                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-2202


ROBERT HARRISON,

                 Plaintiff - Appellant,

           v.

CHARLIE T. DEANE, individually and in his official capacity
as Chief of the Prince William County Police Department;
MICHAEL SULLIVAN, individually and in his official capacity
as a member of the Prince William County Police Department;
JOHN MORA, individually and in his capacity as a member of
the Prince William County Police Department; JOHN DOES 1-10,
individually and in their capacity as members of the Prince
William County Police Department,

                 Defendants – Appellees,

           and

PRINCE WILLIAM COUNTY POLICE DEPARTMENT; GREG PASS,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:08-cv-00677-JCC-TCB)


Argued:   January 28, 2011                   Decided:   April 29, 2011


Before DUNCAN and WYNN, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Duncan and Judge Berger joined.


ARGUED: John Gordon Humphrey, THE HUMPHREY LAW FIRM, Alexandria,
Virginia, for Appellant.    Mary Alice Rowan, COUNTY ATTORNEY’S
OFFICE, Prince William, Virginia, for Appellees.      ON BRIEF:
Angela L. Horan, County Attorney, Prince William, Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
WYNN, Circuit Judge:

       Plaintiff       Robert    Harrison        brought    this      42     U.S.C.    § 1983

action against various Prince William County, Virginia police

officers, alleging that his constitutional rights were violated

when he was arrested for cursing at an officer.                            Harrison argues

that       the   Virginia     statute   under       which       he    was    arrested      was

unconstitutional and therefore could not serve as the basis for

probable cause to arrest him.                But that statute has never before

been declared unconstitutional, and it is not so grossly and

flagrantly        unconstitutional       that       any     person          of    reasonable

prudence would be bound to see its flaws. 1                          We therefore reject

Harrison’s        contention     that   it       could    not    form       the   basis    for

probable cause and affirm the judgment of the district court.



                                             I.

       On    October     4,   2005   Harrison       was     returning         home    to   his

apartment        in   Woodbridge,     Virginia      after       work.         Harrison     was

riding in the front passenger seat of a car driven by his friend

Marquis Christopher.            As Harrison and Christopher approached the

apartment        complex,     they   observed      a     number      of     black    vehicles

blocking the road.            Christopher rolled down a window and asked a

woman leaning into the trunk of a car if they could pass.

       1
           Michigan v. DeFillippo, 443 U.S. 31, 38 (1979).


                                             3
      The    woman,       Officer        Jennifer    Evans,        turned    around       and

displayed     a    police     badge.        Defendant       Officer      John     Mora    was

returning to his car when he saw Evans speaking with the men in

the   car.        Evans     told    Mora    that    the     men    had     made    sexually

inappropriate        comments       to     her.      Mora    advised        Harrison      and

Christopher to leave and told them that it was inappropriate to

speak to a female officer that way.                         Mora testified that as

Harrison rolled up the window, Harrison looked back at Mora and

called him a bitch.

      Christopher then pulled into the parking lot in front of

Harrison’s     apartment.           At     this   point,     Mora    believed       he    had

probable     cause    to    cite     Harrison       for   violating        Virginia      Code

§ 18.2-388.          That     statute       provides      that      “[i]f    any     person

profanely curses or swears or is intoxicated in public . . . he

shall be deemed guilty of a Class 4 misdemeanor.”                                 Va. Code.

Ann. § 18.2-388 (2009).             Mora walked up to the passenger side of

the vehicle.

      The    accounts        of     what     happened       next    are     conflicting.

Harrison     testified       that    he    was    snatched    out     of    the    car   and

pushed up against the roof.                  Harrison asked what he was being

arrested for and was thrown to the ground by three officers.

Harrison testified that his head hit the pavement, and that Mora

ground his head into the pavement.                    Harrison said the officers

picked him up, handcuffed him, and sat him down on the curb.

                                              4
       Mora testified that he asked Harrison to step out of the

vehicle.      Harrison eventually opened the car door and stood up.

Mora said he told Harrison to place his hands on the roof of the

car.       When   Harrison        would   not    comply,   Mora   grabbed      one   of

Harrison’s arms and placed it behind his back.                    Harrison started

to struggle, and Mora took him to the ground.                      Another officer

helped get Harrison’s left arm from under him, and the officers

sat Harrison, handcuffed, on the curb.

