Lauren Graham v. C. Gagnon; Jannie Clipp

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1521
LAUREN GRAHAM,
Plaintiff - Appellant,
v.
C. GAGNON; JANNIE CLIPP,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:14-cv-00872-TSE-TCB)
Argued: May 11, 2016 Decided: July 27, 2016
Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Reversed and remanded by published opinion. Judge Floyd wrote
the opinion, in which Judge Motz and Senior Judge Davis
concurred.
Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellant. Julia Bougie Judkins, BANCROFT,
MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax, Virginia, for
Appellees.

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FLOYD, Circuit Judge:
Appellant Lauren Graham was arrested for obstruction of
justice. The obstruction charge was ultimately dismissed and
her record expunged. Graham subsequently filed a civil lawsuit
against the police officers responsible for her arrest, alleging
that the officers violated her Fourth Amendment rights by
arresting her without probable cause. Following discovery, the
officers moved for summary judgment, arguing that they were
entitled to qualified immunity. The district court granted the
officers’ motion, and Graham appealed. Because we conclude that
it would have been clear to reasonable officers in Appellees’
position that they lacked probable cause to arrest Graham, we
reverse the grant of summary judgment and remand.
I.
The facts underlying this appeal are drawn from the summary
judgment record made after discovery in the district court and
are presented here in the light most favorable to Graham, the
non-moving party. See, e.g., Merchant v. Bauer, 677 F.3d 656,
658 n.1 (4th Cir. 2012).
A.
At about 10:30 p.m. on September 16, 2012, Mitchell Lee
Cannon called the Falls Church, Virginia, Police Department

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2
(FCPD) to report an assault. Cannon was leaving a convenience
store when he encountered Colby Twinam, a male in his early
twenties, in the parking lot. Apparently still harboring a
grudge from high school, Twinam punched Cannon in the back of
the head. Cannon pushed Twinam away and retreated behind his
car. Twinam taunted Cannon, broke Cannon’s car antenna, and
then ran off.
FCPD officer Clark Gagnon responded to Cannon’s assault
report. After interviewing Cannon, Gagnon obtained an arrest
warrant for Twinam for assault and destruction of property.
Based on a records check, Gagnon learned that Twinam had prior
arrests in 2007 and 2008 for destruction of property and
possession of marijuana. FCPD records indicated that Twinam’s
address was 205 Grove Avenue in Falls Church. Gagnon radioed
other on-duty FCPD officers to request assistance in arresting
Twinam; FCPD officers Jannie Clipp and Alan Freed each responded
that they would assist.
Both Clipp and Freed arrived at the house at 205 Grove
Avenue before Gagnon, a few minutes after midnight. Clipp
proceeded to the front door; Freed went to the side of the house
where steps led up to a covered porch and a side door. Freed
encountered Twinam, who was sitting on the side porch steps.
After ascertaining Twinam’s identity, Freed told him that they
had a warrant for his arrest. Twinam responded by running into

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the house and shutting and locking the side door. Twinam
shouted “Mom, the cops are here”! J.A. 460. Clipp (at the
front door) and Freed (at the side door) began knocking loudly
and ringing the doorbell.
B.
Graham, Twinam’s 56-year-old mother, had been asleep
upstairs and was awakened by the commotion. She “grabbed a
robe,” J.A. 52, and came downstairs to find “a lot of pounding
and yelling” at the front door as well as “pounding” at the side
door. J.A. 53. The family dog was “at this point barking
crazily.” J.A. 54. She did not open the side door, but
proceeded to the front door in the living room. Graham opened
the front door, which consisted of both a main wooden door and a
storm door on an air pump.
Clipp told Graham that they had a warrant and were there to
arrest Twinam. Graham asked to see the warrant and Clipp told
her that the officers did not have the warrant with them. At
some point Freed joined Clipp at the front door; both officers
told Graham that she needed to produce Twinam to be taken into
custody. Graham said, “[L]et me speak with my son,” J.A. 77,
and left the doorway to go find him. Clipp, following standard
practice, placed her foot in the doorway; the storm door,

