                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-2172


NATALIE HAYES, individually;     as   the   next   best   friend   of
R.D.; RICARDO DIXON,

                Plaintiffs - Appellants,

           v.

CITY OF SEAT PLEASANT, MARYLAND; PFC BURNETT, Seat Pleasant
Police Department in both his official and individual
capacities,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:08-cv-02548-DKC)


Argued:   December 8, 2011                  Decided:      March 14, 2012


Before GREGORY and SHEDD, Circuit Judges, and Richard M. GERGEL,
United States District Judge for the District of South Carolina,
sitting by designation.


Vacated and remanded by unpublished opinion.       Judge Gregory
wrote the opinion, in which Judge Shedd and Judge Gergel joined.


ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellants.        Kevin Bock Karpinski,
KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for
Appellees.   ON BRIEF: Michael B. Rynd, KARPINSKI, COLARESI &
KARP, PA, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                  2
GREGORY, Circuit Judge:

       Appellant-plaintiffs Ricardo Dixon and Natalie Hayes filed

an    eight-count         complaint       asserting         several        civil    rights     and

state        law     claims    against        defendant-appellees                City   of    Seat

Pleasant,          Maryland,      and    officer      Tracey      Burnett        stemming     from

their arrest on September 27, 2006.                         Hayes also brought suit on

behalf of her minor daughter, R.D.

        The        district    court      granted         the     Appellees’        motion        for

summary        judgment        and       dismissed         the        Appellants’       lawsuit,

including          the    claim    brought      on    behalf          of   the    five-year-old

child.        At issue on appeal is the dismissal of the Appellants’

constitutional claims for unlawful seizure and excessive force

and     state       law    tort      claims     for       false       arrest,     battery,     and

malicious prosecution.                  For the reasons that follow, we vacate

the district court’s grant of summary judgment in favor of the

Appellees as to these claims and remand for further proceedings.



                                                I.

        On    September        27,      2006,   Hayes,          who    was   employed        as    a

lieutenant with Coastal International Security, * arrived home in

uniform at approximately 4:00 p.m. and began talking to a family


       *
        Coastal International                   Security          provides        security        for
government buildings.



                                                      3
friend, Antonio Sallis, who had been visiting Hayes, her husband

Dixon, and their two children.             All were standing outside of the

Dixon-Hayes home.      At approximately 5:00 p.m., Dixon prepared to

take Sallis back to his home.               Dixon placed his son in a car

seat in the rear of the vehicle, and Sallis got into the front

passenger seat.      As Dixon completed strapping his son into the

car seat, he noticed that a police cruiser, later identified as

Burnett’s, was parked directly across from his driveway.                        From

his driveway, Dixon asked Burnett if Burnett could move up so

that he could back out of his driveway.                    In response, Burnett

allegedly yelled in a loud voice, “What, you don’t have enough

room?”     Dixon then got in his vehicle and waited for Burnett to

move.     After a few minutes, Burnett moved up the street and made

a U-turn.      Dixon proceeded to back out of the driveway, and as

he pulled up to the nearest stop sign, Burnett activated his

emergency lights and stopped Dixon’s vehicle.                 The stop sign was

at the corner of the Dixon-Hayes property.

      Hayes, standing on the sidewalk near the passenger side of

the   patrol   car   with   her     daughter,      asked   Burnett   why   he    was

stopping her car and harassing her husband.                   Burnett allegedly

responded, “Get the hell out of my face.”                    Hayes again asked

Burnett why he was harassing her family, at which time Burnett

exited his car and came around the front of his vehicle and onto

the     sidewalk   where    Hayes    and     her    daughter    were   standing.