       After arresting Harrison, Mora signed a criminal complaint

and affidavit summarizing the incident and requesting charges

for     violation      of    Virginia     Code     §§ 18.2-388     and   18.2-415. 2

Harrison was brought before a magistrate who examined Mora and

other      officers.        The   magistrate     signed    a   warrant   for   arrest

       2
           Virginia Code § 18.2-415 states that:

       A person is guilty of disorderly conduct if, with the
       intent to cause public inconvenience, annoyance or
       alarm, or recklessly creating a risk thereof, he:

       A. In any street, highway, public building, or while
       in or on a public conveyance, or public place engages
       in conduct having a direct tendency to cause acts of
       violence   by   the   person  or   persons at   whom,
       individually, such conduct is directed[.]

       . . . .

       However, the conduct prohibited under subdivision A, B
       or C of this section shall not be deemed to include
       the utterance or display of any words or to include
       conduct otherwise made punishable under this title.

Va. Code Ann. § 18.2-415 (2009).



                                            5
charging Harrison with violation of Virginia Code § 18.2-415.

The   magistrate      also    signed     a       summons    requiring      Harrison     to

answer charges under Virginia Code § 18.2-416. 3

      On July 1, 2008, Harrison filed a complaint against the

Prince     William    County     Police      Department       and    various     police

officers,      including      Mora,    in    their      individual        and   official

capacities.       Harrison      sought       injunctive       and   monetary      relief

under     42    U.S.C.       § 1983    for        alleged     violations        of    his

constitutional        protections       against         illegal      seizure,        false

arrest, excessive force, denial of medical care, conspiracy to

violate civil rights, and violations of equal protection.                              The

complaint      also   sought     relief          for   violations     of    state     law

protections      against       assault       and       battery      and     intentional

infliction of emotional distress.

      The case was tried before a jury on September 8, 2009.                           At

the close of the evidence, Harrison moved for judgment as a

matter of law on the claims against Mora related to illegal

      3
          Virginia Code § 18.2-416 provides that:

      If any person shall, in the presence or hearing of
      another, curse or abuse such other person, or use any
      violent abusive language to such person concerning
      himself or any of his relations, or otherwise use such
      language, under circumstances reasonably calculated to
      provoke a breach of the peace, he shall be guilty of a
      Class 3 misdemeanor.

Va. Code Ann. § 18.2-416 (2009).



                                             6
seizure,    unlawful        arrest,     excessive         force,     and     assault     and

battery.    The district court denied Harrison’s motion.

      Harrison submitted proposed jury instructions on the issue

of unlawful seizure.            These were included in the instructions

that the district court read to the jury.                          The district court

also separately instructed the jury using the language of the

Virginia statutes.           Harrison objected to submitting the language

of the statutes, particularly Virginia Code § 18.2-388, to the

jury.    During deliberations, the jury requested a copy of the

curse      and   abuse         statute.             Harrison         again       objected.

Nevertheless, the district court sent a copy of the statute to

the   jury.      The    jury     decided          all    claims    in    favor    of     the

Defendants, and Harrison appealed.



                                          II.

      Harrison   first        argues    that       the    district      court    erred    in

denying his motion for judgment as a matter of law.                               Harrison

argues that Virginia Code § 18.2-388 is facially invalid and

therefore Mora lacked probable cause to arrest him.                              Harrison

contends that he said only “a single curse word to a trained

police   officer”      and    that     arresting         someone   on    that    basis    is

unconstitutional.       Appellant’s Opening Brief at 8.

      Judgment   as     a     matter     of       law    is   appropriate       when     the

district court finds that a reasonable jury would not have a

                                              7
legally sufficient evidentiary basis to find for the nonmoving

party.    Fed. R. Civ. P. 50(a).               “We review de novo the grant or

denial of a motion for judgment as a matter of law.”                        Anderson

v. Russell, 247 F.3d 125, 129 (4th Cir. 2001).



                                          A.

     The Fourth Amendment guarantees “[t]he right of the people

to be secure . . . against unreasonable searches and seizures.”

U.S. Const. amend IV.             It permits officers to make an arrest,

however, when the officers have probable cause to believe that a

person has committed a crime in their presence.                          Virginia v.

Moore, 553 U.S. 164, 178 (2008).                   Virginia law is consistent

with federal law in this regard.                 The Supreme Court of Virginia

recognizes    that     “probable        cause    exists    when    the    facts    and

circumstances within the officer’s knowledge, and of which he

has reasonably trustworthy information, alone are sufficient to

warrant   a   person    of    reasonable         caution    to    believe   that    an

offense    has   been        or    is    being      committed.”          Taylor     v.

Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (Va. 1981)

(citing Draper v. United States, 358 U.S. 307, 313 (1959)).

     The First Amendment states that “Congress shall make no law

. . . abridging the freedom of speech.”                    U.S. Const. amend. I.

