Malley Court also stated that “[i]t is a sound
presumption that the magistrate is more qualified than the
police officer to make a probable cause determination.” Malley,
475 U.S. at 346 n.9 (citation omitted). Malley does not clarify
the effect on qualified immunity when that presumption is
rebutted. As the district court noted, in Virginia “magistrates
need not be members of the bar or trained lawyers.”     J.A. 464
n.4 (citing the Supreme Court of Virginia’s Magistrate Manual).
The record does not disclose the identity of the magistrates
involved in this case, but we need not decide whether the Malley
presumption holds as our conclusion here does not turn on the
magistrates’ qualifications.     We therefore presume that the
magistrates were in fact more qualified than the officers to
make a probable cause determination.


                                           12
                                         B.

     We now turn to the reasonableness of the officers’ probable

cause determination.       As we explained above, if a police officer

incorrectly determines that probable cause existed, the officer

does not necessarily lose the protection of qualified immunity.

If   the    probable     cause      determination,       though    mistaken,     was

nevertheless      objectively       reasonable,    the   officer    should     enjoy

immunity.       However, where the officer’s mistake was objectively

unreasonable, the officer may be subject to civil liability.

     It    is   impossible     to    determine     whether   a    probable     cause

determination was mistaken—and, if so, whether such a mistake

was reasonable—without an understanding of what would constitute

probable cause under the circumstances.               “Whether probable cause

exists in a particular situation . . . always turns on two

factors in combination: the suspect’s conduct as known to the

officer, and the contours of the offense thought to be committed

by that conduct.”        Pritchett, 973 F.2d at 314; see also, e.g.,

McAfee, 738 F.3d at 87; Sevigny v. Dicksey, 846 F.2d 953, 956-57

(4th Cir. 1988).       Thus, we ask:          (1) what did Clipp and Gagnon

know of Graham’s conduct?; and (2) what are the contours of the

conduct     proscribed    by     Virginia’s       obstruction      statute?       By

comparing Graham’s known conduct to the conduct proscribed by

the Virginia statute, we can then assess the reasonableness of

the officers’ decision to seek Graham’s arrest.

                                         13
                                            1.

       In determining what conduct of Graham’s was known to the

officers, we consider only “information actually possessed by

the officer[s] at the critical time, or that was then reasonably

available to [them], and in light of any exigencies of time and

circumstance that reasonably may have affected the officer[s’]

perceptions.”         Pritchett, 973 F.2d at 312 (citations omitted).

In   other    words,    we    do     not   impute          factual      knowledge        to    the

officers     that    they    did    not    have       or    that       was   not      reasonably

available to them.            Facts may later be discovered that would

have   made   it    clear    to     the    officers         that       no    crime     had    been

committed;     but,    if    those    facts      were       not    known         or   reasonably

available to the officers before the arrest, we do not include

those facts in the qualified immunity calculus.

       We are mindful, however, that this case is before us on the

officers’     summary       judgment       motion.           We    therefore          take     the

evidence and all reasonable inferences to be drawn therefrom in

the light most favorable to Graham.                    Henry, 652 F.3d at 531.                  We

have explained that “[t]he importance of summary judgment in

qualified     immunity      cases     ‘does      not       mean    .    .    .   that    summary

judgment doctrine is to be skewed from its ordinary operation to

give   special      substantive      favor       to    the    defense.’”              Wilson    v.

Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (quoting Pritchett,

973 F.2d at 313).

                                            14
      The operation of these principles to the record here is

straightforward:     the officers are assumed to have possessed the

information they would have had if events unfolded as Graham

asserts.     For example, the parties dispute the time that elapsed

from Graham being awakened until Twinam was in custody:                   the

officers assert it was approximately 15-20 minutes while Graham

puts the length of her involvement on the order of 6-7 minutes.

Compare Appellees’ Br. 8, with Appellant’s Br. 15-16.                  On the

officers’ summary judgment motion, we assume Graham’s version of

the   timeline. 4    We   thus   assume   that   the   officers’     “actually

possessed”    the   information    that   the    total   time   of    Graham’s

involvement was no more than about seven minutes.

      The factual version of events we laid out early in the

opinion is Graham’s version.        This is the version from which the

officers are assumed to have gathered the information they could

use to determine whether there was probable cause that Graham


      4“[W]hen documentary evidence ‘blatantly contradict[s]’ a
[party’s] account ‘so that no reasonable jury could believe it,’
a court should not credit [that party’s] version on summary
judgment.” Witt v. W. Va. State Police, Troop 2, 633 F.3d 272,
276-77 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)).   The record includes recordings of the officers’
radio communications on the night of Twinam’s arrest.    The log
of those recordings is time-stamped and thus enables at least a
partial reconstruction of the timing of events. Having reviewed
these recordings, we observe that the recordings are consistent
with—rather than contradictory to—Graham’s timeline.    The time
stamps cast serious doubt on the viability of the officers’
account of the time.


