                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-2162


BRENDA BRYANT,

                 Plaintiff – Appellee,

           v.

CITY OF CAYCE; M. L. BRAKEFIELD, South Carolina Cayce
Police Officer, individually and as agent and employee of
the City of Cayce,

                 Defendants – Appellants,

           and

W. E. ACKERMAN; OFFICER POPENHAGEN; MASTERS ECONOMY INN,
INCORPORATED; ROGER ARMSTRONG, Manager,

                 Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:06-cv-00333-MJP)


Argued:   March 25, 2009                     Decided:   May 8, 2009


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Judge Motz and Judge Traxler joined.


ARGUED: Andrew Lindemann, DAVIDSON & LINDEMANN, PA, Columbia,
South Carolina, for Appellants. David C. Gibbs, III, GIBBS LAW
FIRM, PA, Seminole, Florida, for Appellee. ON BRIEF: William H.
Davidson, Matthew B. Rosbrugh, DAVIDSON & LINDEMANN, PA,
Columbia, South Carolina, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      As    is     relevant    here,     Brenda         Bryant    brought   this     action

under 42 U.S.C. § 1983 against Officer M.L. Brakefield – an

officer with the Department of Public Safety of the City of

Cayce, South Carolina.              Among other things, Bryant alleged that

her   rights       under   the      Fourth     and      Fourteenth     Amendments        were

violated when Brakefield arrested her for trespassing.                                   After

Bryant moved for summary judgment, the district court ruled that

Brakefield was not entitled to qualified immunity.                             Brakefield

now appeals. 1       We vacate the district court’s denial of summary

judgment      to     Brakefield        and     remand      this    case     for     further

proceedings.

                                               I

      “In    reviewing        the     denial       of   summary    judgment       based    on

qualified        immunity,     we     accept       as    true    the   facts      that    the

district court concluded may be reasonably inferred from the

record      when     viewed      in    the     light       most    favorable       to     the

plaintiff.”         Waterman v. Batton, 393 F.3d 471, 473 (4th Cir.

2005).      “To the extent that the district court has not fully set


      1
       The City of Cayce, which was a defendant below, also
appealed the district court’s denial of summary judgment.
However, the only issue the appellants present for our review is
whether the district court erred by denying Brakefield summary
judgment.  Therefore, this is the only issue we address in our
opinion.



                                               3
forth the facts on which its decision is based, we assume the

facts   that   may    reasonably       be    inferred   from     the   record      when

viewed in the light most favorable to the plaintiff.”                       Id.    With

these principles in mind, we will summarize the facts which are

pertinent to this appeal.

     On April 28, 2005, Bryant checked into the Masters Economy

Inn in Cayce.        Her husband registered for the room in his name,

reserved   the   room    for     one   night,    and    paid    for    it   in    cash.

However,   Bryant     signed     the    hotel’s    Guest       Registration       form,

which stated that the hotel’s check-out time was 11:00 a.m. the

following day and that guests staying past 11:00 a.m. would be

charged for an additional day.

     Sometime     the     next     morning       before    11:00       a.m.       Bryant

telephoned the hotel’s front desk and asked to extend her stay

another day.     The person Bryant spoke with agreed she could stay

another day and that her husband could stop by later that day to

pay for the additional day.                 At some point around 11:00 a.m.,

the hotel’s manager, Robert Armstrong, came to Bryant’s room and

advised her that she would have to leave the hotel because no

arrangement had been made for her to continue to stay there.

Armstrong then called the Cayce Department of Public Safety.

     Brakefield responded to Armstrong’s call.                    When he arrived

at the Masters Economy Inn, Armstrong informed him that he had

directed Bryant to vacate the premises.                 Brakefield then went to

                                            4
Bryant’s room and informed her that she was not a registered

guest and that she needed to leave the premises.                  When Bryant

left the room, she was presented with a document titled “Cayce

Department    of   Public   Safety    Trespass      Warning”   (the   “Trespass

Warning”).

     The   Trespass    Warning,      which   both    Brakefield   and   Bryant

signed, stated that she was warned to depart the Masters Economy

Inn and not to return.       Bryant was also warned not to enter onto

the property of any other hotel or motel in Cayce. 2                  Moreover,

Brakefield stated in an affidavit that he believed Bryant was

prohibited from trespassing at any hotel or motel within Cayce.

J.A. 121. 3   However, after signing the Trespass Warning, Bryant



     2
       In a section of the Trespass Warning titled “Additional
Information,” the following handwritten notation appears: “All
Motels/Hotels in Cayce.” J.A. 174. Bryant later testified that
she understood what the Trespass Warning meant and could
comprehend the phrase “[a]ll motels/hotels in Cayce.” J.A. 321.
     3
        A number of motels/hotels in Cayce entered into a
“Trespassing Agreement” with the Cayce Department of Public
Safety and with each other.     Under the Trespassing Agreement,
all of the signatories agreed “to uphold trespass notices given
to individuals by the City of Cayce Department of Public Safety
on this and other lodging properties in the City . . . . These
persons shall also not be allowed to utilize or be physically
on, around or in any facilities of this property. I furthermore
request that any persons placed on trespass notice on this or
any other lodging business or property in the City of Cayce, and
who are found on this property, be prosecuted for trespassing
and any other criminal offenses applicable.”        J.A. 163-64.
Representatives of both the Masters Economy Inn and the Knights
Inn in Cayce signed the Trespassing Agreement.