“[T]he First Amendment protects a significant amount of verbal

criticism and challenge directed at police officers.”                       City of

                                           8
Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987).                       In Hill, the

Supreme    Court    invalidated       a   city    ordinance      that    prohibited

speech     that    in   any    manner     interrupted      an    officer    in    the

performance of his duties.            Id. at 462; see also Lewis v. City

of   New   Orleans,      415   U.S.    130,   134   (1974)       (invalidating     an

ordinance that criminalized cursing at an officer).                     The Supreme

Court has recognized, however, that states may constitutionally

prohibit    fighting      words,      i.e.,   those      which    by    their    very

utterance tend to incite an immediate breach of the peace.                        See

Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

      Harrison argues that the United States Constitution limits

the application of Virginia Code §§ 18.2-388 and 18.2-416 to

fighting words.         Harrison recognizes, however, that no court has

limited the application of Virginia Code § 18.2-388 to words

that have a tendency to incite an immediate breach of the peace. 4

Harrison contends, nonetheless, that “the fact that a court has

not specifically commented on Va. Code § 18.2-388’s application

to speech has no bearing on . . . an officer’s duty to follow

clearly    established     constitutional        law.”     Appellant’s      Opening

      4
       The Virginia Court of Appeals held unconstitutional a city
ordinance containing language that “parallels the language of
Code § 18.2-388.” Burgess v. City of Va. Beach, 9 Va. App. 163,
165, 385 S.E.2d 59, 60 (Va. App. 1989), overruled in part as
recognized by Marttila v. City of Lynchburg, 33 Va. App. 592,
600 n.5, 535 S.E.2d 693, 697 n.5 (Va. App. 2000). Burgess does
not, however, purport to invalidate Virginia Code § 18.2-388.


                                          9
Brief at 25.           Harrison concludes that he was entitled to a

judgment that he was arrested without probable cause.

        We are directed to no Fourth Circuit precedent addressing

the issue of whether an allegedly unconstitutional statute can

form a basis for probable cause.                     Our research has revealed

none. 5       The    Supreme    Court     has,   however,    addressed    this   very

issue. 6



                                            B.

        In Michigan v. DeFillippo, 443 U.S. 31 (1979), the Supreme

Court       held    that   an   officer    had    probable   cause   to    arrest   a

suspect for refusing to identify himself, notwithstanding that

the applicable ordinance was invalid and would be judicially

declared unconstitutional.              Id. at 37.       The Court explained that

at the time of the arrest, “there was no controlling precedent

that this ordinance was or was not constitutional, and hence the

conduct observed violated a presumptively valid ordinance.”                      Id.

A   prudent        officer,     the   Court      said,   “should   not    have   been




        5
       The closest case appears to be United States v. Fayall,
315 F. App’x 448, 449-50 (4th Cir. 2009), an unpublished opinion
involving a city ordinance.
        6
       We note that neither party cited this case, which is
crucial to this appeal’s resolution.


                                            10
required    to     anticipate          that    a   court   would     later       hold    the

ordinance unconstitutional.”                Id. at 38.

     “Police are charged to enforce laws until and unless they

are declared unconstitutional.”                    Id.   DeFillippo thus announced

that probable cause may exist even under an unconstitutional

statute, with one caveat.                   “The enactment of a law forecloses

speculation         by       enforcement            officers        concerning           its

constitutionality-with                the   possible     exception    of     a     law     so

grossly    and    flagrantly           unconstitutional      that     any    person       of

reasonable prudence would be bound to see its flaws.”                            Id.     This

exception has been employed sparingly.                      See United States v.

Cardenas-Alatorre, 485 F.3d 1111, 1117 n.15 (10th Cir. 2007)

(“Only in the rarest of instances, as reflected in the standard

set forth in DeFillippo, is an officer expected to question the

will of the majority embodied in a duly, and democratically,

enacted    law;    .     .   .    .”).        As   the   Supreme    Court    explained,

“[s]ociety would be ill-served if its police officers took it

upon themselves to determine which laws are and which are not

constitutionally entitled to enforcement.”                     DeFillippo         443 U.S.

at 38; see also Illinois v. Krull, 480 U.S. 340, 349-50 (1987)

(“Unless    a     statute        is    clearly     unconstitutional,         an    officer

cannot be expected to question the judgment of the legislature

that passed the law.”).