                                     15
had committed a crime.                However, not every fact in Graham’s

account of the evening is assumed to have been possessed by the

officers.     For example, on summary judgment we accept Graham’s

assertion that, while in her kitchen, she was encouraging her

son to cooperate and surrender himself.                     But the kitchen was out

of sight and earshot of the officers at the front door.                                  It

would thus be inappropriate to assume the officers “actually

possessed” the details of that conversation.                        Put another way,

even assuming events unfolded as Graham asserts, the officers

would still not have “actually possessed” information about a

conversation they were not in a position to hear.

       The district court correctly did not charge the officers

with   knowledge        of    that    conversation.          However,     rather       than

simply   leaving        the    content       of    the    conversation    out    of     the

analysis,    the       district      court    instead      improperly     credited      the

officers’     subjective          beliefs         about    what   might      have      been

happening in Graham’s kitchen.                 The district court stated, “[The

officers],       it    appears,      believed      that    when   [Graham]      left    the

front door to speak with her son in the kitchen she was openly

encouraging her son not to cooperate with them and come out of

the house.”           J.A. 468 (citation omitted).                We have repeatedly

explained that an officer’s subjective belief is not legally

relevant    to    the    probable      cause       analysis.       “Because     probable

cause is an objective test, we examine the facts within the

                                             16
knowledge      of    arresting    officers        to   determine    whether      they

provide a probability on which reasonable and prudent persons

would   act;    we   do   not    examine    the    subjective    beliefs    of   the

arresting officers to determine whether they thought that the

facts constituted probable cause.”                 United States v. Gray, 137

F.3d 765, 769 (4th Cir. 1998) (collecting cases); cf. Henry, 652

F.3d    at   535     (“[O]ur     Court     has    consistently      conducted     an

objective      analysis   of    qualified       immunity   claims   and    stressed

that an officer’s subjective intent or beliefs play no role.”).

       The officers could still have incorporated a suspicion that

Graham was encouraging her son to flee into their probable cause

calculation if it was objectively reasonable to suspect so—that

is, if a person “of reasonable caution . . . [would] believ[e]

[it], in the circumstances.”               See Michigan v. DeFillippo, 443

U.S. 31, 37 (1979).        Here, however, the officers do not point to

any factual circumstance that would make a person of reasonable

caution believe Graham was inciting her son to flight.                           For

summary judgment purposes:          (1) Graham told the officers, “[L]et

me speak with my son and get him,” J.A. 77; (2) Graham walked

into the house and then returned within a minute or so, telling

the officers that she “was talking to [her son] and trying to

get him to come out,” J.A. 73; and (3) Graham again walked into

the house and within another minute or so her son was walking

into view of the officers at the front door where he was taken

                                           17
into custody.        J.A. 74.     These facts are not flatly incompatible

with a reality in which Graham was in the kitchen encouraging

her son to flee arrest:           Graham could have been repeatedly lying

to the officers, and her sagacious son might have decided to

give himself up against the advice of his mother.                      But if the

officers believed that Graham was encouraging Twinam to flee, 5

that       belief   was,   at   best,   a   hunch,   and   “a   mere   hunch   that

illegal activity is afoot . . . [is not] probable cause.”                      Doe

v. Broderick, 225 F.3d 440, 452 (4th Cir. 2000) (citing United

States v. Sokolow, 490 U.S. 1, 7 (1989)). 6




       5
       We find it difficult to reconcile such a belief with the
actions of the officers here.    If the officers believed Graham
was actively encouraging her son to flee arrest, it strikes us
as odd that they would not, at the very least, have asked her to
stop doing so when she returned to the front door.    Any number
of other actions, such as, for example, having one of the three
officers watch the back door, might also have been consistent
with a belief that a footrace was imminent.

       6
       Even if Graham had been suggesting her son leg it out the
back door, it is not at all clear that such encouragement would
have put Graham in violation of the Virginia obstruction
statute.     In Atkins v. Commonwealth, police officers were
attempting to detain Atkins on suspicion of stealing a car. 678
S.E.2d 834, 835 (Va. Ct. App. 2009).        Atkins fled from the
officers into nearby woods, where he eluded capture for four
hours. Id. The Virginia Court of Appeals held that these facts
were   legally  insufficient   to   establish  obstruction  under
Virginia Code § 18.2-460(A).      Id.   If actual flight is not
obstruction, it would be odd if suggested flight was.