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closing automatically on the air pump, “then came in contact
with [her] foot.” J.A. 28, 82.
Graham found her son, Twinam, in the kitchen, talking to
his girlfriend on his cellphone. The kitchen was not visible
from the front door. Twinam was apparently asking his
girlfriend whether he ought to try and run for it. Graham said:
“[W]hy would you do that? That’s just dumb.” J.A. 69. She
told Twinam, “[Y]ou need to come now, you need to cooperate. I
don’t know what the issue is but you’ve got to go.” J.A. 71.
At some point while Graham was in the kitchen, Gagnon
arrived at the house and joined Clipp and Freed at the front
door. Graham returned to the front door and told the officers
that “[she] was talking to [her son] and trying to get him to
come out.” J.A. 73. At some point Graham’s fiancé, Richard
Lilitch, who had also been asleep upstairs, came downstairs to
the living room.
Graham and Lilitch returned to the kitchen and convinced
Twinam to go out to the police officers. The most direct route
from the kitchen to the living room passed through a pantry
area. The pantry had doggie gates at either end to pen in the
family dog. Twinam stepped over the first gate, followed by
Graham and then Lilitch. As Twinam stepped over the second
gate, he came into view of the officers at the front door.
Gagnon and Freed entered the house and grabbed Twinam; in the

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process, Twinam and Freed tripped on the doggie gate and wound
up on the floor. The officers handcuffed Twinam and took him
into custody. About six or seven minutes had elapsed since
Graham had been awakened from her sleep.
C.
Gagnon took Twinam to the city detention center for booking
and turned him over to the sheriff. Gagnon then went to the
duty magistrate and applied for an arrest warrant for Graham.
Gagnon sought to arrest Graham for obstruction of justice under
Virginia Code § 18.2-460(A). The Virginia statute provides:
“If any person without just cause knowingly obstructs . . . any
law-enforcement officer . . . in the performance of his duties
as such . . . he shall be guilty of a Class 1 misdemeanor.” Id.
The magistrate denied the warrant application.
D.
The three FCPD officers’ next shift together was a couple
days later. At roll call, Gagnon told Clipp and Freed that the
magistrate had denied his request for an arrest warrant for
Graham. Clipp expressed surprise, telling Gagnon that Graham
“pretty much tried to shut the door on [me] and actually hit
[me] with the door.” J.A. 164. Gagnon had not previously been
aware of this information: he had not arrived at Graham’s house

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by that point and neither Clipp nor Freed had reported it over
the radio.
Gagnon went before the duty magistrate, a different
individual than the magistrate who had denied his first warrant
request. Gagnon told the second magistrate that he had
previously been denied an arrest warrant, but informed the
magistrate that he had learned new information. Gagnon told the
second magistrate “something like” “Ms. Graham had shut the door
on Officer Clipp’s foot.” J.A. 170-71. The second magistrate
authorized an arrest warrant for Graham.
Gagnon arrested Graham outside her home on September 20,
2012. She was brought before a magistrate and released on
personal recognizance. The charge was later dismissed with
prejudice and the record of her arrest expunged.
E.
About a year later, Graham filed an administrative
complaint with the FCPD. The complaint was investigated by an
internal affairs officer, who interviewed the officers involved
and issued a recommendation against further action. The FCPD
Chief, Mary Gavin, conveyed this conclusion to Graham in a
letter dated November 8, 2013. Gavin told Graham that “[t]he
incident involved an arrest situation of an individual that was
evading arrest in your residence. The officers were reacting to

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a situation that was becoming increasingly difficult because of
your actions.” J.A. 27.
Graham subsequently filed suit against Gagnon and Clipp
pursuant to 42 U.S.C. § 1983. She alleged that the officers
violated her Fourth Amendment rights by arresting her without
probable cause to suspect she had violated Virginia’s
obstruction statute. The district court oversaw discovery,
after which the parties cross-moved for summary judgment.
Graham argued that on any view of the facts it was objectively
unreasonable for an officer to conclude there was probable cause
to arrest her. The officers contended the opposite and asserted
that they were protected by qualified immunity.
The district court found that nothing in the record
rebutted “the presumption of reasonableness that attends the
issuance of a warrant by a neutral magistrate.” J.A. 465. The
district court further found that:
[I]t cannot be said on this record that the magistrate
was so obviously in error that any reasonable officer
would have recognized the error. . . . There is a
continuum of behavior from mere passive lack of
cooperation to active attempts to prevent an arrest
and it is the magistrate’s responsibility to determine
whether or not the facts and circumstances reported to
her fall on the probable cause side of this
continuum. . . .
The events at the Twinam/Graham residence were not so
clearly passive noncooperation that no reasonably
competent officer would have concluded that a warrant
should issue. . . . Defendants, it appears, believed
that when plaintiff left the front door to speak with

