UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT F. SPIERS,
Plaintiff-Appellee,

v.                                                              No. 98-1798

GENE E. SYDNOR,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-97-841)

Argued: January 25, 1999

Decided: March 10, 1999

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

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Reversed by unpublished per curiam opinion.

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COUNSEL

ARGUED: John Adrian Gibney, Jr., SHUFORD, RUBIN & GIB-
NEY, P.C., Richmond, Virginia, for Appellant. Jason Wade Kon-
vicka, EMROCH & KILDUFF, L.L.P., Richmond, Virginia, for
Appellee. ON BRIEF: William B. Kilduff, EMROCH & KILDUFF,
L.L.P., Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Robert F. Spiers brought this action pursuant to 42 U.S.C.A.
§ 1983 (West Supp. 1998), alleging that Richmond County, Virginia
Sheriff Gene E. Sydnor violated Spiers' Fourth Amendment rights by
arresting him without probable cause. The district court denied Sheriff
Sydnor's motion for summary judgment, which raised among other
defenses a claim of qualified immunity. We reverse.

I.

On October 11, 1997,1 Spiers, who was employed as the director
of the Lancaster High School marching band, was leading the band
in a parade through Warsaw, Virginia on Route 360. As the parade
progressed, the band moved more slowly than the unit preceding it,
and a gap developed between the units. Spiers attempted to have the
band move more quickly, but when "the band began to space out,"
Spiers slowed the band. J.A. 59.

Sheriff Sydnor was controlling traffic flow at an intersection on the
parade route. Because the gap between Spiers' band and the unit pre-
ceding it had grown so large that one could no longer see the unit
ahead over the crest of a hill, Sheriff Sydnor directed Spiers, who was
in front of the band, to speed up. Sheriff Sydnor was concerned about
the traffic hazard created when a large gap develops in a parade, per-
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1 Because the district court did not set forth the factual basis for its
decision, we present the facts in the light most favorable to Spiers. See
Winfield v. Bass, 106 F.3d 525, 533-35 (4th Cir. 1997) (en banc) (hold-
ing that in reviewing the denial of summary judgment on a governmental
official's claim of qualified immunity, when the district court fails to set
forth fully the factual basis for its decision, this court accepts facts that
are undisputed and views the remaining evidence properly before the dis-
trict court in the light most favorable to the nonmoving party).

                    2
mitting drivers to pull into the parade route without recognizing that
a parade is in progress. Spiers responded to Sheriff Sydnor that the
band was moving as quickly as possible. Sheriff Sydnor stated, "Pick
up the pace or you're out of the parade." J.A. 62 (internal quotation
marks omitted). Spiers again responded, "We're going as fast as we
can." Id. (internal quotation marks omitted).

The parties agree that the following occurred within a matter of
seconds. Sheriff Sydnor approached a banner at the front of the band
carried by two high school girls and began to turn it, and with it the
band, to the right.2 Spiers, however, instructed the band to continue
down the parade route. Sheriff Sydnor immediately turned around,
handcuffed Spiers, and informed him that he was under arrest. Sheriff
Sydnor sat Spiers on the curb and said, "Now sit[there] and let every-
one look at you." Id. (internal quotation marks omitted). Spiers sat on
the curb for approximately 15 minutes until he was transported to the
police station, where he was released. No charges were ever filed
against Spiers.

II.

Government officials performing discretionary functions are enti-
tled to qualified immunity from liability for civil damages to the
extent that "their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In analyz-
ing an appeal from the rejection of a qualified immunity defense, our
first task is to identify the specific right that the plaintiff asserts was
infringed by the challenged conduct. See Taylor v. Waters, 81 F.3d
429, 433 (4th Cir. 1996). The court then must consider whether, at the
time of the claimed violation, that right was clearly established and
"`whether a reasonable person in the official's position would have
known that his conduct would violate that right.'" Id. (quoting
Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992)). Our review of
the denial of summary judgment based on qualified immunity is
de novo. See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992).
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2 There was also undisputed testimony from a third party who wit-
nessed the event that Sheriff Sydnor waved his arms, gesturing that the
band should leave the highway.

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Spiers asserts that Sheriff Sydnor violated his Fourth Amendment
right to avoid an unreasonable seizure by arresting him without proba-
ble cause. Sheriff Sydnor maintains that he had probable cause to
believe that Spiers had violated Va. Code Ann. § 18.2-460(A)
(Michie 1996), which provides in pertinent part,"If any person with-
out just cause knowingly obstructs ... any law-enforcement officer in
the performance of his duties as such[,] ... he shall be guilty of a Class
2 misdemeanor." Spiers contends, however, that no reasonable officer
could have believed that he possessed probable cause to arrest for a
violation of § 18.2-460(A) because there was no evidence that Spiers
knowingly or intentionally obstructed the officer in the performance
of his duties.

We hold that an officer in Sheriff Sydnor's position reasonably
could have concluded that Spiers was guilty of knowingly obstructing
a law enforcement officer in his duties. See United States v. Garcia,
848 F.2d 58, 59-60 (4th Cir. 1988) (holding that probable cause exists
when the facts and circumstances known to the officer "would war-
rant the belief of a prudent person that the arrestee had committed or
was committing an offense" (internal quotation marks omitted)). An
officer in Sheriff Sydnor's position reasonably could have believed
that Spiers had the requisite intent to obstruct based on the following
facts: He had told Spiers to have the band close the gap or they would
be removed from the parade; Spiers had indicated that the band could
not speed up; Sheriff Sydnor had instructed the band to leave the
parade route; and, Spiers nonetheless, in apparent direct contravention
of this instruction, had directed the band to continue marching down
the parade route.

With the benefit of hindsight, we have no doubt that Sheriff Sydnor
overreacted and that Spiers did not intend to violate the law. Never-
theless, based on the information known to Sheriff Sydnor at the
moment he arrested Spiers, a reasonable officer could have concluded
that Spiers was knowingly obstructing the performance of Sheriff
Sydnor's duties. Accordingly, an officer in Sheriff Sydnor's position
reasonably could have believed that the facts known to him were suf-
ficient to establish probable cause for Spiers' arrest. Therefore, Sher-
iff Sydnor is entitled to qualified immunity on Spiers' § 1983 claim
alleging that his arrest was unsupported by probable cause in violation

                     4
of Spiers' Fourth Amendment rights. See Malley v. Briggs, 475 U.S.
335, 344-45 (1986).

REVERSED

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