                                              11
           The Sixth Circuit used the DeFillippo exception in Leonard

v. Robinson, 477 F.3d 347 (6th Cir. 2007).                        The plaintiff there

was arrested at a township board meeting for saying the phrase

“God       damn”    pursuant      to   state    statutes     prohibiting        disorderly

conduct       and    obscenity.          Id.    352.        The   plaintiff      sued     the

arresting officer for violating his Fourth Amendment rights and

First Amendment retaliation.                   Id.   On appeal, the Sixth Circuit

held that the First Amendment “preclude[d] a finding of probable

cause because the laws cited . . . are either facially invalid,

vague,       or    overbroad      when   applied       to    speech      (as    opposed    to

conduct) at a democratic assembly where the speaker is not out

of order.”          Id. at 356.        The Court rejected an argument based on

DeFillippo, stating “no reasonable police officer would believe

that any of the . . . Michigan statutes . . . are constitutional

as applied to Leonard’s political speech during a democratic

assembly.”          Id. at 359. 7

       The Sixth Circuit appears to be alone amongst the circuits

in     recognizing        any     restrictions         on   speech       that    meet     the

DeFillippo exception.               In Vives v. City of New York, 405 F.3d

115    (2nd       Cir.   2004),    the   Second      Circuit      held    the   defendants

could rely on the presumptive validity of a statute prohibiting


       7
       Notably, Judge Sutton dissented, believing that DeFillippo
compelled a contrary result. Leonard, 477 F.3d at 365.


                                               12
aggravated       harassment         when     they      arrested      the       plaintiff       for

sending    religious         literature        to      a   candidate          for     lieutenant

governor.      Id. at 118.          In Cooper v. Dillon, 403 F.3d 1208 (11th

Cir. 2005), the Eleventh Circuit rejected the argument that a

statute     making      it     illegal       to     publish        information           obtained

pursuant    to    an    internal       investigation            of      a    law      enforcement

officer was so grossly and flagrantly unconstitutional that the

arresting    officer         should    have       known    it   was         unconstitutional.

Id. at 1220.           And in Lederman v. United States, 291 F.3d 36

(D.C.   Cir.     2002),       the     D.C.    Circuit       held        that      a    regulation

banning leafleting on a public sidewalk was not so grossly and

flagrantly unconstitutional that officers should have recognized

its flaws.       Id. at 47.          These cases establish that the possible

exception recognized in DeFillippo does not apply merely because

a person alleges a violation of his First Amendment rights.



                                              C.

     Under DeFillippo, Mora had probable cause to believe that

Harrison was breaking a presumptively valid law, unless the law

was “so grossly and flagrantly unconstitutional that any person

of   reasonable        prudence       would       be    bound      to       see    its    flaws.”

DeFillippo,      443    U.S.    at     38.         Although      not        framed       as   such,

Harrison’s     argument        amounts       to    the     claim     that         Virginia    Code

§ 18.2-388 meets this exception.                    Harrison relies on Leonard for

                                              13
the   proposition      that     officers    “can       only    apply      a   statute    in

accordance      with        clearly      established           constitutional           law

regardless of the text of the statute.”                        Appellant’s Opening

Brief   at   47.      “No   one,”      Harrison      asserts,       “could     reasonably

believe      that     Va.    Code      § 18.2-388       should       be       applied    as

written . . . .”        Id. at 26.

      Harrison’s reliance on Leonard is misplaced.                              The Sixth

Circuit there explained that in light of the “prominent position

that free political speech has in our jurisprudence and in our

society, it cannot be seriously contended that any reasonable

peace officer, or citizen, for that matter, would believe that

mild profanity while peacefully advocating a political position

could constitute a criminal act.”                     Leonard, 477 F.3d at 361.

Unlike the plaintiff in Leonard, Harrison was not arrested for

voicing a mild profanity while advocating a political position

at a democratic assembly.               Mora’s decision to arrest Harrison

therefore cannot be similarly evaluated.

      Moreover,      Leonard     does    not    support       the   proposition         that

officers may disregard the text of a statute in preference for a

constitutional       interpretation.            On    the   contrary,         courts    have

consistently recognized that police officers may rely on the

presumptive validity of statutes.                    See, e.g., Cooper, 403 F.3d

at 1220 (noting that the officer “was entitled to assume that

the   current       [statute]    was    free     of     constitutional          flaws.”);

                                           14
Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 105 (2d

Cir. 2003) (“Officials charged with enforcing a statute on the

books . . . are generally entitled to rely on the presumption

that         all   relevant   legal   and   constitutional            issues   have   been

considered and that the statute is valid.”); Grossman v. City of

Portland, 33 F.3d 1200, 1209 (9th Cir. 1994) (“[P]olice officers

on the street are ordinarily entitled to rely on the assumption

that . . . the ordinance is a valid and constitutional exercise

of   authority.”).            Thus,   Leonard         does    not   support    Harrison’s

claim that Mora’s reliance on a presumptively valid statute was

unreasonable.