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her son in the kitchen she was openly encouraging her
son not to cooperate with [them] and come out of the
house. Given the officers’ inability to see or hear
plaintiff’s conversation, the magistrate’s decision
was not so obviously in error that defendants should
be liable for failing to question her judgment.
J.A. 467-68 (citations omitted). The district court accordingly
granted the officers’ summary judgment motion on the basis of
qualified immunity and denied Graham’s cross-motion as moot.
Graham timely appealed.
II.
Whether a party is entitled to summary judgment is a
question of law we review de novo. Henry v. Purnell, 652 F.3d
524, 531 (4th Cir. 2011) (en banc). The district court’s grant
of summary judgment to the officers was appropriate only if,
taking the evidence and all reasonable inferences drawn
therefrom in the light most favorable to Graham, no material
facts were disputed and the officers were entitled to qualified
immunity as a matter of law. See id.
III.
“The doctrine of qualified immunity protects government
officials ‘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

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known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In practical
effect, qualified immunity “gives government officials breathing
room to make reasonable but mistaken judgments.” Messerschmidt
v. Millender, 132 S. Ct. 1235, 1244 (2012) (citation omitted).
This allowance for reasonable mistakes is the product of
“balanc[ing] two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson,
555 U.S. at 231.
The shield of qualified immunity is lost when a government
official (1) violates a constitutional right and (2) that right
was clearly established. See, e.g., Merchant, 677 F.3d at 661.
The right at issue here is not the general right to be free from
arrest without probable cause, but rather the right to be free
from arrest under the particular circumstances of the case.
See, e.g., Pritchett v. Alford, 973 F.2d 307, 313-14 (4th Cir.
1992).1 The appellee officers lose the shield of qualified
1 Framing the right as the general right to be free from
arrest without probable cause would frustrate the purpose of
qualified immunity. It is clearly established that the Fourth
Amendment prohibits police officers from arresting individuals
without probable cause. See, e.g., McAfee v. Boczar, 738 F.3d
81, 87 (4th Cir. 2013); Miller v. Prince George’s Cty., 475 F.3d
621, 627 (4th Cir. 2007). But framing the right at that level
(Continued)

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immunity if it would have been clear to reasonable officers in
their position that they lacked probable cause to arrest Graham
for violating Virginia’s obstruction of justice statute. See
id. In other words, the officers’ immunity turns on the
“objective legal reasonableness” of their conclusion that there
was probable cause to arrest Graham. See Messerschmidt, 132 S.
Ct. at 1245.
IV.
Graham argues that it was objectively unreasonable for
Gagnon and Clipp to conclude there was probable cause to arrest
her. Therefore, Graham argues, the district court erred in
holding that the officers were entitled to qualified immunity.
We agree.
A.
Before evaluating the reasonableness of the officers’
probable cause determination, we first clarify the effect of the
of generality would mean that the “clearly established” prong
would automatically be met in every suit alleging an arrest
without probable cause. The immunity analysis would then turn
solely on whether the officer correctly concluded that probable
cause existed, eliminating the “breathing room” to make
reasonable mistakes. Qualified immunity does not shield
officials from liability for all of their mistakes, but it does
shield them when their mistakes were reasonable.

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arrest warrant. The officers make much of the fact that Gagnon
obtained—at least the second time he asked—an arrest warrant
from a neutral magistrate. However, an arresting officer is not
automatically immunized from suit merely because the officer
successfully requested an arrest warrant first.
“[T]he fact that a neutral magistrate has issued a warrant
is the clearest indication that the officers acted in an
objectively reasonable manner . . . . [but] the fact that a
neutral magistrate has issued a warrant authorizing the
allegedly unconstitutional search or seizure does not end the
inquiry into objective reasonableness.” Messerschmidt, 132
S. Ct. at 1245.2 For example, a warrant will not preclude a
civil suit when “it is obvious that no reasonably competent
officer would have concluded that a warrant should issue.” Id.
(quoting Malley, 475 U.S. at 341). The Malley Court explained:
[I]t goes without saying that where a magistrate acts
mistakenly in issuing a warrant but within the range
of professional competence of a magistrate, the
officer who requested the warrant cannot be held
liable. But it is different if no officer of
reasonable competence would have requested the
warrant, i.e., his request is outside the range of the
2 Messerschmidt was a search, vice seizure, case, but the
same standard is applicable in both contexts. See, e.g.,
Messerschmidt, 132 S. Ct. at 1245 n.1 (explaining that “the same
standard of objective reasonableness” applied in suppression-
hearing cases “defines the qualified immunity accorded an
officer who obtained or relied on an allegedly invalid warrant”
and citing Malley v. Briggs, 475 U.S. 335, 344 (1986), an arrest
case).