                                            18
                                          2.

      We turn now to the contours of the conduct proscribed by

the   Virginia     obstruction     statute.        The   statute       under   which

Graham was arrested states:              “If any person without just cause

knowingly obstructs . . . any law-enforcement officer . . . in

the performance of his duties as such . . . he shall be guilty

of a Class 1 misdemeanor.”           Va. Code Ann. § 18.2-460(A).               This

sparse language could be read in the first instance to proscribe

a wide ambit of conduct, although we would still struggle to fit

Graham’s conduct within that ambit.                At an absolute minimum,

something she did must have “obstructed” an attempted action of

one of the officers.         We cannot find in the record any attempted

action     by    the    officers   that    could    be   said     to    have    been

“obstructed”       by   Graham,    and    the   officers’       brief    and   oral

argument are likewise missing even a suggested action that was

actually obstructed.

      Regardless,       we   are   not    the   first    court    to    read   this

statute.        Both the Virginia courts and this Court have applied

the statute many times before, and there is a small mountain of

caselaw that makes clear that whatever the outer boundary of

Virginia Code § 18.2-460(A), Graham came nowhere near it.                         In

Wilson, we explained that “[t]he Virginia courts . . . have

subjected the Statute to a limiting construction, under which a

person must do more than merely render an arrest more difficult

                                          19
or inconvenient than it might otherwise have been . . . in order

to be criminally liable.”                    337 F.3d at 399 (citing Ruckman v.

Commonwealth, 505 S.E.2d 388, 389 (Va. Ct. App. 1998)).                                         We

further      explained           that        “[t]he      stringent         definition           of

obstruction that appears in Ruckman is nothing new to Virginia’s

jurisprudence,”        and       we    continued       by   noting     that          “[w]e    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.”            Id.       at   399-400    (citing            Rogers     v.

Pendleton, 249 F.3d 279, 291 (4th Cir. 2001)); accord, e.g.,

Jordan v. Commonwealth, 643 S.E.2d 166, 171 (Va. 2007).                                  Graham

did   not    thwart    or    prevent          Twinam’s      arrest;       it    is     far    from

apparent     that     she    impeded         or     frustrated    it      either.            Under

Virginia law, it is clear there was no probable cause to arrest

Graham for obstruction of justice.

      The officers advance the idea that Graham was less than

fully   cooperative         or    that       her    actions     made   their          task    more

difficult.      This was exactly the theory conveyed to Graham by

the   FCPD    Chief    after          Graham       complained    about         the    officers’

actions; Chief Gavin explained to Graham that Gavin felt her

officers were right to arrest Graham because they “were reacting

to a situation that was becoming increasingly difficult because

                                               20
of your actions.”      J.A. 27.    Even if Graham did make things more

difficult, 7 it is beyond debate that such conduct does not fall

within Virginia’s obstruction statute:                “[Section] 18.2–460(A)

requires   ‘actual    hindrance     or       obstruction    of     the     officer,’

‘opposition or resistance by direct action.’                    ‘[O]bstruction 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’ or ‘frustrate[s] [his or her]

investigation.’”       Rogers,    249    F.3d    at   291       (quoting    Polk   v.

Commonwealth, 358 S.E.2d 770, 772–73 (Va. Ct. App. 1987), and

Ruckman,   505    S.E.2d    at    389,        390).        It     is     objectively

unreasonable     to   conclude    anything       other   than      that     Graham’s

conduct fell well outside the Virginia statute.                        Accord, e.g.,

Kee v. City of Hampton, No. 2597-08-1, 2009 WL 3734053, at *3


     7 The officers do not make clear what about Graham’s conduct
made the arrest more difficult.    At oral argument, counsel for
the officers suggested that it would have been unproblematic had
Graham simply stayed in bed rather than coming downstairs and
opening the front door.       It seems extremely unlikely that
Graham’s actual conduct in coming downstairs did not make
Twinam’s arrest at least marginally less difficult for the
officers than had she put in earplugs and kept snoozing.
Regardless, once she opened the door and the officers asked her
to produce her son, it is unclear what the officers expected her
to do. Graham was about 56 years old and Twinam was about 21.
The officers could not have reasonably expected Graham to
physically wrestle her son to the front door.    Graham was left
to the power of her persuasion, a power she successfully used to
compel her son into custody within a matter of minutes.
Graham’s conduct strikes us as about as helpful as could be
expected.