                                       5
walked away from the Masters Economy Inn and onto the premises

of the Knights Inn – another hotel in Cayce which was about a

quarter of a mile away.         After walking onto the Knights Inn’s

property,    Bryant   went   inside     the      hotel’s   lobby   and    received

permission to use the telephone.              Around that time, Brakefield

arrived at the Knights Inn.            He intended to inform the hotel’s

management that Bryant had been given a Trespass Warning.                         As

Brakefield    entered   the    lobby,       he    encountered      Bryant.        He

informed her that she was trespassing on Knights Inn’s property

and arrested her for trespass after notice in violation of S.C.

Code Ann. § 16-11-620. 4

     Cayce    prosecuted      Bryant     in      municipal   court       for    this

trespass.     At the close of Cayce’s case, Bryant moved for a

directed verdict, which the judge denied.              However, a jury found

Bryant not guilty.

     Bryant    then   commenced   this        action   seeking,     inter      alia,

monetary damages under § 1983 because her constitutional rights

     4
       Section 16-11-620 provides: “Any person who, without legal
cause or good excuse, enters into the dwelling house, place of
business, or on the premises of another person after having been
warned not to do so or any person who, having entered into the
dwelling house, place of business, or on the premises of another
person without having been warned fails and refuses, without
good cause or good excuse, to leave immediately upon being
ordered or requested to do so by the person in possession or his
agent or representative shall, on conviction, be fined not more
than two hundred dollars or be imprisoned for not more than
thirty days.”



                                        6
were     allegedly        violated     when      Brakefield       arrested         her.

Brakefield        moved   for   summary     judgment     based   in   part    on     the

defense      of    qualified    immunity.      In   an    oral   ruling     from     the

bench, the district court denied Brakefield summary judgment on

his qualified immunity defense.             This appeal followed.



                                          II

                                          A.

       The    doctrine     of   qualified      immunity     protects       government

officials performing discretionary functions “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 known.”                Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).            “The concern of the immunity inquiry is

to acknowledge that reasonable mistakes can be made as to the

legal constraints on particular police conduct.”                       Saucier v.

Katz, 533 U.S. 194, 205 (2001).                 Qualified immunity protects

“all but the plainly incompetent or those who knowingly violate

the law.”         Malley v. Briggs, 475 U.S. 335, 341 (1986).

       When government officials properly assert the defense of

qualified immunity, they are entitled to summary judgment if

either (1) the facts the plaintiff has alleged or shown do not

make out a violation of a constitutional right – a question on

which the plaintiff bears the burden of proof; or (2) the right

                                          7
at   issue   was   not    “clearly    established”           at    the    time     of   the

defendant’s     alleged      misconduct         –    a    question       on    which    the

defendant bears the burden of proof.                     Saucier, 533 U.S. at 201;

Henry v. Purnell, 501 F.3d 374, 377-78 (4th Cir. 2007).                           We need

not address these questions in any particular order, Pearson v.

Callahan, 129 S.Ct. 808, 818 (2009), and our inquiry ends if we

resolve either question against the plaintiff, see Henry, 501

F.3d at 377.

                                           B.

       At the outset of our analysis, we address Bryant’s argument

that we lack jurisdiction over this appeal.                       In general, we have

jurisdiction to review “final decisions” of district courts, 28

U.S.C. § 1291, and “a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of

law, is an appealable ‘final decision’ within the meaning of 28

U.S.C. § 1291 notwithstanding the absence of a final judgment,”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).                           However, “[i]f

summary    judgment    was   denied    as       to   a    particular      claim     solely

because there is a genuine issue of material fact, that claim is

not immediately appealable and we lack jurisdiction to consider

it.”    Iko v. Shreve, 535 F.3d 225, 235 (4th Cir. 2008).

       Bryant   contends     that    we     lack         jurisdiction         because   the

district     court’s   decision      did    not      turn    on    an    issue    of    law.

Instead,     she   argues,     the    district           court     denied      Brakefield

                                           8
qualified     immunity          because    she    raised     a    genuine   issue    of

material fact.            We disagree with Bryant’s characterization of

the district court’s decision.                   In the relevant portion of its

ruling, the district court stated:

       I’m of the view that assuming the truth of the
       plaintiff’s allegations, that is still a matter that
       would have to be proven at trial, that in arresting
       the plaintiff the officer acted in violation of the
       constitution.   Because the evidence does not accept
       that the plaintiff was acting in violation of any law
       when she was placed under arrest. And, thus, assuming
       the truth of the plaintiff’s allegations, her arrest
       would have been in violation of the due process clause
       of the Fourteenth Amendment.

