Deborah Szymecki v. Ashley Houck, No. 09-1094 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1094 DEBORAH SZYMECKI, Plaintiff Appellant, and CHESTER SZYMECKI, Plaintiff, v. ASHLEY HOUCK, Defendant Appellee, and THE CITY OF NORFOLK, Defendant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:08-cv-00142-HCM-TEM) Submitted: September 22, 2009 Decided: November 24, 2009 Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Stephen Merrill, GHENT LAW OFFICES, Norfolk, Virginia, for Appellant. Edward A. Fiorella, Jr., FRAIM AND FIORELLA, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Deborah Szymecki appeals the district court s order granting summary judgment in favor of the Defendant based on qualified immunity and dismissing Szymecki s 42 U.S.C. § 1983 (2006) complaint in which she alleged violations of her First Amendment rights. Finding no error, we affirm. This court reviews de novo a district court s order granting summary judgment. Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). Qualified immunity protects government officials from civil damages in a § 1983 action insofar as their conduct does not violate clearly established reasonable statutory person or would constitutional have of which a Edwards known. rights v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999) (internal quotation marks and citation omitted). In determining whether a defendant is immunity, entitled to qualified a court must decide (1) whether there has been a violation of a constitutional right and (2) whether that right was clearly established at the time of the alleged misconduct. Walker v. Prince George s County, 575 F.3d 426, 429 (4th Cir. 2009) (citing Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009)). However, judges of the district courts and the courts of appeals [are] permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed 3 first in light of the circumstances in the particular case at hand. Pearson, 129 S. Ct. at 818. In determining whether there has been a violation of a constitutional right, the court should identify the right at a high level of particularity. (citations omitted). Edwards, 178 F.3d at 251 To decide whether that right was clearly established, courts in this circuit [ordinarily] need not look beyond the decisions of the Supreme Court, this court of appeals, and the highest court of the state in which the case Id. (internal quotation marks and citation arose . . . . omitted). Accordingly, if the right is recognized in another circuit and not in this circuit, the official will ordinarily retain the immunity defense. the constitutional reasonable right official violates that right. Id. must would Moreover, the contours of be sufficiently understand what clear [she] is that a doing Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation omitted). Here, the district court concluded that Szymecki s asserted First Amendment right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct. the record and the relevant legal We have thoroughly reviewed authorities and Accordingly, we affirm the order of the district court. 4 we agree. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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