                                        21
(Va. Ct. App. Nov. 10, 2009) (“[A]ppellant, by initially not

allowing    the    police      officer    into    his    house,      merely     made    the

[domestic       abuse]    investigation         more    difficult      by    failing     to

cooperate       with     the   officer.         There    was    no    direct     act     by

appellant to resist the officer.                   Courts have repeatedly held

that     such     indirect       acts     are     not     enough       to     constitute

obstruction.” (collecting cases)).

       The district court acknowledged some of these cases in a

footnote.       It further acknowledged Graham’s argument that those

cases establish that the facts here did not amount to probable

cause,     and     characterized         that     argument      as      “not     plainly

insubstantial.”          J.A. 466-67.          The district court nevertheless

found the officers were entitled to qualified immunity after

concluding,       essentially,          that     the     officers’          mistake     was

reasonable.       It was not.

       The district court summarized Virginia law thusly:                             “Mere

passive lack of cooperation does not constitute probable cause,

whereas    active      refusal    to    cooperate,       including      making    active

efforts to prevent the arrest from taking place, clearly may

amount    to    obstruction.”          J.A.    467.      Even   if     this    statement

correctly characterized Virginia law, we think it would still be

objectively unreasonable to conclude Graham made “active efforts

to prevent the arrest from taking place.”                            But it does not

correctly       characterize     Virginia        law.     As    just    one     example,

                                           22
Atkins held      that    a    suspect   who    flees    officers   attempting    to

detain him, and then hides out in the woods for four hours

evading the officers, cannot be convicted under the obstruction

statute.      678 S.E.2d at 835.           Atkins’s actions appear to fall

squarely at the “active efforts” end of the district court’s

obstruction continuum, but such actions have been clearly held

to fall outside the statute.

       The    district       court’s    formulation      also   strikes    us    as

unworkable in practice.              If an individual refuses to open her

front    door    to     officers      attempting   to     investigate,    is    the

individual      “passively       not    opening    the    door”    or    “actively

refusing to cooperate”?             Cf. Kee, 2009 WL 3734053, at *3.           These

difficulties are illustrated by Appellees’ contention at oral

argument that Graham could not have been arrested had she stayed

upstairs and refused to open the door, a set of circumstances

that we think would have made Twinam’s arrest more difficult

than what actually occurred.             Courts, however, need not struggle

with    the     semantics      of    “activity”    and    “passivity”;     as    we

explained earlier, obstruction under the Virginia statute does

not turn on such characterizations.

       Finally, we address the officers’ contention that “Graham’s

argument that she did not obstruct justice under Virginia Code

§ 18.2-460, and that there was no probable cause for her arrest

under that statute, is irrelevant.”                Appellees’ Br. 15.       It is

                                          23
true that an actual lack of probable cause is not dispositive

for    qualified       immunity         purposes;         qualified      immunity    protects

officers who make mistakes if those mistakes are reasonable.

But the officers’ contention misses the point.                                The boundaries

of    the   statute         are    extremely            relevant    to   an   assessment      of

whether a mistake was reasonable.

       The officers’ misconception may explain why they cite next

to no cases discussing the substantive scope of the Virginia

statute.      The officers cite Polk for the proposition that “an

offender need not actually obstruct an officer to be guilty of

obstruction       of    justice—an            offender’s        mere     attempt    to   do   so

constitutes a substantive offense.”                          Appellees’ Br. 28.           As an

initial matter—and as the officers acknowledge—Polk was applying

a     different        statute          that        criminalized         “attempt[ing]        to

intimidate       or     impede      a    .    .     .    law-enforcement       officer”       “by

threats, or force.”                See 358 S.E.2d at 771 n.1.                 It is unclear

what support the officers seek from Polk, but the court there

specifically contrasted the threats statute with other Virginia

statutes—such          as    the        one    at       issue      here—“requiring       actual

‘obstruction.’”          Id. at 772-773.

       If   the       officers      are       suggesting        that     Graham    obstructed

justice     in    the       same    manner        as     Polk—i.e.,      verbally—they        are

mistaken.        Polk was convicted under the threats statute after

repeatedly threatening to kill his arresting officer.                                    Id. at

                                                  24
771.     Graham was arrested pursuant to the obstruction statute,

and there is no contention that her verbal interaction with the

officers       was     anything    other    than     peaceful.       As    we     have

explained:

        Peaceful verbal criticism of an officer who is making
        an   arrest  cannot   be  targeted  under   a  general
        obstruction of justice statute such as Virginia’s
        without running afoul of the First Amendment:     “The
        Constitution does not allow such speech to be made a
        crime.   The freedom of individuals verbally to oppose
        or challenge police action without thereby risking
        arrest is one of the principal characteristics by
        which we distinguish a free nation from a police
        state.”

