Jeremiah Henderson v. City of Roanoke, Virginia

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 9, 2022
• Docket: 20-2386
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2386

JEREMIAH HENDERSON,

Plaintiff - Appellant,

v.

CITY OF ROANOKE, VIRGINIA,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Thomas T. Cullen, District Judge. (7:20-cv-00281-TTC)

Argued: January 26, 2022 Decided: March 9, 2022

Before MOTZ, THACKER and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Gary M. Bowman, Roanoke, Virginia, for Appellant. Timothy Ross Spencer, OFFICE OF THE CITY ATTORNEY FOR THE CITY OF ROANOKE, Roanoke, Virginia, for Appellee. ON BRIEF: Douglas P. Barber, Jr., OFFICE OF THE CITY ATTORNEY FOR THE CITY OF ROANOKE, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jeremiah Henderson (“Appellant”) filed this lawsuit against the City of Roanoke

(“Appellee”) pursuant to 42 U.S.C. § 1983, alleging that Appellee barred him from a local

Walmart store (the “Valley View Walmart”) without due process of law in violation of the

Fourteenth Amendment. Appellant contends that Appellee permitted members of its police

department to bar him from the Valley View Walmart without complying with the

procedures required by state and local law. The district court dismissed the complaint for

failure to state a claim, reasoning that the Virginia state statute that Appellant contends

Appellee violated does not create a protected liberty interest. On appeal, Appellant argues

that even if the state statute does not create a protected liberty interest, the complaint

alleged that Appellee’s actions violated his right to “free movement” under the United

States Constitution.

Because we conclude that Appellant based his complaint solely on Appellee’s

alleged violation of state and local statutes that do not create a protected liberty interest,

we affirm the district court’s dismissal of this action.

I.

On May 15, 2020, Appellant filed this lawsuit in the district court, alleging that

Appellee lacked the authority to bar him from the Valley View Walmart. We accept as

true all of the factual allegations contained in the amended complaint. Carey v. Throwe,

957 F.3d 468, 484 (4th Cir. 2020). For the purposes of this appeal, we assume familiarity

with the facts previously set forth in Henderson v. McClain, No. 20-2197 (4th Cir. Feb. 21,

2 2022), ECF No. 42. We briefly reiterate those facts, with a few elaborations as relevant to

our analysis.

In October 2018, after a minor altercation between Appellant and several employees

at the Valley View Walmart, a store manager told a City of Roanoke police officer, Austin

McClain (“Officer McClain”), that he wanted Appellant barred from the store. Thereafter,

Officer McClain, who witnessed part of the altercation, executed a “trespass bar letter”

against Appellant. Officer McClain provided Appellant a copy of the letter, which warned

Appellant that his “continued or subsequent presence on the premises [would] subject

[him] to arrest for trespassing as authorized by the code of Virginia and Code of the City

of Roanoke.” J.A. 82. 1

Virginia Code § 15.2-1717.1 authorizes localities to establish, by ordinance, “a

procedure whereby the owner, lessee, custodian, or person lawfully in charge . . . of real

property may designate the local law-enforcement agency as a ‘person lawfully in charge

of the property’ for the purpose of forbidding another to go or remain upon the lands,

buildings or premises . . . .” Va. Code § 15.2-1717.1. The ordinance “shall require that

any such designation be in writing and on file with the local law-enforcement agency.” Id.

Pursuant to this authority, Appellee adopted Roanoke City Code § 21-32(b), the

mechanism for the so-called “trespass bar letter.” In 2018, when Appellee issued the letter,

the provision provided:

Any owner of real property may, in writing on a form prescribed by the chief of police, designate the police

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

3 department as a person lawfully in charge thereof . . . for the purpose of forbidding another to go or remain upon the lands, buildings or premises of such owner. Such designation shall . . . be kept on file in the office of the chief of police or in such other location within the police department as the chief of police deems appropriate.

Henderson v. City of Roanoke, 504 F. Supp. 3d 530, 535 (W.D. Va. 2020) (quoting

Roanoke, VA., Code § 21-32(b) (emphasis supplied)). 2

It is undisputed that the Roanoke Chief of Police has a form on file that purports to

designate the police department as the “person lawfully in charge of” the Valley View

Walmart. But Appellant contends that this form is defective because the Valley View

Walmart is owned by “Wal-Mart Business Real Estate Trust,” and the “Company or

Business Name” identified on the form is “Wal-Mart,” a separate corporate entity.

According to Appellant, this discrepancy demonstrates that the owner of the Valley View

Walmart “has never authorized the Roanoke Police Department to act as its trespass bar

agent.” J.A. 55. Appellant further theorizes that without such authorization, the issuance

of a trespass bar letter violated his right to due process because he has “a liberty interest,

created by Va. Code § 15.2-1717.1, in not being prohibited by police officers from being

at or returning to the premises at 4807 Valley View Boulevard unless the procedural due

process requirements of Va. Code § 15.2-1717.1 have been satisfied.” Id. at 63 (emphasis

supplied).

2 The provision was amended on December 21, 2020. Now, in addition to the owner, “a lessee, custodian, or person lawfully in charge of real property” has designation authority.