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professional competence expected of an officer. If
the magistrate issues the warrant in such a case, his
action is not just a reasonable mistake, but an
unacceptable error indicating gross incompetence or
neglect of duty. The officer then cannot excuse his
own default by pointing to the greater incompetence of
the magistrate.
475 U.S. at 346 n.9.3 Consistent with Malley and Messerschmidt,
we have repeatedly held that arrest warrants do not confer
immunity if it was objectively unreasonable to conclude there
was probable cause for the arrest. See, e.g., Merchant, 677
F.3d at 665-66; McAfee, 738 F.3d at 87. Accordingly, if the
officers’ decision to request a warrant for Graham’s arrest was
outside the range of professional competence expected of an
officer—that is, if it was objectively unreasonable to conclude
there was probable cause that Graham violated Virginia’s
obstruction statute—then the officers are not immune from suit.
3 The Malley Court also stated that “[i]t is a sound
presumption that the magistrate is more qualified than the
police officer to make a probable cause determination.” Malley,
475 U.S. at 346 n.9 (citation omitted). Malley does not clarify
the effect on qualified immunity when that presumption is
rebutted. As the district court noted, in Virginia “magistrates
need not be members of the bar or trained lawyers.” J.A. 464
n.4 (citing the Supreme Court of Virginia’s Magistrate Manual).
The record does not disclose the identity of the magistrates
involved in this case, but we need not decide whether the Malley
presumption holds as our conclusion here does not turn on the
magistrates’ qualifications. We therefore presume that the
magistrates were in fact more qualified than the officers to
make a probable cause determination.

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B.
We now turn to the reasonableness of the officers’ probable
cause determination. As we explained above, if a police officer
incorrectly determines that probable cause existed, the officer
does not necessarily lose the protection of qualified immunity.
If the probable cause determination, though mistaken, was
nevertheless objectively reasonable, the officer should enjoy
immunity. However, where the officer’s mistake was objectively
unreasonable, the officer may be subject to civil liability.
It is impossible to determine whether a probable cause
determination was mistaken—and, if so, whether such a mistake
was reasonable—without an understanding of what would constitute
probable cause under the circumstances. “Whether probable cause
exists in a particular situation . . . always turns on two
factors in combination: the suspect’s conduct as known to the
officer, and the contours of the offense thought to be committed
by that conduct.” Pritchett, 973 F.2d at 314; see also, e.g.,
McAfee, 738 F.3d at 87; Sevigny v. Dicksey, 846 F.2d 953, 956-57
(4th Cir. 1988). Thus, we ask: (1) what did Clipp and Gagnon
know of Graham’s conduct?; and (2) what are the contours of the
conduct proscribed by Virginia’s obstruction statute? By
comparing Graham’s known conduct to the conduct proscribed by
the Virginia statute, we can then assess the reasonableness of
the officers’ decision to seek Graham’s arrest.

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1.
In determining what conduct of Graham’s was known to the
officers, we consider only “information actually possessed by
the officer[s] at the critical time, or that was then reasonably
available to [them], and in light of any exigencies of time and
circumstance that reasonably may have affected the officer[s’]
perceptions.” Pritchett, 973 F.2d at 312 (citations omitted).
In other words, we do not impute factual knowledge to the
officers that they did not have or that was not reasonably
available to them. Facts may later be discovered that would
have made it clear to the officers that no crime had been
committed; but, if those facts were not known or reasonably
available to the officers before the arrest, we do not include
those facts in the qualified immunity calculus.
We are mindful, however, that this case is before us on the
officers’ summary judgment motion. We therefore take the
evidence and all reasonable inferences to be drawn therefrom in
the light most favorable to Graham. Henry, 652 F.3d at 531. We
have explained that “[t]he importance of summary judgment in
qualified immunity cases ‘does not mean . . . that summary
judgment doctrine is to be skewed from its ordinary operation to
give special substantive favor to the defense.’” Wilson v.
Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (quoting Pritchett,
973 F.2d at 313).

