On March 24, 2025, the Fourth Circuit Court of Appeals decided Somers v. Devine[i], in which the court examined whether an officer violated the First and Fourth Amendments when he arrested a woman at a school board meeting who refused to follow a mask regulation, refused to lower the volume of her voice, and refused to leave the school where the meeting was held upon being ordered to do so by police. The relevant facts of Somers, taken directly from the case, are as follows:
On February 9, 2022, she arrived at an administrative building in Elkton, Maryland, to attend a meeting of the Board of Education of Cecil County (“Board”). J.A. 12, 251. The present case arises from Somers’ behavior at the meeting and her subsequent arrest.
Upon arriving outside the door of the room in which the Board meeting was taking place, Somers was confronted by defendant-appellee Officer Anthony Devine, a member of the Elkton Police Department, and John Roush, the Director of Student and School Safety for Cecil County Public Schools. Roush and Officer Devine informed Somers that she could not enter the meeting without wearing a mask. See J.A. 132. At the time, Maryland state emergency regulations pertaining to the COVID-19 pandemic required that “individuals [] cover their nose and mouth with a face covering while inside a school facility,” unless they fell under one of thirteen exemptions. Md. Code Regs. § 13A.01.07.03 (repealed Feb. 24, 2022). One of these exemptions covered individuals with “a physical or mental impairment documented by a physician as preventing the person from safely wearing a face covering.” Id. § 13A.01.07.03(B)(3).
Somers claimed that she had such documentation from her doctor, although she later admitted she routinely wore a mask while demolishing concrete or sanding. J.A. Digit. Media Vol., Ex. 4, Officer Devine Body Camera Footage at 18:09:26 [hereinafter Devine Body Cam]. She retrieved an eight-month-old nurse practitioner’s letter, which specified that “[Somers] states that she is unable to wear [a] mask due to difficulty breathing when wearing [a] mask and it is also causing her anxiety. Her symptoms are exacerbated due to her pregnancy. She does have a documented history of anxiety and depression.” Somers v. Devine, 732 F. Supp. 3d 445, 456 (D. Md. 2024). While Somers was out of earshot, Officer Devine commented to Roush, “I don’t think the note is sufficient,” Devine Body Cam at 18:04:57, and later explained to Somers that the letter only parroted what she had self-reported to her clinician and did not contain any guidance from the physician specifically, id. at 18:07:41. The officer directed that Somers could sit with other unmasked individuals in the lobby of the building and watch the meeting on a televised livestream. Id. at 18:04:20.
Somers responded negatively to these instructions, asking Officer Devine, “Why are you so devoted to that muzzle?” id. at 18:07:53, and declaring that the masking rule was “not a law, it’s a mandate,” id. at 18:03:59. She ended up taking a seat in the lobby. At least one of the other unmasked individuals seated near her expressed that he had attempted to enter the meeting as an act of protest—a “push” against the masking policy. Id. at 18:45:41.
Approximately thirty-five minutes later, Officer Devine, who was then in the meeting room, heard noise emanating from the lobby. J.A. 134. After seeing meeting participants look at the door leading to the lobby, see, e.g., Devine Body Cam at 18:41:17, Officer Devine exited the meeting and told all the individuals gathered in the lobby to “keep the volume down a little bit” because “you are starting to disrupt the back of the meeting,” id. at 18:41:28. Somers responded, “No,” id. at 18:41:33, which Officer Devine interpreted as a refusal to obey a “lawful order” to decrease the volume of her discourse, id. at 18:43:58. He thereupon ordered her to “leave” and “get out.” Somers responded “no” three more times, and Officer Devine finally indicated that “if you don’t leave the building, you are going to jail.” Somers replied that she was “peacefully refusing to leave,” and when a third party asked if Officer Devine was actually going to make good on his promise to arrest, Somers declared, “Do it.” Id. at 18:41:34-18:41:48.
Officer Devine placed his hands on Somers’ wrists and told her, “You are under arrest, stand up.” She remained seated and verbally refused the order to stand up multiple times, after which Officer Devine made it clear to Somers that she was “resisting arrest.” Somers persisted, telling Officer Devine that “you are going to have to lift me out of this chair.” He did so, and she ended up on the ground on her back. Office Devine ordered her to roll over so that he could properly handcuff her, and Somers again refused. Upon this refusal, Officer Devine rolled her onto her chest, pushed both hands behind her back, and applied pressure to her back for approximately one minute to keep her still. Id. at 18:41:51-18:43:19. Somers repeatedly indicated that Officer Devine was “hurting” her, id. at 18:42:43, but, during her brief confinement, she later told another officer that she had not been hurt despite being thrown to the ground, J.A. Digit. Media Vol., Ex. 5, Officer Brown Body Camera Footage at 19:11:27 [hereinafter Brown Body Cam].