                                            4
Burnett approached Hayes on the sidewalk, pointed and shouted in

her face, “Shut the hell up, shut the hell up.”                       Hayes asked

Burnett   to     back    away     from     her   because     her    daughter     was

hysterical at this time.               As Hayes consoled her daughter, she

backed up so that she was now near the rear window of her car,

which   was    located    on    Seat    Pleasant    Drive.     While     Hayes   was

attempting to calm her daughter, Burnett grabbed her arm and

pulled out his baton, which he fully extended.                        The parties

agree that Burnett was physically handling Hayes as he backed

her up.       At that point, Dixon exited the car.                    Dixon asked

Burnett to take his hands off of Hayes, and requested that he

call a female officer.            Burnett told Dixon to stay back, and

Dixon complied.         Nevertheless, Burnett holstered his baton and

took out his pepper spray.                Burnett sprayed Dixon and turned

around and sprayed Hayes in her face, eye, nose, and mouth as

Hayes   held    her     daughter’s       hand.      Appellants     and   witnesses

testified that at the time Burnett sprayed Dixon, he was no

closer than seven feet away, had obeyed Burnett’s orders to stay

back, and had made no further comments.                    They also testified

that Hayes     never     left   the     sidewalk.     Burnett      testified     that

Hayes interfered with his traffic stop by stepping in between

his and Dixon’s vehicles.              He also testified that Dixon bumped

him when Dixon exited his vehicle.



                                             5
     After    deploying     pepper      spray     on    the     Dixon-Hayes      family,

Burnett then proceeded to arrest Hayes and Dixon.                             Hayes was

charged with obstructing and hindering, resisting arrest, and

disorderly     conduct.      Dixon      was       charged      with    second      degree

assault, obstructing and hindering, interfering with an arrest,

and disorderly conduct.           Following a jury trial on June 25,

2007, Dixon and Hayes were found not guilty of all charges.

Dixon and Hayes then filed their eight-count complaint asserting

the civil rights and state law claims against the Appellees.

     The     district     court   granted         the     Appellees’        motion     for

summary judgment, finding there was probable cause for Burnett

to initiate an investigatory traffic stop and probable cause to

arrest    Dixon    and   Hayes.      The   district           court    also    found    no

evidence that Burnett acted with malice and that the force he

deployed     was   objectively     reasonable           and    did    not     amount    to

excessive force.

     “We review the district court’s summary judgment ruling de

novo, viewing the facts in the light most favorable to . . . the

non-moving party and drawing all reasonable inferences in her

favor.”      Doe    v.   Kidd,    501    F.3d      348,       353    (4th   Cir.     2007)

(citation omitted).




                                              6
                                II.

     The actions filed against Burnett and the city depend, to

some extent, on the averment that Burnett had no probable cause

to believe that both Hayes and Dixon had committed the crime of

hindering.   The district court’s grant of summary judgment in

favor of the Appellees was based on the court’s finding that

Burnett did have such probable cause.     According to the district

court, Hayes hindered Burnett during the investigatory traffic

stop, and Dixon then hindered Burnett as Burnett attempted to

arrest   Hayes.   Appellants   contend    that   the    district   court

incorrectly determined there was no factual dispute with respect

to probable cause to arrest Hayes and Dixon.      The probable cause

question is therefore central to much of this appeal.

A. Unlawful Seizure

     This Court has articulated the probable cause standard as

“facts and circumstances within the officer’s knowledge [which]

would warrant the belief of a prudent person that the arrestee

had committed or was committing an offense.”           United States v.

Manbeck, 744 F.2d 360, 376 (4th Cir. 1984).       Thus, to determine

whether Officer Burnett had probable cause to lawfully arrest

Appellants, a reviewing court necessarily must relate the events

leading up to the arrest to the elements of the offense that

Officer Burnett believed was being or had been committed.



                                      7
       That   analysis      requires   a    proper    understanding   of   the

elements of the alleged offense -- in this instance hindering.

