The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No Clearly Established Right to Communicate with a Horse
That is, of course, unless the horse is the famous Mr. Ed.
In Meyler v. Mayor & City Council of Ocean City, decided last month by Judge James Bredar (D. Md.), police officers came over to Meyler and his friends near a bar at 2 am, because one of the friends was playing music loudly on his car radio.
One of the responding officers, Officer Foreman, was mounted on a police horse named Moose…. [At some point in ther action, as shown on the video], Meyler turns toward Moose and makes some clicking sounds. Moose does not immediately react, but about five seconds later he visibly moves his head and appears to take a step or two in response to the clicking, after having previously been still. Foreman's hands can then be seen briefly pulling on the reins to stop Moose's movement; after that point Moose appears calm and still again, and remains calm for the remainder of the video….
After more conversation among the officer, Meyler, and Meyler's friend, and more clicking by Meyler at the horse, Meyler "was arrested for failure to obey a lawful order and interference with a police animal," though the charges were later dropped. Meyler sued for false arrest, in part on the grounds "that he suffered hand abrasions, numbness, and back pain as a result of being handcuffed." But the court rejected Meyler's claims; here's an excerpt:
Foreman could reasonably have concluded that Meyler was interfering with Moose's performance of a lawful police activity. Seconds after Meyler first made the clicking noise, Moose appeared to respond by trying to move forward, and Foreman had to pull on Moose's reins to keep Moose still. Although there may be a factual dispute whether Moose was in fact responding to Meyler's clicking or whether Moose's movement was unrelated, Foreman could have reasonably concluded in the moment that Moose reacted to Meyler's clicks. Moreover, Foreman has produced unrebutted testimony that mounted police officers use clicking noises for commands ….
Meyler argues that he had a clearly established First Amendment right to make clicking sounds toward Moose, notwithstanding Foreman's orders to the contrary…. However, even assuming that Meyler's First Amendment rights were violated, Foreman and Norris would be entitled to qualified immunity as his rights were not clearly established at the time of the arrest….
Meyler has not pointed to a single case involving an arrest made under Ocean City's police animal interference ordinance, or, for that matter, any case anywhere involving any claims of wrongful arrest related to alleged interference with police animals. Nor has he pointed to any cases involving the application of First Amendment rights to human-animal interactions. When a plaintiff fails to "identif[y] a single precedent—much less a controlling case or robust consensus of cases—finding a [constitutional] violation under similar circumstances," he will likely be unable to show that the purported right was clearly established at the time. Nor is this "'the rare obvious case' where a general standard can clearly establish the answer." …
There's a lot more going on, including allegations of race discrimination; you can read the full opinion here.
Bruce Frederick Bright (Ayres, Jenkins, Gordy & Almand PA) represents the City.