Later in the evening, Officer Devine transported Somers from the Elkton Police Department to the District Court Commissioner’s Office in the Cecil County Courthouse. While preparing to depart, Officer Devine explained that Maryland law required that Somers wear a mask in the courthouse. Devine Body Cam at 23:29:30. Upon their arrival, Somers again refused to don a mask and told Officer Devine to “forcibly put it on [her].” Id. at 23:38:08-23:38:51. Office Devine put the mask on Somers, and she immediately pulled it below her nose and mouth. A minor scuffle then occurred when Officer Devine attempted to adjust the mask, and Somers immediately pulled away. He grabbed Somers’ jacket to control her movement and ensure that he could properly mask her. She continued to resist and eventually dropped into a sitting position on the floor. Id. at 23:38:51-23:39:16. The Commissioner then came out and instructed Somers that she could either wear a mask or conduct the hearing via telephone. Somers finally put on the mask. See J.A. 115.
Somers was subsequently charged with six counts of criminal offenses: (1) willful disturbance of school activities; (2) trespassing on school property; (3) disturbing the public peace; (4) failure to obey a lawful order; (5) resisting arrest; and (6) trespassing on private property. J.A. 70. The District Court for Cecil County convicted Somers on the third and fourth count, but she was later acquitted of these crimes upon appeal to the Circuit Court for Cecil County. J.A. 72, 116.[ii]
Somers subsequently sued the officers, the county, the city and the school board for violating her rights under the First Amendment (retaliatory arrest), Fourth Amendment (false arrest, malicious prosecution and excessive force) and Fourteenth Amendment (excessive force). The claims were dismissed against all defendants and the officers were granted qualified immunity. Somers appealed to the Fourth Circuit Court of Appeals.
On appeal, Somers argued that she was subjected to retaliatory arrest under the First Amendment, unlawful arrest and malicious prosecution under the Fourth Amendment, and excessive force under the Fourth and Fourteenth Amendments.
Qualified Immunity
The court of appeals noted that to defeat an officer’s motion for qualified immunity, a plaintiff must satisfy a two-part test. First, the plaintiff must show that the officer violated a federally protected right. Second, the plaintiff must show that the law was clearly established, such that a reasonable officer would have known, at the time of the incident, that he was violating the plaintiff’s rights.
Retaliatory Arrest, Unlawful Arrest and Malicious Prosecution
At the outset, the court of appeals noted that
[T]he presence of probable cause defeats retaliatory arrest, unlawful arrest, and malicious prosecutions claims alike. See Nieves v. Bartlett, 587 U.S. 391, 405-07, 139 S. Ct. 1715, 204 L. Ed. 2d 1 (2019) (holding that retaliatory arrest claims require an absence of probable cause except for the “narrow” exception when plaintiff is arrested and other “similarly situated individuals” are usually not, such as for offenses like jaywalking); Manuel v. City of Joliet, 580 U.S. 357, 364, 137 S. Ct. 911, 197 L. Ed. 2d 312 (2017) (acknowledging that lawful arrests require probable cause); Harris v. Town of S. Pines, 110 F.4th 633, 639 (4th Cir. 2024) (acknowledging that malicious prosecution claims require an absence of probable cause); see also Reichle, 566 U.S. at 664-65 (“This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause . . . .”).[iii]
The court of appeals then set out to examine if a reasonable officer could have believed there was probable cause to arrest Somers. First, the court observed that Officer Devine gave Somers and other people in the lobby a “lawful directive” to “keep the volume down a little bit.” The court discussed the legal requirements regarding restrictions on speech and stated
This is unquestionably an appropriate “time, place, or manner” restriction on protected speech. See McCullen v. Coakley, 573 U.S. 464, 477, 134 S. Ct. 2518, 189 L. Ed. 2d 502 (2014). Such a restriction must (1) be content neutral, (2) be “narrowly tailored to serve a significant governmental interest,” and (3) preserve “ample alternative channels for communication.” Hulbert v. Pope, 70 F.4th 726, 734 (4th Cir. 2023) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)).[iv]
The court then applied the facts of Somers’s case with the requirements above. First, Officer Devine did not prohibit specific speech. Rather, he requested that the people in the lobby, including Somers, “keep the volume down a little bit.” Therefore, the restriction was “content neutral.” Second, the noise from the people in the lobby was beginning to disrupt the school board meeting. The court of appeals noted that
[T]he Supreme Court has long recognized that governments have a “substantial interest in protecting its citizens from unwelcome noise,” especially when excessive volume disturbs “traditional public forums.” Ward, 491 U.S. at 796 (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)).[v]
Also noteworthy, the officer did not tell the people in the lobby that they could not speak, but rather, “narrowly tailored” his request to have the people talk more quietly. Third, along the same line, channels of communication were preserved, in that the people in the community could continue to speak, just more quietly. The officer did not even require them to use an “alternate” channel of communication, in that they could continue to talk.