4 Upon motion from Appellee, the district court dismissed the complaint for failure

to state a claim. The court emphasized that rather than alleging “that the Constitution

independently invalidates the actions of the Roanoke police,” Appellant argued “simply

that the Roanoke Police failed to adhere to what [Appellant] believes are mandatory

procedures in the Trespass Bar statutes, and that this failure rises to the level of a

constitutional tort.” Henderson, 504 F. Supp. 3d at 536. The district court then reasoned

that dismissal was required because, per Supreme Court precedent, the trespass bar statutes

do not create a protected liberty interest. Accordingly, the district court entered judgment

for Appellee.

Appellant timely appealed.

II.

We review a district court’s grant of a motion to dismiss de novo. Robertson v.

Anderson Mill Elem. Sch., 989 F.3d 282, 287 (4th Cir. 2021). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks omitted). “Although for the purposes of a motion to dismiss we must take

all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a

legal conclusion couched as a factual allegation.’” Id. (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).

III.

Appellant raises a procedural due process claim. “Procedural due process claims

require showing that the government violated constitutionally protected liberty interests.”

5 Elhady v. Kable, 993 F.3d 208, 213 (4th Cir. 2021). “A liberty interest may arise from the

Constitution itself or from an expectation or interest created by state laws or policies.”

Burnette v. Fahey, 687 F.3d 171, 181 (4th Cir. 2012) (internal quotation marks omitted).

State law or policy must provide a substantive expectation or interest to create a

liberty interest -- the “expectation of receiving process is not, without more, a liberty

interest protected by the Due Process Clause.” Olim v. Wakinekona, 461 U.S. 238, 250

n.12 (1983) (emphasis supplied); see also Hill v. Jackson, 64 F.3d 163, 170–71 (4th Cir.

1995). A state-created liberty interest arises when a statute places “substantive limitations

on official discretion” through “particularized standards or criteria.” Olim, 461 U.S. at 249

(internal quotation marks omitted). “[T]he use of explicitly mandatory language, in

connection with the establishment of specified substantive predicates to limit discretion,

forces a conclusion that the State has created a liberty interest.” Forrester v. Bass, 397

F.3d 1047, 1055 (8th Cir. 2005) (internal quotation marks omitted); see also Stewart v.

Bailey, 7 F.3d 384, 392 (4th Cir. 1993) (“[T]he regulation must create substantive

predicates to guide the decisionmaker’s discretion, such as specific directives to the

decisionmaker that if the regulations’ substantive predicates are present, a particular

outcome must follow.” (internal quotation marks omitted)).

Virginia Code § 15.2-1717.1 does not create a constitutionally protected liberty

interest. The statute merely outlines procedural requirements that localities, like Appellee,

must follow if they exercise their discretionary authority to permit landowners to designate

local law enforcement as trespass agents. Specifically, it provides that the “ordinance shall

require that any such designation be in writing and on file with the local law-enforcement

6 agency.” Va. Code § 15.2-1717.1. It does not limit, through mandatory substantive

predicates, a police officer’s discretion in determining whether to bar someone from

private property. The statute does not, for example, provide that if an ordinance is enacted

by a locality, like Appellee, and a written designation is on file -- both of which are

procedural requirements -- an officer may ban an individual from private property if the

individual refuses to leave or causes a disturbance. See Berrier v. Allen, 951 F.2d 622, 625

(4th Cir. 1991) (holding that substantive predicates are “limitations on the circumstances”

under which officials may exercise their authority).

In the absence of mandatory substantive predicates, “the particular substantive

outcome in each case [is left] to the sound discretion of trained . . . law enforcement

officers.” Forrester, 397 F.3d at 1056. And where, as here, “an administrative process

does not require specific substantive outcomes, but merely authorizes and directs particular

actions and remedies, the administrative process does not create ‘entitlements’ subject to

constitutional protections under the Fourteenth Amendment.” Id. (emphasis in original).

The district court thus correctly held that Virginia Code § 15.2-1717.1 does not create a

liberty interest that the Due Process Clause protects. Roanoke City Code § 21-32(b) does

not create a protected liberty interest for the same reasons. Accordingly, even assuming

that the form designating the Roanoke Police Department as the trespass agent for the

Valley View Walmart is defective, as Appellant alleges, the complaint fails to state a claim

for relief.

Appellant argues that dismissal is nonetheless inappropriate because the “source of

[his] federal constitution-protected liberty interest is the right and privilege of free

7 movement American colonists enjoyed when the federal Constitution was adopted.”

Appellant’s Reply Br. at 3. In essence, the crux of Appellant’s argument is that because

this is a civil rights case, this court must overlook the fact that the operative complaint

unambiguously alleges that the liberty interest Appellee allegedly violated was “created

by Va. Code § 15.2-1717.1.” J.A. 63 (emphasis supplied). However, although we are

“especially solicitous of the wrongs alleged” in a civil rights complaint, Edwards v. City of

Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), no litigant is exempt from the

well-established rule “that parties cannot amend their complaints through briefing or oral

advocacy.” S. Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC,

713 F.3d 175, 184 (4th Cir. 2013).

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.