                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-1497



JERRY A. LOWE,

                                              Plaintiff - Appellee,

          versus


RANDY SPEARS, in his individual and official
capacity as a police officer for the City of
Huntington; CITY OF HUNTINGTON, WEST VIRGINIA,
a municipal corporation,

                                          Defendants - Appellants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:06-cv-00647)


Submitted:   December 12, 2007         Decided:     December 20, 2007


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John R. Teare, BOWLES RICE MCDAVID GRAFF & LOVE, LLP, Charleston,
West Virginia, for Appellants. Jonathan L. Matthews, Jason E.
Huber, FORMAN & HUBER, L.C., Charleston, West Virginia; Richard E.
Holtzapfel, HOLTZAPFEL LAW OFFICES, Hurricane, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Randy Spears and the City of Huntington (“the City”)

appeal the district court’s order denying in part and granting in

part the motion to dismiss Jerry Lowe’s 42 U.S.C. § 1983 (2000)

complaint.    For the reasons that follow, we affirm.

          In ruling on a motion to dismiss, a court must view the

claims in the light most favorable to the non-moving party, and all

allegations are accepted as true.       Republican Party of North

Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).        Lowe

alleged in his complaint that he parked his truck on the sidewalk

in front of his apartment building one day in order to unload.

Officer Spears arrived and began issuing a citation for illegal

parking. Lowe informed Spears he was handicapped and asked him not

to issue a citation if Lowe moved his truck immediately.    Spears

expressed doubt as to Lowe’s handicap, and Lowe pointed to his

handicap parking permit hanging from his rearview mirror.     When

Lowe attempted to explain he had merely parked on the sidewalk

temporarily while he unloaded his supplies, Spears ordered Lowe to

go inside the building or he would arrest him.

          Lowe stepped into the building and warned his employees

that a police officer was issuing parking tickets and they should

move their vehicles to avoid receiving any tickets. Spears said he

“was tired of [Lowe’s] mouth and that he was going to jail.”

Spears grabbed Lowe by the arm and attempted to pull Lowe out of


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the building.        Lowe’s father separated the two men.            Lowe called

911.     Additional police arrived and advised Spears to leave Lowe

alone.    Lowe was never charged with any crime stemming from this

encounter.

               Lowe filed claims under 42 U.S.C. § 1983 (2000) for false

arrest, excessive force, and unlawful retaliation, and state law

claims    of    battery,     false   arrest,    assault,    outrage,   abuse    of

process, negligence, and negligent hiring. He additionally alleged

municipal      and   state    liability   due    to   the   City’s   failure   to

adequately train, supervise and discipline its police officers.

               Spears and the City moved to dismiss the complaint.             The

district court granted the motions in part and denied in part.                 The

district court dismissed the claim against Spears in his official

capacity, the abuse of process claim, and the prayer for punitive

damages because they are expressly precluded by West Virginia law.

               The district court denied the motion as to the other

claims, concluding that Spears was not protected by qualified

immunity under the facts alleged, because Spears seized Lowe,

thereby arresting him, for exercising his freedom of speech, not

for parking illegally, and “no reasonable officer could have

believed that probable cause existed to arrest Lowe for exercising

his First Amendment right to question and remonstrate to Spears.”

Further, the district court concluded that Lowe placed Spears on

sufficient notice as to his state law claim of outrage, the City as


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to his claim of negligent hiring, and that he sufficiently alleged

facts supporting his claim that the City inadequately trained its

police.

          Spears and the City appealed.1         The numerous arguments

they raise on appeal all depend on the premise that the complaint

establishes   Spears   had   probable    cause   to   arrest   Lowe.   The

appellants contend the district court erred in concluding Spears

did not have probable cause to arrest Lowe because the district

court improperly focused on Spears’s subjective intent in arresting

Lowe rather than applying an objective test.          The appellants argue

Spears had ample probable cause to arrest Lowe for illegal parking

under West Virginia Code § 17C-13-6 and arguably had probable cause

for arresting him for obstructing a law enforcement officer under

West Virginia Code § 61-5-17(a).2

          When reviewing a motion to dismiss, the district court

must accept the allegations in the complaint as true and construe


     1
      We note that although interlocutory orders ordinarily are not
appealable, orders rejecting a defendant’s claim of qualified
immunity are appealable, Mitchell v. Forsyth, 472 U.S. 511, 530
(1985), provided the denial rests on a purely legal determination
that the facts establish a violation of clearly established law.
Johnson v. Jones, 515 U.S. 304, 316-17 (1995). The district court
order is appealable because the appellants argue that even
accepting all of Lowe’s factual allegations as true, Spears did not
violate the law by arresting him.
     2
      West Virginia law authorizes police officers to arrest an
individual for any criminal law violation committed in their
presence, regardless of the severity of the crime. W. Va. Code
Ann. § 62-10-9 (2005); see also Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001) (upholding a similar Texas statute).

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those allegations and the reasonable inferences derived therefrom

in the light most favorable to the plaintiff.        See Chisolm v.

TranSouth Fin. Corp., 95 F.3d 331, 334 (4th Cir. 1996).     Viewing

the factual allegations in this light, Spears arrested Lowe for

exercising his freedom of speech, not for the crimes of illegal

parking or obstructing a law enforcement officer.         Thus, the

question for the district court to address was whether Spears had

probable cause to arrest Lowe for exercising his First Amendment

rights.    Arresting a person solely based on speech that questions

or opposes police action violates the First Amendment.      City of

Houston v. Hill, 482 U.S. 451, 462-63 (1987). Therefore, the facts

as alleged in the complaint supported the claim of arrest without

probable cause, and the district court did not err by denying in

part the motion to dismiss.

            Accordingly, we affirm the decision of the district

court.    We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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