However, rather than complying with this “modest adjustment” in volume, Somers replied, “No” to Officer Devine. Officer Devine, interpreted her “no” to mean that she would not speak more quietly, therefore he ordered her to leave the building. She refused and continued to reply, “No.” Based on the above facts, the court of appeals held
Officer Devine had lawful grounds to request that Somers leave the premises; any reasonable officer would agree given the validity of the volume restriction. And surely no rational officer would believe that Somers retained the right to remain in the school facility after Officer Devine ordered her to leave. Thus, a reasonable officer could conclude that her confrontational refusal and continued resistance to a clear order created probable cause for the arrest.[vi]
Somers argued that the officer misinterpreted what she meant when she said, “No.” However, the court of appeals stated that her “no,” in addition to her refusal to speak quietly and her refusal to exit the school, shows that the officer did not misinterpret her reply. However, even if an officer misinterprets a person’s words, the court stated that officers are not liable for “bad guesses in gray areas, they are liable for transgressing bright lines.”[vii] In other words, if an officer reasonably misinterprets a person’s words or actions, the officer is still entitled to qualified immunity.
Therefore, since the court of appeals held that a reasonable officer could have believed there was probable cause to arrest Somers, the court held that Officer Devine was entitled to qualified immunity for the retaliatory arrest, unlawful arrest, and malicious prosecution claims.
Excessive Force
While Somers’s argued the officer violated in his use of force, the Fourth and Fourteenth Amendment, the court of appeals noted that both require “objective reasonableness,” thus the court used the framework for use of force established by the Supreme Court in Graham v. Connor, which is based upon the Fourth Amendment. Additionally, uses of force are seizures governed by the Fourth Amendment.
The court stated
The Graham inquiry is well-known. We do not judge an officer’s use of force “with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Rather, we assess a reasonable officer’s perception of (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) whether the suspect is “actively resisting arrest or attempting to evade arrest by flight.” Id. We may also consider “the extent of the plaintiff’s injury” and “any effort made by the officer to temper or to limit the amount of force.” Kingsley, 576 U.S. at 397.[viii]
The court of appeals then examined the facts of Somers’s incident that are relevant to the excessive force claims. First, court discussed the use of force in the lobby at the school. The court stated
Somers refused to stand up, telling Officer Devine that he would “have to lift [her] out of this chair.” Officer Devine then did so. Somers next refused to roll herself over onto her chest when instructed, so the officer again did so. He applied enough pressure on Somers’s back to keep her still while handcuffing her, and he loosened up in under a minute.[ix]
Second, the court discussed the use of force at the courthouse. The court stated
Officer Devine again merely followed Somers’s own instructions to “forcibly put [the mask] on [her].” Id. at 23:39:48. He tugged at her jacket when she attempted to pull down the mask, and she brought herself to the ground purely through her attempts to pull away from Officer Devine.[x]
Based on these facts, obtained from the officer’s body camera video, the court of appeals stated that Officer Devine’s “use of force was minimal and was made necessary by Somers’s resistance.”[xi] The court of appeals noted that
[E]ven when crimes are not “severe,” we permit officers to apply the degree of force “necessary to overcome that resistance.” Pegg v. Herrnberger, 845 F.3d 112, 120 (4th Cir. 2017).[xii]
Further, the court considered the nature of the Somers’s injury. They noted that, at the detention facility, she stated that she was not injured by Officer Devine.
Thus, regarding the excessive force claim, the court of appeals held
Officer Devine’s use of force was objectively reasonable given the “totality of the circumstances,” and that he is entitled to qualified immunity.[xiii]
Therefore, the court of appeals affirmed the district court’s grant of qualified immunity for Officer Devine.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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[i] No. 24-1511 (4th Cir. March 24, 2025)
[ii] Id. at 2-7
[iii] Id. at 13-14 (emphasis added)
[iv] Id. at 14 (emphasis added)
[v] Id. at 14-15 (emphasis added)
[vi] Id. at 15
[vii] Id. at 16 (quoting” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992))
[viii] Id. at 17-18 (emphasis added)
[ix] Id. at 18
[x] Id. at 18-19
[xi] Id. at 18
[xii] Id. at 19 (emphasis added)
[xiii] Id.