The elements of the offense of obstructing or hindering a police

officer are

       (1) A police officer engaged in the performance of a
       duty;
       (2) An act, or perhaps an omission, by the accused
       which obstructs or hinders the officer in the
       performance of that duty;
       (3) Knowledge by the accused of facts comprising
       element (1); and
       (4) Intent to obstruct or hinder the officer by act or
       omission constituting element (2).

Cover v. State, 466 A.2d 1276, 1284 (Md. 1983).                  Further, the

offense comprises three categories of conduct:

       (1) positive direct obstruction, in which the officer
       acts directly against the defendant or the defendant’s
       property and is physically resisted; (2) passive
       direct obstruction, where the officer seeks to make
       the defendant act directly and the defendant refuses
       or fails to act as required; and (3) positive indirect
       obstruction, where the police are not acting directly
       against the [defendant] but are acting indirectly
       against other citizens who are, or may be, about to
       commit offenses against the criminal law, and the
       [defendant] does an act which obstructs them in their
       general duty to prevent or detect crime, intending to
       frustrate the police operation.

DiPino 729 A.2d at 361-62. (internal citation omitted).

       Here, the district court found that the conduct at issue

fell   into   the   third    category,     positive   indirect   obstruction.

With regard to Hayes, the district court indicated that “Officer

Burnett could have reasonably believed that Hayes was hindering

by verbally accosting him, even after he told her to move away

                                           8
from the scene.”            With respect to Dixon, the district court

stated, “A number of facts evidence that Dixon was hindering,

such as Dixon’s behavior, his statements to Officer Burnett to

take his hands off his wife, and his movement away from the car

after the officer ordered him to stay back.”

       Our review of the record in the present case reveals two

conflicting versions of what transpired between Hayes, Dixon,

and    Burnett.         Further,        contrary         to       the    district     court’s

contention,     these      disputed     facts       go       to   the    heart   of   whether

probable cause existed to arrest Hayes and Dixon for hindering,

rendering summary judgment inappropriate.

       With regard to Hayes’s arrest, the deposition testimony of

Hayes and other witnesses is at odds with the district court’s

finding that “Hayes interfered with that stop, such that officer

Burnett   was     unable    to    continue,”        and       that      “given   that    Hayes

continued interfering even after Burnett ordered her to stop,

one can infer intent to impede the police.”                             It is unclear that

Hayes “verbally accosted” Burnett at all or “interfered with the

stop, such that officer Burnett was unable to continue,” much

less    that   she   intended      to    do   so,        a    requisite        element   of   a

hindering      offense.      According        to     Hayes        and    witnesses,      Hayes

never left the sidewalk and was holding the hand of her five-

year-old child during the entire exchange with Burnett.                                   From

the    sidewalk    outside       her   home   while          dressed      in   her    security

                                                9
officer’s uniform, she asked Burnett through an open passenger

window why he was stopping the vehicle -- a seemingly reasonable

inquiry based on the questionable circumstances of the traffic

stop -- to which Burnett replied, “Get the hell out of my face.”

When Hayes asked him again why he was harassing her family,

Burnett jumped out of his vehicle, came around to where Hayes

was standing on the sidewalk, and pointed and shouted in her

face, “Shut the hell up,” all while she held her five-year-old

daughter’s hand.         Hayes immediately backed away, consoled her

hysterical daughter, and cut off communication with Burnett.                       It

is undisputed that Burnett then physically grabbed Hayes and

shortly thereafter deployed pepper spray in her face and placed

her   under    arrest.        Construing    the    facts   in    the    light    most

favorable to Hayes, the evidence does not reveal that Burnett

had probable cause to arrest Hayes for the crime of hindering.

      The same is true for Dixon.           Dixon testified that he exited

the   vehicle     out    of    instinct    when    he   saw     “a     big   officer

manhandling [his] wife with a baton in his hand” while she was

holding their daughter’s hand.             He remained at least seven feet

from Burnett, and when ordered to stay back, he obeyed.                         At no

time did he come into contact with the officer or approach any

closer.       Apart from requesting a female officer as he watched

Burnett   twist    his   wife’s    arm     while   holding      their    hysterical

child’s hand, Dixon did not attempt to stop Burnett or interfere

                                            10
with the arrest.            According to the witnesses on the scene, no

resisting of arrest occurred, and no one gave Burnett any reason

at all to be threatened.

