UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EILEEN MCAFEE,
Plaintiff-Appellee,

v.

SELINA DEALE, in her individual
capacity,
Defendant-Appellant,

and

ANTHONY ROMANELLO, in his
individual capacity,
                                    No. 99-2361
Defendant,

and

JERRY A. OLIVER, Chief of Police
for the City of Richmond Police
Department; L. CHESTER BRAZZELL,
Director of the Department of
Human Resources for the City of
Richmond; CALVIN JAMISON, City
Manager for the City of Richmond,
Parties in Interest.
EILEEN MCAFEE,
Plaintiff-Appellee,

v.

ANTHONY ROMANELLO, in his
individual capacity,
Defendant-Appellant,

and

SELINA DEALE, in her individual
capacity,
                                                                  No. 99-2370
Defendant,

and

JERRY A. OLIVER, Chief of Police
for the City of Richmond Police
Department; L. CHESTER BRAZZELL,
Director of the Department of
Human Resources for the City of
Richmond; CALVIN JAMISON, City
Manager for the City of Richmond,
Parties in Interest.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-98-295)

Argued: June 7, 2000

Decided: August 24, 2000

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
Robert R. BEEZER, Senior Circuit Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.

_________________________________________________________________

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Vacated and remanded by unpublished per curiam opinion. Senior
Judge Beezer wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Adrian Gibney, Jr., SHUFORD, RUBIN & GIB-
NEY, P.C., Richmond, Virginia, for Appellants. Gerald Thomas
Zerkin, GERALD T. ZERKIN & ASSOCIATES, Richmond, Vir-
ginia, for Appellee. ON BRIEF: Christina E. Kearney, SHUFORD,
RUBIN & GIBNEY, P.C., Richmond, Virginia, for Appellant Deale;
William Gray Broaddus, Thomas E. Spahn, Tara N. Mora,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond,
Virginia, for Appellant Romanello. Melanie H. Moore, GERALD T.
ZERKIN & ASSOCIATES, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

This case presents the question of whether Selina Deale and
Anthony Romanello, public officials connected with the City of Rich-
mond (Virginia) Animal Shelter, are entitled to qualified immunity in
this action filed by Eileen McAfee, a member of the"Save Our Shel-
ter" organization, who sued the officials as a result of several confron-
tations that she had at the Shelter. In her complaint, McAfee alleged
that she had been banned from the Richmond Animal Shelter without
legal justification but in retaliation for her filing a state defamation
suit against the officials and for criticizing the Shelter, in violation of
her First Amendment rights. She also alleges that Deale and Roma-
nello discriminated against her for exercising her First Amendment
rights, in violation of the Equal Protection Clause of the Fourteenth
Amendment. Deale and Romanello assert that their actions in exclud-

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ing McAfee from the Shelter on three separate occasions for being
disruptive at the shelter were justified and that they violated no
clearly established constitutional right. The district court denied the
officials' motion for summary judgment based on qualified immunity
because it found that "there are genuine issues as to material fact."

While the details of the incidents involved in this case may be
somewhat disputed, the parties do not dispute the essential facts mate-
rial to whether Deale and Romanello violated a clearly established
constitutional right of which a reasonable person in their position
would have known. See Wilson v. Layne, 526 U.S. 603, 614 (1999);
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, we
vacate the district court's orders denying Deale and Romanello quali-
fied immunity and remand with instructions to enter judgment in
favor of the officials.

I

Eileen McAfee was a member of Save Our Shelter ("SOS"), an
organization formed in response to negative publicity about condi-
tions at the City of Richmond Animal Shelter (the"Shelter"). The
mission of SOS was to monitor conditions at the Shelter, bring prob-
lems at the Shelter to the attention of city officials and the public, and
facilitate the adoption of animals from the Shelter. Selina Deale was
the Superintendent of Animal Control in charge of the Shelter, and
Anthony Romanello, the Deputy Director of the Richmond Health
Department, was Deale's supervisor.

McAfee was removed from the Shelter on three occasions in 1998,
as a result of confrontations between her and the Richmond Animal
Shelter officials. She was first removed from the Shelter on January
15, 1998, when she interfered with Deale's discussions with a patron,
accusing Deale of being a liar. On this date a man came into the Shel-
ter looking for his lost dog, and Deale told the man that the only dog
in the isolation and euthanasia rooms was a beagle. McAfee inter-
vened in the conversation, calling out to Deale in the presence of the
patron, "Is that true that the only dog in there is a beagle? You know,
you've lied before." Deale ordered McAfee out of the Shelter.

Although McAfee returned to the Shelter on subsequent occasions,
she was again removed from the Shelter on March 10, 1998, for being

                     4
rude and disruptive. When McAfee's counsel contacted the city attor-
ney's office about whether the ban was permanent, the city attorney
advised McAfee's counsel that she had not been banned permanently
but could return as long as she complied with the Shelter's rules.
McAfee did return to the Shelter again on March 31 and April 11.

But on April 14, 1998, McAfee was again asked to leave the Shel-
ter when she interfered with the Shelter's business. When a patron
dropped off an abandoned animal to the Shelter, one of McAfee's col-
leagues at SOS told the patron not to leave the dog because the Rich-
mond Animal Shelter employees would kill it. When the Shelter
officials asked McAfee's colleague to leave, McAfee began cross
examining a security guard in a loud and disruptive voice. The secur-
ity guard then told McAfee, "You have to leave." Again, the ban was
not permanent, and representatives of SOS have continued visiting the
Shelter.