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The operation of these principles to the record here is
straightforward: the officers are assumed to have possessed the
information they would have had if events unfolded as Graham
asserts. For example, the parties dispute the time that elapsed
from Graham being awakened until Twinam was in custody: the
officers assert it was approximately 15-20 minutes while Graham
puts the length of her involvement on the order of 6-7 minutes.
Compare Appellees’ Br. 8, with Appellant’s Br. 15-16. On the
officers’ summary judgment motion, we assume Graham’s version of
the timeline.4 We thus assume that the officers’ “actually
possessed” the information that the total time of Graham’s
involvement was no more than about seven minutes.
The factual version of events we laid out early in the
opinion is Graham’s version. This is the version from which the
officers are assumed to have gathered the information they could
use to determine whether there was probable cause that Graham
4 “[W]hen documentary evidence ‘blatantly contradict[s]’ a
[party’s] account ‘so that no reasonable jury could believe it,’
a court should not credit [that party’s] version on summary
judgment.” Witt v. W. Va. State Police, Troop 2, 633 F.3d 272,
276-77 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)). The record includes recordings of the officers’
radio communications on the night of Twinam’s arrest. The log
of those recordings is time-stamped and thus enables at least a
partial reconstruction of the timing of events. Having reviewed
these recordings, we observe that the recordings are consistent
with—rather than contradictory to—Graham’s timeline. The time
stamps cast serious doubt on the viability of the officers’
account of the time.

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had committed a crime. However, not every fact in Graham’s
account of the evening is assumed to have been possessed by the
officers. For example, on summary judgment we accept Graham’s
assertion that, while in her kitchen, she was encouraging her
son to cooperate and surrender himself. But the kitchen was out
of sight and earshot of the officers at the front door. It
would thus be inappropriate to assume the officers “actually
possessed” the details of that conversation. Put another way,
even assuming events unfolded as Graham asserts, the officers
would still not have “actually possessed” information about a
conversation they were not in a position to hear.
The district court correctly did not charge the officers
with knowledge of that conversation. However, rather than
simply leaving the content of the conversation out of the
analysis, the district court instead improperly credited the
officers’ subjective beliefs about what might have been
happening in Graham’s kitchen. The district court stated, “[The
officers], it appears, believed that when [Graham] left the
front door to speak with her son in the kitchen she was openly
encouraging her son not to cooperate with them and come out of
the house.” J.A. 468 (citation omitted). We have repeatedly
explained that an officer’s subjective belief is not legally
relevant to the probable cause analysis. “Because probable
cause is an objective test, we examine the facts within the

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knowledge of arresting officers to determine whether they
provide a probability on which reasonable and prudent persons
would act; we do not examine the subjective beliefs of the
arresting officers to determine whether they thought that the
facts constituted probable cause.” United States v. Gray, 137
F.3d 765, 769 (4th Cir. 1998) (collecting cases); cf. Henry, 652
F.3d at 535 (“[O]ur Court has consistently conducted an
objective analysis of qualified immunity claims and stressed
that an officer’s subjective intent or beliefs play no role.”).
The officers could still have incorporated a suspicion that
Graham was encouraging her son to flee into their probable cause
calculation if it was objectively reasonable to suspect so—that
is, if a person “of reasonable caution . . . [would] believ[e]
[it], in the circumstances.” See Michigan v. DeFillippo, 443
U.S. 31, 37 (1979). Here, however, the officers do not point to
any factual circumstance that would make a person of reasonable
caution believe Graham was inciting her son to flight. For
summary judgment purposes: (1) Graham told the officers, “[L]et
me speak with my son and get him,” J.A. 77; (2) Graham walked
into the house and then returned within a minute or so, telling
the officers that she “was talking to [her son] and trying to
get him to come out,” J.A. 73; and (3) Graham again walked into
the house and within another minute or so her son was walking
into view of the officers at the front door where he was taken