       What   transpired         between    Burnett,      Dixon,      and     Hayes   is    a

matter   of    disputed      fact    that       goes   directly       to   the    heart    of

whether Burnett was acting within the contours of his authority

when he arrested the Appellants.                   For the reasons given above,

the district court’s dismissal of the claims arising from the

alleged unlawful arrest is vacated.

B. Excessive Force

       Appellants further contend that the district court erred in

concluding Burnett was entitled to summary judgment with respect

to their claim for excessive force.                    The Supreme Court has held

that   excessive         force   claims     against      law    enforcement        officers

during the course of an arrest should be analyzed under the

Fourth Amendment reasonableness standard.                      Graham v. Connor, 490

U.S. 386, 395 (1989).             Reasonableness analysis requires “careful

attention     to    the    facts    and    circumstances         of    each      particular

case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or   others,       and    whether    he    is    actively       resisting        arrest    or

attempting to evade arrest by flight.”                    Id. at 396.         Viewing the

evidence in the light most favorable to the non-moving parties

does not support           the    conclusion      that    the    force      used   against

                                                 11
Dixon and Hayes was objectively reasonable and did not amount to

excessive force.

       This     is    especially        evident          in   light       of     this     Court’s

decision in Park v. Shiftlett, 250 F.3d 843 (4th Cir. 2001).                                     In

Park, a husband and wife mistakenly entered a convenience store

that they believed was open, triggering the alarm.                                 250 F.3d at

848.    After police arrived, various events led them to detain

the    husband.         Id.       When        the    wife      saw    her       husband       being

handcuffed      and     pressed      against        a    building,        she    responded       by

running toward her husband.                   Id.        Police officers grabbed her,

threw her against the building, handcuffed her, and sprayed her

twice in the eyes with pepper spray at close range.                                  Id.        This

Court determined that this “irresponsible use of pepper spray

twice    from       close    range      was    indeed         excessive.         . . .     It    is

difficult      to    imagine      the   unarmed          [wife]      as   a     threat    to    the

officers or the public.”                Id. at 852-53.               The instant case is

strikingly similar to Park.               At the very least, what transpired

between       Burnett       and   the     Appellants           that       resulted       in     the

Appellants being pepper sprayed involves disputed facts that go

to the heart of the Graham factors and should be decided by a

jury.

C. False Arrest and Battery

       With regard to Appellants’ state law causes of action for

false arrest and battery, the district court determined that

                                                    12
      [b]ecause the court has concluded that Officer Burnett
      possessed probable cause to arrest Plaintiffs for
      misdemeanors committed in his presence, the court will
      enter summary judgment for Defendants on count five,
      the false arrest and imprisonment claim . . . .

      Because the court has already determined that Officer
      Burnett did not use excessive force or unlawfully
      arrest Plaintiffs, the court must conclude there is no
      cause of action for battery either.

      As discussed above, there is a genuine issue of material

fact as to what transpired between Burnett and the Appellants

that goes directly to the question of whether probable cause

existed to arrest the Appellants for hindering and whether a

basis existed for the force that was used.                    For these same

reasons,   the   district     court’s   dismissal      of    these    counts    is

vacated.

D. Malicious Prosecution

      The district court granted Appellees’ motion for summary

judgment   as    to    the    malicious        prosecution    count,     because

“Plaintiffs have not provided any evidence that any wrongful or

improper   motive     drove   Officer   Burnett’s      actions.”        For     the

reasons explained below, we hold that the district court erred

in reaching this conclusion.