Wilson, 337 F.3d at 399 n.3 (quoting City of Houston v. Hill,

482     U.S.    451,     462–63    (1987)).        We    therefore       reject    any

contention that Graham’s arrest might have been justified by

non-violent criticism of the officers.



                                           3.

       Numerous decisions of the Virginia courts and this Court

provide guidance on the scope of Virginia Code § 18.2-460(A).

There     are    undoubtedly       still    gray     areas   at    the     statute’s

boundaries, meaning that officers enforcing it will at times

face close cases.           This was not one of those cases.                      Given

Graham’s known conduct, it would have been clear to reasonable

officers in Appellees’ position that they lacked probable cause

to    arrest    Graham    for     obstruction   of      justice.     We    therefore


                                           25
reverse the district court’s grant of summary judgment to Gagnon

and Clipp.



                                           V.

      Graham    asks     us   to    direct       the    district       court    to    enter

summary     judgment      for      her     and     to     remand       solely        for    a

determination of damages.                Graham argues that if we find the

officers clearly violated her constitutional rights, there are

no remaining liability issues to try.                      The problem with this

argument is that we concluded the officers clearly violated her

rights when the disputed facts are viewed in the light most

favorable to her.         Graham is entitled to summary judgment only

if the same conclusion obtains when viewing the facts in the

light most favorable to the arresting officers.                        Henry, 652 F.3d

at   531.      The    district     court   did     not    rule    on    the    merits      of

Graham’s motion.          J.A. 468.          Under the circumstances, it is

appropriate      to    remand      the   case     for    the     district       court      to

consider her motion—under the correct legal standards explained

above—in the first instance.



                                           VI.

      Finally, we return to the officers’ oft-repeated argument

that “it was reasonable for them to rely on the magistrate’s

finding of probable cause and issuance of an arrest warrant.”

                                           26
E.g., Appellees’ Br. 30-31.                   We have already explained why it

was unreasonable to do so here.                     But their argument also elides

the    fact     that      the    officers       received       guidance      from     another

magistrate.         That        magistrate,      to    whom     Gagnon    first     applied,

denied    the      warrant       application,         J.A.     462,   thus     putting      the

officers on notice that probable cause was lacking.

       The    district       court      observed       that,     unlike      federal       law,

“Virginia law does not require officers seeking arrest warrants

to do so by way of written declarations or sworn affidavits,”

J.A. 466 n.6 (citing Va. Code Ann. § 19.2-72), and that “[n]o

written record of the facts presented to the magistrates exists

here.”       Id.   Graham suggests that Gagnon was only able to obtain

a     warrant      from     the      second     magistrate        by     misleading        the

magistrate about the events of that night.                            The district court

correctly noted that the record does not contain any evidence of

false    statements         on       Gagnon’s       part.       Of     course,      with    no

requirement that warrant applications be recorded, how could it?

       We have assumed that Gagnon fairly presented the facts to

both    magistrates.            If    that    was     indeed    the    case,    the    second

warrant application would have been identical to the first, with

the     exception      that       Gagnon      could      have     also    recounted         the

additional fact of the storm door closing.                               As to the door

closing, this is how Clipp described it during her deposition:



                                               27
      Q. Did [Graham] attempt to force the door—to push your
      foot with the door notwithstanding your having told her
      that she needed to keep the door closed (sic)?

      A.   No. 8

      . . . .

      Q. Your foot was not injured by the door touching it,
      was it?

      A.   No.

      Q.   No.     Was the shoe scuffed?

      A.   No.    I mean, I didn’t inspect it after that;
      but . . . it wasn’t anything significant.

J.A. 240-41, 254.

      Having been told by the initial magistrate that there was

no   probable      cause   to   arrest   Graham,      the   officers   must   have

concluded the door-closing tipped the probable cause scales.

      We find it hard to take this very seriously.



                                 *   *   *    *   *




      8The FCPD Chief had apparently been given a                      different
impression. At her deposition, Chief Gavin testified:

      A.   I – as far as [Graham’s] action[] was, as I
      understood, was pushing the door back onto Officer
      Clipp’s foot.
      Q. Is that the screen door that closed on her foot?
      A. I believe so.

J.A. 422.


                                         28
     For   the   reasons   above,   we   reverse   the   district   court’s

grant of summary judgment to Appellees and remand.



                                                   REVERSED AND REMANDED




                                    29