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into custody. J.A. 74. These facts are not flatly incompatible
with a reality in which Graham was in the kitchen encouraging
her son to flee arrest: Graham could have been repeatedly lying
to the officers, and her sagacious son might have decided to
give himself up against the advice of his mother. But if the
officers believed that Graham was encouraging Twinam to flee,5
that belief was, at best, a hunch, and “a mere hunch that
illegal activity is afoot . . . [is not] probable cause.” Doe
v. Broderick, 225 F.3d 440, 452 (4th Cir. 2000) (citing United
States v. Sokolow, 490 U.S. 1, 7 (1989)).6
5 We find it difficult to reconcile such a belief with the
actions of the officers here. If the officers believed Graham
was actively encouraging her son to flee arrest, it strikes us
as odd that they would not, at the very least, have asked her to
stop doing so when she returned to the front door. Any number
of other actions, such as, for example, having one of the three
officers watch the back door, might also have been consistent
with a belief that a footrace was imminent.
6 Even if Graham had been suggesting her son leg it out the
back door, it is not at all clear that such encouragement would
have put Graham in violation of the Virginia obstruction
statute. In Atkins v. Commonwealth, police officers were
attempting to detain Atkins on suspicion of stealing a car. 678
S.E.2d 834, 835 (Va. Ct. App. 2009). Atkins fled from the
officers into nearby woods, where he eluded capture for four
hours. Id. The Virginia Court of Appeals held that these facts
were legally insufficient to establish obstruction under
Virginia Code § 18.2-460(A). Id. If actual flight is not
obstruction, it would be odd if suggested flight was.

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2.
We turn now to the contours of the conduct proscribed by
the Virginia obstruction statute. The statute under which
Graham was arrested states: “If any person without just cause
knowingly obstructs . . . any law-enforcement officer . . . in
the performance of his duties as such . . . he shall be guilty
of a Class 1 misdemeanor.” Va. Code Ann. § 18.2-460(A). This
sparse language could be read in the first instance to proscribe
a wide ambit of conduct, although we would still struggle to fit
Graham’s conduct within that ambit. At an absolute minimum,
something she did must have “obstructed” an attempted action of
one of the officers. We cannot find in the record any attempted
action by the officers that could be said to have been
“obstructed” by Graham, and the officers’ brief and oral
argument are likewise missing even a suggested action that was
actually obstructed.
Regardless, we are not the first court to read this
statute. Both the Virginia courts and this Court have applied
the statute many times before, and there is a small mountain of
caselaw that makes clear that whatever the outer boundary of
Virginia Code § 18.2-460(A), Graham came nowhere near it. In
Wilson, we explained that “[t]he Virginia courts . . . have
subjected the Statute to a limiting construction, under which a
person must do more than merely render an arrest more difficult

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or inconvenient than it might otherwise have been . . . in order
to be criminally liable.” 337 F.3d at 399 (citing Ruckman v.
Commonwealth, 505 S.E.2d 388, 389 (Va. Ct. App. 1998)). We
further explained that “[t]he stringent definition of
obstruction that appears in Ruckman is nothing new to Virginia’s
jurisprudence,” and we continued by noting that “[w]e have
acknowledged the distinction that the Virginia courts have long
drawn between conduct that merely impedes or frustrates the
officer, which does not ground liability under the Obstruction
Statute, and conduct that intentionally thwarts or prevents an
arrest, which does.” Id. at 399-400 (citing Rogers v.
Pendleton, 249 F.3d 279, 291 (4th Cir. 2001)); accord, e.g.,
Jordan v. Commonwealth, 643 S.E.2d 166, 171 (Va. 2007). Graham
did not thwart or prevent Twinam’s arrest; it is far from
apparent that she impeded or frustrated it either. Under
Virginia law, it is clear there was no probable cause to arrest
Graham for obstruction of justice.
The officers advance the idea that Graham was less than
fully cooperative or that her actions made their task more
difficult. This was exactly the theory conveyed to Graham by
the FCPD Chief after Graham complained about the officers’
actions; Chief Gavin explained to Graham that Gavin felt her
officers were right to arrest Graham because they “were reacting
to a situation that was becoming increasingly difficult because

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of your actions.” J.A. 27. Even if Graham did make things more
difficult,7 it is beyond debate that such conduct does not fall
within Virginia’s obstruction statute: “[Section] 18.2–460(A)
requires ‘actual hindrance or obstruction of the officer,’
‘opposition or resistance by direct action.’ ‘[O]bstruction of
justice does not occur when a person fails to cooperate fully
with an officer or when the person’s conduct merely renders the
officer’s task more difficult’ or ‘frustrate[s] [his or her]
investigation.’” Rogers, 249 F.3d at 291 (quoting Polk v.
Commonwealth, 358 S.E.2d 770, 772–73 (Va. Ct. App. 1987), and
Ruckman, 505 S.E.2d at 389, 390). It is objectively
unreasonable to conclude anything other than that Graham’s
conduct fell well outside the Virginia statute. Accord, e.g.,
Kee v. City of Hampton, No. 2597-08-1, 2009 WL 3734053, at *3
7 The officers do not make clear what about Graham’s conduct
made the arrest more difficult. At oral argument, counsel for
the officers suggested that it would have been unproblematic had
Graham simply stayed in bed rather than coming downstairs and
opening the front door. It seems extremely unlikely that
Graham’s actual conduct in coming downstairs did not make
Twinam’s arrest at least marginally less difficult for the
officers than had she put in earplugs and kept snoozing.
Regardless, once she opened the door and the officers asked her
to produce her son, it is unclear what the officers expected her
to do. Graham was about 56 years old and Twinam was about 21.
The officers could not have reasonably expected Graham to
physically wrestle her son to the front door. Graham was left
to the power of her persuasion, a power she successfully used to
compel her son into custody within a matter of minutes.
Graham’s conduct strikes us as about as helpful as could be
expected.

