USCA4 Appeal: 22-1826 Doc: 51 Filed: 11/15/2023 Pg: 1 of 27

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1826

ABRAR OMEISH,

Plaintiff - Appellee,

v.

STACEY ANN KINCAID, Sheriff, Fairfax County,

Defendant - Appellant,

and

J PATRICK, Officer, Fairfax County Police Department,

Defendant.

No. 22-1878

ABRAR OMEISH,

Plaintiff - Appellant,

v.

J PATRICK, Officer, Fairfax County Police Department,

Defendant - Appellee,

and

STACEY ANN KINCAID, Sheriff, Fairfax County, USCA4 Appeal: 22-1826 Doc: 51 Filed: 11/15/2023 Pg: 2 of 27

Defendant.

----------------------------------

PUBLIC ACCOUNTABILITY,

Amicus Supporting Appellant.

No. 22-1936

ABRAR OMEISH,

Plaintiff - Appellant,

v.

STACEY ANN KINCAID, Sheriff, Fairfax County,

Defendant - Appellee,

and

J PATRICK, Officer, Fairfax County Police Department,

Defendant.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:21-cv-00035-LO-IDD)

Argued: September 22, 2023 Decided: November 15, 2023

Before NIEMEYER, THACKER, and BENJAMIN, Circuit Judges.

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No. 22-1826 dismissed and remanded; No. 22-1878 affirmed; and No. 22-1936 vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Thacker and Judge Benjamin joined.

No. 22-1826. ARGUED: Philip Corliss Krone, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellant. Hannah Mullen, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellee. ON BRIEF: Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellant. Lena F. Masri, Gadeir I. Abbas, Justin Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellee.

No. 22-1878. ARGUED: Justin Mark Sadowsky, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellant. Dawn Boyce, MCGAVIN, BOYCE, BARDOT, THORSEN & KATZ, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Lena F. Masri, Gadeir I. Abbas, Hannah Mullen, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellant. Emily K. Blake, MCGAVIN, BOYCE, BARDOT, THORSEN & KATZ, P.C., Fairfax, Virginia, for Appellee. Athul K. Acharya, PUBLIC ACCOUNTABILITY, Portland, Oregon, for Amicus Curiae.

No. 22-1936. ARGUED: Gadeir Ibrahim Abbas, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellant. Philip Corliss Krone, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellee. ON BRIEF: Lena F. Masri, Justin Sadowsky, Hannah Mullen, CAIR LEGAL DEFENSE FUND, Washington, D.C., for Appellant. Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellee.

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NIEMEYER, Circuit Judge:

These three appeals were taken from orders entered in a single action arising from

a traffic stop in northern Virginia.

On the evening of March 5, 2019, Fairfax County Police Officer Justun Patrick

stopped Abrar Omeish for failing to stop at a red light before turning right. During the

traffic stop, Ms. Omeish failed to comply with Officer Patrick’s numerous commands, and

Patrick then attempted to arrest her. As Omeish resisted, Officer Patrick deployed a burst

of pepper spray to her forehead, which enabled him to take her into custody. While booking

her at the Fairfax County Adult Detention Center, Sheriff Stacey Kincaid’s officers

required Omeish, a Muslim who wears a hijab, to remove it against her will for the purpose

of taking booking photographs, as was prescribed by the Sherriff Office’s standard

operating procedures.

Omeish commenced this action, claiming that Officer Patrick used excessive force

in arresting her, in violation of her Fourth and Fourteenth Amendment rights, and that

Sheriff Kincaid was liable for her office’s policy that disregarded Omeish’s religious

beliefs and practices by requiring her to remove her hijab, in violation of the First

Amendment and the Religious Land Use and Institutionalized Persons Act of 2000.

Omeish sought, among other relief, damages for her excessive force claim and an

injunction against Sheriff Kincaid, requiring her to destroy and have destroyed all

photographs taken of Omeish without her hijab.

The district court dismissed Omeish’s claim against Officer Patrick on the basis of

qualified immunity, but it granted Omeish a permanent injunction, requiring Sheriff

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Kincaid to destroy and use her best efforts to have destroyed all copies of the booking

photographs of Omeish without her hijab. Thereafter, all photographs were in fact

destroyed, prompting the court to conclude that the injunction’s requirements had been

fulfilled. Finally, the court denied Omeish’s motion under

(b) for

attorneys fees, applying the standard for assessing costs under Federal Rule of Civil

Procedure 54(d)(1).

Sheriff Kincaid filed an appeal (No. 22-1826), seeking to reverse the district court’s

order that she violated Omeish’s rights under the Religious Land Use and Institutionalized

Persons Act; Omeish filed an appeal (No. 22-1878) from the court’s order dismissing her

claim against Officer Patrick; and Omeish filed an appeal (No. 22-1936) from the district

court’s order denying her motion for attorneys fees. As to Sheriff Kincaid’s appeal, we

dismiss it as moot and remand with instructions to vacate the district court’s judgment. As

to Omeish’s appeal of the dismissal of her claim against Officer Patrick, we affirm. And

as to Omeish’s appeal of the district court’s order denying her motion for attorneys fees,

we vacate and remand.

I

After observing Omeish commit a red-light violation at about 8:00 p.m. on March

5, 2019, Officer Patrick pulled her over on a busy two-lane highway. After she stopped,

her car was straddling the bike lane and the parking shoulder. When Officer Patrick arrived

at the driver’s side window, he had to stand next to the solid white line separating the bike

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lane from the traffic lane of the highway, and cars passing the officer had to cross over the

center line to give him space. This location, especially at night, posed a risk to the officer.