McAfee sued Deale and Romanello for interfering with McAfee's
First Amendment rights. In part, McAfee's complaint was based on
her allegation that she had been banned from the Shelter because she
filed a defamation suit against Shelter officials in state court in Febru-
ary 1998. In that action, McAfee alleged that Deale and Romanello
had defamed McAfee by describing McAfee to others as a racist and
a dishonest person. This allegation was based on statements made in
two internal memoranda sent by Deale to Romanello that Romanello
later distributed to city officials, Shelter workers, and a reporter at the
local newspaper. Specifically, the memoranda recounted that (1) in
1997, McAfee had made an allegedly racist comment to another
member of the public while at the Richmond Animal Shelter, and (2)
McAfee had removed a drain grate from the floor of the Shelter in
order to photograph it as having been left open and thereby to depict
a condition hazardous to the safety of the animals. McAfee alleged in
the state defamation suit that Deale and Romanello had written and
circulated the memorandum for the purpose of "discrediting and
destroying" McAfee's reputation and that McAfee had suffered "hu-
miliation and other significant emotional injury" as a result. During
discovery in that action, however, McAfee admitted that she had
indeed removed the grate from the floor drain in order to photograph
it as being open, and she also conceded that Deale believed her state-
ments about McAfee's "racial intolerance" to be true. Consequently,

                     5
McAfee dismissed her defamation suit pursuant to Virginia's nonsuit
statute and did not refile it.

In this action, McAfee alleges that Deale and Romanello's exclu-
sion of her from the Shelter on March 10 and April 14 was in retalia-
tion for her filing the state defamation action. She also contends that
she was excluded because she generally criticized and monitored the
Shelter. She does not, however, point to any evidence suggesting a
causal link between these activities and her exclusion from the Shel-
ter, nor does she identify any circumstance in which her right to speak
out against or criticize the Shelter was interfered with.

II

In determining whether public officials enjoy qualified immunity,
we must "first determine whether the plaintiff has alleged the depriva-
tion of an actual constitutional right at all, and if so, proceed to deter-
mine whether that right was clearly established at the time of the
alleged violation." Wilson, 526 U.S. at 609 (quoting Conn v. Gabbert,
526 U.S. 286, 290 (1999)). The Court in Wilson went on to explain
that the constitutional right is clearly established for purposes of qual-
ified immunity when the "contours of the right[are] sufficiently clear
that a reasonable official would understand that what he is doing vio-
lates that right." Id. at 615. The unlawfulness of the official's action
must be apparent to him. Id. And to reduce this objective inquiry to
"the appropriate level of specificity" for deciding this case, we must
determine whether a reasonable Shelter official"could have believed"
that his conduct in excluding McAfee from the Shelter "was lawful,
in light of clearly established law and the information the [officials]
possessed." Id.

In the context of the information known to Deale and Romanello,
we believe that it was not unlawful for them to have ushered McAfee
from the Shelter on the three occasions when they were confronted
with what they perceived was rude and disruptive conduct by
McAfee. See Lovern v. Edwards, 190 F.3d 648 (4th Cir. 1999) (hold-
ing that a parent's First Amendment rights were not violated when he
was excluded from public school property after continuing a pattern
of verbal abuse and threatening behavior toward school officials).

                     6
McAfee argues that her exclusion from the Shelter was in retalia-
tion for her filing the state court defamation action. There is, however,
no evidence in the record -- which was fully developed in connection
with the summary judgment motions -- to support that claim. Indeed,
the first incident when McAfee was banned from the Shelter preceded
her filing of suit in state court. Moreover, there is no suggestion that
McAfee's right to file her defamation suit or to prosecute it was in
any way interfered with.

Likewise, in connection with McAfee's assertion that her exclusion
from the Shelter was based on her criticisms of the shelter, she has
provided no evidence suggesting a causal link between her exclusion
from the Shelter and any statement, comment, or speech that she
made. And again she has not alleged that she was denied the right to
make such criticisms.

In short, we conclude that reasonable public officials, in the posi-
tions of Deale and Romanello, would not believe that they were vio-
lating McAfee's constitutional rights when they excluded her from
the Shelter in response to what they perceived was her abusive con-
duct on three separate occasions. Indeed, such conduct violated the
Shelter's published regulations, which included:"The public is
expected to refrain from insolent, profane, or derogatory language and
shall be courteous and civil in their dealings with the staff."

Accordingly, we vacate the district court's orders denying Deale
and Romanello qualified immunity and remand the case with instruc-
tions that judgment be entered in favor of these officials on the basis
of qualified immunity.

IT IS SO ORDERED

BEEZER, Senior Circuit Judge, dissenting:

I respectfully dissent.

In this case, as in so many others, the parties view the facts quite
differently. A court is not permitted at the summary judgment stage
to determine which version of the facts is more credible. The court's

                     7
opinion, however, does just that and in so doing, fails to recognize
that the record presents genuine issues of material fact.

In each of the three instances in which McAfee was removed from
the animal shelter, the court's opinion recounts the facts from Deale
and Romanello's perspective. Thus, the court's opinion is able to
assert that McAfee was excluded in response to her"rude and disrup-
tive" and "abusive" conduct. Only then can the court's opinion con-
clude that Deale and Romanello are entitled to qualified immunity.

It is well established, however, that the facts must be viewed in
McAfee's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
254 (1986) ("The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor."). When taken
in the light most favorable to McAfee, the record contains facts which
support a finding that McAfee did not act in an abusive, disruptive,
or rude manner and that there was thus no valid cause for her expul-
sion from the animal shelter. A reasonable juror could also find that
McAfee was banned indefinitely from the animal shelter and that
McAfee's protected First Amendment activities were a"substantial"
and "motivating" factor in the decision to impose that ban. See Mt.
Healthy School Dist. v. Doyle, 429 U.S. 274, 287 (1977).

I am unable to conclude at this stage that Deale and Romanello are
entitled to qualified immunity. I would affirm the district court and
remand the case for trial.

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