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22
(Va. Ct. App. Nov. 10, 2009) (“[A]ppellant, by initially not
allowing the police officer into his house, merely made the
[domestic abuse] investigation more difficult by failing to
cooperate with the officer. There was no direct act by
appellant to resist the officer. Courts have repeatedly held
that such indirect acts are not enough to constitute
obstruction.” (collecting cases)).
The district court acknowledged some of these cases in a
footnote. It further acknowledged Graham’s argument that those
cases establish that the facts here did not amount to probable
cause, and characterized that argument as “not plainly
insubstantial.” J.A. 466-67. The district court nevertheless
found the officers were entitled to qualified immunity after
concluding, essentially, that the officers’ mistake was
reasonable. It was not.
The district court summarized Virginia law thusly: “Mere
passive lack of cooperation does not constitute probable cause,
whereas active refusal to cooperate, including making active
efforts to prevent the arrest from taking place, clearly may
amount to obstruction.” J.A. 467. Even if this statement
correctly characterized Virginia law, we think it would still be
objectively unreasonable to conclude Graham made “active efforts
to prevent the arrest from taking place.” But it does not
correctly characterize Virginia law. As just one example,

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23
Atkins held that a suspect who flees officers attempting to
detain him, and then hides out in the woods for four hours
evading the officers, cannot be convicted under the obstruction
statute. 678 S.E.2d at 835. Atkins’s actions appear to fall
squarely at the “active efforts” end of the district court’s
obstruction continuum, but such actions have been clearly held
to fall outside the statute.
The district court’s formulation also strikes us as
unworkable in practice. If an individual refuses to open her
front door to officers attempting to investigate, is the
individual “passively not opening the door” or “actively
refusing to cooperate”? Cf. Kee, 2009 WL 3734053, at *3. These
difficulties are illustrated by Appellees’ contention at oral
argument that Graham could not have been arrested had she stayed
upstairs and refused to open the door, a set of circumstances
that we think would have made Twinam’s arrest more difficult
than what actually occurred. Courts, however, need not struggle
with the semantics of “activity” and “passivity”; as we
explained earlier, obstruction under the Virginia statute does
not turn on such characterizations.
Finally, we address the officers’ contention that “Graham’s
argument that she did not obstruct justice under Virginia Code
§ 18.2-460, and that there was no probable cause for her arrest
under that statute, is irrelevant.” Appellees’ Br. 15. It is

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24
true that an actual lack of probable cause is not dispositive
for qualified immunity purposes; qualified immunity protects
officers who make mistakes if those mistakes are reasonable.
But the officers’ contention misses the point. The boundaries
of the statute are extremely relevant to an assessment of
whether a mistake was reasonable.
The officers’ misconception may explain why they cite next
to no cases discussing the substantive scope of the Virginia
statute. The officers cite Polk for the proposition that “an
offender need not actually obstruct an officer to be guilty of
obstruction of justice—an offender’s mere attempt to do so
constitutes a substantive offense.” Appellees’ Br. 28. As an
initial matter—and as the officers acknowledge—Polk was applying
a different statute that criminalized “attempt[ing] to
intimidate or impede a . . . law-enforcement officer” “by
threats, or force.” See 358 S.E.2d at 771 n.1. It is unclear
what support the officers seek from Polk, but the court there
specifically contrasted the threats statute with other Virginia
statutes—such as the one at issue here—“requiring actual
‘obstruction.’” Id. at 772-773.
If the officers are suggesting that Graham obstructed
justice in the same manner as Polk—i.e., verbally—they are
mistaken. Polk was convicted under the threats statute after
repeatedly threatening to kill his arresting officer. Id. at