      To establish a malicious prosecution claim, Appellants must

show that (1) Burnett instituted criminal proceedings against

the   Appellants;     (2)   the   criminal     proceeding    was     resolved    in

Appellants’ favor; (3) Burnett did not have probable cause to



                                          13
institute the proceeding; and (4) Burnett acted with malice or a

primary purpose other than bringing appellants to justice.                                 Okwa

v. Harper, 757 A.2d 118, 130 (Md. 2000).

       Appellees do not contest that following Appellants’ arrest

by Burnett, Hayes was charged with obstructing and hindering,

resisting arrest, and disorderly conduct, and Dixon was charged

with    second         degree       assault,       obstructing          and        hindering,

interfering with an arrest, and disorderly conduct.                               It is also

uncontested       that    Appellants       were      found      not    guilty       of    these

charges.       Thus, facts have been pled that, if proven, satisfy

the    first     and     second     elements       of   the     tort.         Further,       as

discussed above, there is a triable issue as to whether Burnett

had    probable    cause       to   arrest     Appellants,          precluding       summary

judgment for a failure to satisfy the third element.                                      It is

therefore necessary for us to consider whether, on this record

and as a matter of law, Appellants lacked “malice, or a primary

purpose     in    instituting        the     proceeding         other       than    that     of

bringing the offender to justice.”                      See Krashes v. White, 341

A.3d 798, 801 (Md. 1975).

       The Court of Appeals of Maryland has long held that “the

‘malice’ element of malicious prosecution may be inferred from a

lack   of   probable       cause.”         Okwa,     757     A.2d     at    133     (internal

citations      omitted).        Moreover,      the      court    has       also    held    that

summary     judgment      on    malicious      prosecution        claims      is     improper

                                                14
where, as here, genuine issues of material fact exist as to

whether   a     defendant        officer      had     probable       cause      to    arrest    a

plaintiff.        See     id.    (vacating       summary       judgment         on    malicious

prosecution claim and explaining, “[b]ecause we have determined

Appellees may not have had probable cause to arrest Mr. Okwa,

further       analysis     of    [the     malice]       element       is     unnecessary.”)

(emphasis added).             Because disputed material facts exist in the

record    as    to     whether        Burnett    had       probable       cause      to    arrest

Appellants, and inferences of malicious conduct may be drawn

from a lack of probable cause, Appellants’ malicious prosecution

claim    is     likewise       not     amenable       to    disposition         via       summary

judgment.



                                              III.

     As a final matter, the judgments entered by the district

court    in    favor     of     the    Appellees       were    based       on   the       court’s

finding       that      Burnett         did     not        violate        the     Appellants’

constitutional         rights.          The     court      found     it    unnecessary         to

consider and rule upon any of the immunity defenses raised by

the Appellees.           Having determined there are factual matters in

dispute, rendering summary judgment inappropriate, there is no

legal issue on appeal on which we could base jurisdiction to

address these immunity defenses.                      See Iko v. Shreve, 535 F.3d

225, 237 (4th Cir. 2008).

                                                  15
                                      IV.

      The district court considered areas of factual disagreement

between    the    parties   and     rejected     the   contention     that   the

disputed facts were material to resolution of the issues.                    This

was   in   error.      Appellants    have    alleged   facts    sufficient     to

create a genuine issue of material fact as to whether Hayes

hindered Burnett during the investigatory traffic stop, whether

Dixon hindered Burnett as Burnett attempted to arrest Hayes, and

whether Burnett acted reasonably in pepper spraying Dixon and

Hayes in front of their children.                Contrary to the district

court’s contention, these disputed facts go to the heart of the

Appellants’      constitutional     and   tort   law   claims   for    unlawful

seizure, excessive force, false arrest, battery, and malicious

prosecution.        As such, we vacate the district court’s grant of

summary judgment in the Appellees’ favor on those claims.                      We

remand to the district court for further proceedings consistent

with this opinion.

                                                        VACATED AND REMANDED




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