J.A. 638-39.        As this language makes clear, the district court

did not deny Brakefield qualified immunity because the parties

disputed a genuine issue of material fact.                       Rather, the district

court viewed the facts in the light most favorable to Bryant and

then decided as matter of law that her constitutional rights

were   violated.           Accordingly,      we    have    jurisdiction     over    the

district court’s ruling.

                                            C.

       We   now    turn    to    the   merits     of   Brakefield’s     arguments    on

appeal.      He     contends      that    the     district   court     erred   by   not

granting     him    qualified          immunity    with    respect     to   three    of

Bryant’s claims – her Fourth Amendment, Fourteenth Amendment,

and related conspiracy claims.               As set forth below, we hold that




                                            9
the   district     court      erred       by    not    granting      Brakefield    summary

judgment on these claims.

                                                1.

      In her complaint, Bryant alleged that Brakefield violated

her Fourth Amendment rights by arresting her without probable

cause.   Under Supreme Court precedent, “a warrantless arrest by

a law officer is reasonable under the Fourth Amendment where

there is probable cause to believe that a criminal offense has

been or is being committed.”                   Devenpeck v. Alford, 543 U.S. 146,

152   (2004).           Probable          cause       exists    if    the    “facts      and

circumstances          within       the        officer’s       knowledge      . . .      are

sufficient        to     warrant       a       prudent     person       . . .     in     the

circumstances          shown,    [to       conclude]       that      the    suspect      has

committed, is committing, or is about to commit an offense.”

Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).                             “The validity

of the arrest does not depend on whether the suspect actually

committed     a   crime;      the    mere       fact   that    the    suspect     is   later

acquitted of the offense for which he is arrested is irrelevant

to the validity of the arrest.”                   Id. at 36.

      Based   on       the   facts    known       to   Brakefield      at   the   time    he

arrested Bryant, we conclude that a reasonable officer would

have had probable cause to believe that she had committed a

criminal offense.            As indicated above, South Carolina law makes

it unlawful for a person without legal cause or good excuse to

                                                10
enter a place of business after having been warned not to do so.

See S.C. Code Ann. § 16-11-620.                    At the time of her arrest, both

Brakefield    and    Bryant      knew     that      she     had    been   warned    not    to

return to the Masters Economy Inn.                       Moreover, Bryant was warned

not to enter the property of any other hotel or motel in Cayce,

and Brakefield stated that he knew Bryant was prohibited from

entering    the    property      of     any    hotel       or     motel   within    Cayce. 5

Minutes after she signed the Trespass Warning in his presence,

Brakefield saw Bryant on the premises of the Knights Inn in

Cayce.     Her presence at the Knights Inn gave Brakefield probable

cause to believe that she had committed a crime – namely, a

violation     of    S.C.    Code      Ann.     §        16-11-620.        Therefore,      the

district court erred by denying Brakefield summary judgment on

Bryant’s Fourth Amendment claim.

                                              2.

      Bryant’s     complaint       also    alleged         that    Brakefield      violated

her Fourteenth Amendment rights when he arrested her.                              However,

the   facts   Bryant       has   alleged           or    shown    do   not   make    out    a

violation by Brakefield of any of her rights recognized under

      5
       Although Bryant contends that the Trespassing Agreement is
unlawful, we find that this argument does not negate the
presence of probable cause because, at a minimum, a reasonable
officer in Brakefield’s position would not have known that the
Trespassing Agreement was unlawful at the time of the arrest.
See Michigan, 443 U.S. at 38 (“Police are charged to enforce
laws until and unless they are declared unconstitutional.”).



                                              11
the Fourteenth Amendment.         Thus, the district court erred by not

granting     Brakefield    summary      judgment    on    Bryant’s       Fourteenth

Amendment claims.

                                        3.

     In addition to her Fourth and Fourteenth Amendment claims,

Bryant’s complaint also alleged that Brakefield entered into an

unlawful conspiracy to deprive her of her federal constitutional

rights.       “To    establish    a     civil   conspiracy        under     § 1983,

. . . [the      plaintiff]       must     present        evidence        that   the

[defendants] . . . acted jointly in concert and that some overt

act was done in furtherance of the conspiracy which resulted in

[the plaintiff’s] . . . deprivation of a constitutional right.”

Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996).

Here, the facts do not establish that Brakefield deprived Bryant

of any constitutional rights.             Consequently, we conclude that

Brakefield     is    entitled     to     summary       judgment     on     Bryant’s

conspiracy claim.



                                        III

     Based    on    the   foregoing,    we    vacate     the   district     court’s

denial of summary judgment to Brakefield and remand for further

proceedings consistent with this opinion.

                                                          VACATED AND REMANDED



                                        12