         Although Harrison makes a compelling argument that Virginia

Code § 18.2-388 is unconstitutional, he fails to show that it is

so grossly and flagrantly unconstitutional that Mora should have

anticipated          its   invalidation.         We    hold    that    Virginia   Code §

18.2-388 does not satisfy the possible exception identified by

DeFillippo.          443 U.S. at 38.        Mora therefore had probable cause

to believe that Harrison violated a presumptively valid state

law. 8




         8
       Because we hold that Mora could have had probable cause
under Virginia Code § 18.2-388, we need not determine whether he
also could have had probable cause under Virginia Code § 18.2-
415 or § 18.2-416.


                                            15
                                            D.

       This determination disposes of all Harrison’s claims for

judgment as a matter of law.                With regard to Harrison’s illegal

seizure     claim,    we    have     recognized        that     police    may    arrest    an

offender even for a “very minor criminal offense” so long as the

seizure is supported by probable cause.                         Figg v. Schroeder, 312

F.3d 625, 636 (4th Cir. 2002).               With regard to Harrison’s false

arrest claim, “there is no cause of action for ‘false arrest’

under section 1983 unless the arresting officer lacked probable

cause.”      Street    v.     Surdyka,      492    F.2d       368,     372-73    (4th   Cir.

1974).

       Harrison concedes that “[i]f the Court finds probable cause

or    reasonable     suspicion       existed,      .    .   .    his    appeal    regarding

excessive     force        fails.”       Appellant’s            Reply     Brief    at     25.

Finally, Harrison was not entitled to judgment as a matter of

law    on   his   state     law    claims    for       assault     and    battery.        See

DeChene v. Smallwood, 226 Va. 475, 481, 311 S.E.2d 749, 752 (Va.

1984) (officer could not be subjected to civil liability for

false imprisonment or assault and battery when the officer acted

in good faith and with probable cause).                            Thus, the district

court did not err in denying Harrison’s motion for judgment as a

matter of law.




                                            16
                                            III.

     Harrison       next       argues      that    the       district      court       erred   in

failing     to    instruct           the    jury        as    to    the     constitutional

limitations on the application of state law.

     We    review       jury    instructions            to   determine      whether          they,

construed    as     a    whole,       properly          informed     the     jury       of     the

controlling legal principles without misleading or confusing the

jury.     Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775 (4th

Cir. 1997).        “A judgment will be reversed for error in jury

instructions      only     if    the       error       is    determined      to    have       been

prejudicial, based on a review of the record as a whole.”                                      Id.

(citation and quotation marks omitted).

     Here, Harrison argues that the jury was misled because it

received instructions that permitted it to find probable cause

to arrest on the basis of Virginia Code § 18.2-388 alone, which

by its terms allows for an unconstitutional arrest.                                    Harrison

recognizes       that    the     district          court      submitted      his       proposed

instructions      that     reflected         the       statutes     “as     they       had   been

limited by court precedent.”                  Appellant’s Opening Brief at 61.

Harrison contends, however, that by submitting the statutes to

the jury separately, the district court “allowed the jury to

find against [him] on an unconstitutional basis.”                           Id.

     Harrison      points       to    no    case       finding     error    in     a   district

court’s    submitting      statutes         to     a    jury.      Insofar        as   Harrison

                                             17
argues that the district court allowed the jury to find probable

cause to arrest under an unconstitutional statute, he has not—

for the reasons stated above—shown that the district court’s

instruction      was    erroneous.       See   DeFillippo,       443   U.S.   at    37.

Indeed,    the     inclusion       of   Harrison’s      proposed       instructions,

potentially limiting the scope of probable cause, could only

have benefited him.          Harrison consequently fails to show that

the district court erred in its instructions to the jury, which

adequately stated the controlling law.                 See Sturges v. Matthews,

53 F.3d 659, 662 (4th Cir. 1995) (refusing to reverse alleged

error in instructions when they “contained an adequate statement

of the law to guide the jury’s determination”).



                                         IV.

     In sum, we hold that Virginia Code § 18.2-388 is not “so

grossly    and     flagrantly      unconstitutional       that     any    person    of

reasonable       prudence     would     be     bound    to   see       its    flaws.”

DeFillippo, 443 U.S. at 38.             The statute could therefore provide

a basis for Officer Mora to have probable cause to believe that

Harrison     was       violating    a    presumptively       valid       state     law.

Harrison was thus not entitled to judgment as a matter of law.

For the same reason, the district court did not err in failing

to instruct the jury on the constitutional limitations of the



                                         18
application of state law.   The judgment of the district court is

accordingly

                                                        AFFIRMED.




                                19