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25
771. Graham was arrested pursuant to the obstruction statute,
and there is no contention that her verbal interaction with the
officers was anything other than peaceful. As we have
explained:
Peaceful verbal criticism of an officer who is making
an arrest cannot be targeted under a general
obstruction of justice statute such as Virginia’s
without running afoul of the First Amendment: “The
Constitution does not allow such speech to be made a
crime. The freedom of individuals verbally to oppose
or challenge police action without thereby risking
arrest is one of the principal characteristics by
which we distinguish a free nation from a police
state.”
Wilson, 337 F.3d at 399 n.3 (quoting City of Houston v. Hill,
482 U.S. 451, 462–63 (1987)). We therefore reject any
contention that Graham’s arrest might have been justified by
non-violent criticism of the officers.
3.
Numerous decisions of the Virginia courts and this Court
provide guidance on the scope of Virginia Code § 18.2-460(A).
There are undoubtedly still gray areas at the statute’s
boundaries, meaning that officers enforcing it will at times
face close cases. This was not one of those cases. Given
Graham’s known conduct, it would have been clear to reasonable
officers in Appellees’ position that they lacked probable cause
to arrest Graham for obstruction of justice. We therefore

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26
reverse the district court’s grant of summary judgment to Gagnon
and Clipp.
V.
Graham asks us to direct the district court to enter
summary judgment for her and to remand solely for a
determination of damages. Graham argues that if we find the
officers clearly violated her constitutional rights, there are
no remaining liability issues to try. The problem with this
argument is that we concluded the officers clearly violated her
rights when the disputed facts are viewed in the light most
favorable to her. Graham is entitled to summary judgment only
if the same conclusion obtains when viewing the facts in the
light most favorable to the arresting officers. Henry, 652 F.3d
at 531. The district court did not rule on the merits of
Graham’s motion. J.A. 468. Under the circumstances, it is
appropriate to remand the case for the district court to
consider her motion—under the correct legal standards explained
above—in the first instance.
VI.
Finally, we return to the officers’ oft-repeated argument
that “it was reasonable for them to rely on the magistrate’s
finding of probable cause and issuance of an arrest warrant.”

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E.g., Appellees’ Br. 30-31. We have already explained why it
was unreasonable to do so here. But their argument also elides
the fact that the officers received guidance from another
magistrate. That magistrate, to whom Gagnon first applied,
denied the warrant application, J.A. 462, thus putting the
officers on notice that probable cause was lacking.
The district court observed that, unlike federal law,
“Virginia law does not require officers seeking arrest warrants
to do so by way of written declarations or sworn affidavits,”
J.A. 466 n.6 (citing Va. Code Ann. § 19.2-72), and that “[n]o
written record of the facts presented to the magistrates exists
here.” Id. Graham suggests that Gagnon was only able to obtain
a warrant from the second magistrate by misleading the
magistrate about the events of that night. The district court
correctly noted that the record does not contain any evidence of
false statements on Gagnon’s part. Of course, with no
requirement that warrant applications be recorded, how could it?
We have assumed that Gagnon fairly presented the facts to
both magistrates. If that was indeed the case, the second
warrant application would have been identical to the first, with
the exception that Gagnon could have also recounted the
additional fact of the storm door closing. As to the door
closing, this is how Clipp described it during her deposition:

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28
Q. Did [Graham] attempt to force the door—to push your
foot with the door notwithstanding your having told her
that she needed to keep the door closed (sic)?
A. No.8
. . . .
Q. Your foot was not injured by the door touching it,
was it?
A. No.
Q. No. Was the shoe scuffed?
A. No. I mean, I didn’t inspect it after that;
but . . . it wasn’t anything significant.
J.A. 240-41, 254.
Having been told by the initial magistrate that there was
no probable cause to arrest Graham, the officers must have
concluded the door-closing tipped the probable cause scales.
We find it hard to take this very seriously.
* * * * *
8 The FCPD Chief had apparently been given a different
impression. At her deposition, Chief Gavin testified:
A. I – as far as [Graham’s] action[] was, as I
understood, was pushing the door back onto Officer
Clipp’s foot.
Q. Is that the screen door that closed on her foot?
A. I believe so.
J.A. 422.

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For the reasons above, we reverse the district court’s
grant of summary judgment to Appellees and remand.
REVERSED AND REMANDED

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