As several cars passed near him, Officer Patrick greeted Omeish, identified himself,

and advised her that he had stopped her because she had run a red light. He then asked

Omeish for her license and registration. Rather than comply with that request, Omeish

stated that she did not believe she had run the red light. Officer Patrick repeated his request

for her license and registration, and Omeish continued not to comply, repeating her denial

of any violation and adding that she had to get to a meeting. Over the next couple of

minutes, Officer Patrick made six separate requests for her documentation, and Omeish

failed to comply with any of them. Officer Patrick then advised Omeish that she could

either produce her license and registration or get out of the car and be arrested. Omeish

did neither, stating that the options were “not fair.” The officer then proceeded to arrest

her, demanding that she step out of the car. Despite some thirteen separate requests that

she get out of the car, Omeish refused. Officer Patrick then retrieved his handcuffs and

reached into the vehicle to remove her physically. As he pulled on her arm and continued

to instruct her some fourteen more times to get out of the car, she resisted, only then

offering to produce her license. But she continued to refuse to exit the car. A struggle

ensued and Omeish leaned toward the passenger side, bringing a dark object toward Officer

Patrick, which he could not identify but which was her phone. At that point, given the

struggle at the edge of a busy highway at night, Officer Patrick chose to use pepper spray

to effectuate the arrest, deploying one burst directed at Omeish’s hairline. Officer Patrick

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was then able to remove her from the car and handcuff her. He transported her to the

Fairfax County Adult Detention Center, where she was booked.

Under the Fairfax County Sheriff’s Office Standard Operating Procedures, officers

were required to capture booking photographs of arrestees without wearing any religious

head coverings. When Omeish heard that she would be required to remove her hijab, she

protested, repeatedly telling the officers that her religious beliefs prohibited her from

appearing publicly or being photographed without her hijab. In particular, she explained

that she wore her hijab in the presence of men with whom she was not related and had done

so since she was a young child.

The officers nonetheless made clear to Omeish that she needed to remove her hijab.

While a female deputy undertook the booking process, Omeish remained throughout the

process in the view of male deputies, including Officer Patrick. In an attempt to give

Omeish some privacy, two male officers held up a small blanket that partially obscured the

view of Omeish on one side, but on the other side, male deputies still had a view of her.

Omeish asked if she could pull her hijab back behind her ears without taking it off.

The officers refused, however, and the female deputy removed the hijab from Omeish’s

head and took at least two photographs of Omeish without her hijab. The officers then

allowed Omeish to loosely drape the scarf back over her head before taking one more

photograph. After the booking process was finished, Omeish was told that she was free to

leave.

Almost two years later, in January 2021, Omeish commenced this action against

Sheriff Kincaid in her official capacity, the Fairfax County Police Department, and Officer

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Patrick in his individual capacity, alleging violations of her rights under the First and

Fourteenth Amendments of the Constitution and the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. Thereafter,

Omeish amended her complaint to add Chief David M. Roher of the Fairfax County Police

Department as a defendant in his official capacity. In her complaint, Omeish alleged that

her religious beliefs had been unlawfully burdened when she was required to remove her

hijab for the booking photographs. She also alleged that Officer Patrick used excessive

force in arresting her with pepper spray.

The district court dismissed in part the claims against Sheriff Kincaid and in full the

claims against Police Chief Roher. Following discovery, Officer Patrick filed a motion for

summary judgment on Omeish’s excessive force and First Amendment claims, and Omeish

filed a motion for summary judgment against Sheriff Kincaid on her First Amendment and

RLUIPA claims.

On Officer Patrick’s motion, the court granted him summary judgment, finding that

he was protected by qualified immunity because existing precedent did not support a

conclusion that he violated a right that was clearly established. On Omeish’s motion for

summary judgment against Sheriff Kincaid on her RLUIPA claim, the court concluded that

Sheriff Kincaid had failed to adduce evidence demonstrating a genuine dispute of fact as

to whether the retention of the booking photographs was the least restrictive means of

furthering a compelling government interest. Accordingly, the court awarded Omeish

narrow injunctive relief — the destruction of all copies of the photographs of Omeish

without her hijab. Not only did the court order that Sheriff Kincaid destroy all copies in

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her office’s possession, but also that she issue written requests to all other entities she had

reason to believe were custodians or possessors of the photograph — which turned out to

include the Virginia State Police, the Fairfax County Police Department, and the FBI —

asking that they also destroy the photographs. Sheriff Kincaid reported to the court later

that all the offending photographs had been destroyed, including those that had been

forwarded to third parties.

Following the entry of final judgment, Omeish filed a motion under

(b) for attorneys fees in the amount of $251,636. Applying the standard for

awarding costs under Federal Rule of Civil Procedure 54(d)(1), the district court denied

Omeish’s motion for attorneys fees.

Sheriff Kincaid filed an appeal (No. 22-1826), challenging the district court’s

summary judgment against her, which held that she had violated the provisions of

RLUIPA. Omeish filed an appeal (No. 22-1878) from the district court’s order dismissing

her claim for excessive force against Officer Patrick. And Omeish also filed an appeal

(No. 22-1936) from the district court’s order denying her attorneys fees.

II

We address first Sheriff Kincaid’s appeal (No. 22-1826) of the district court’s

permanent injunction dated July 22, 2022, ordering her to destroy and request destruction

of all booking photographs of Omeish without her hijab and to report back to the court

confirming that the injunction had been complied with. Following Sheriff Kincaid’s

reports of compliance with the injunction in full, the district court reported that Omeish’s

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counsel had “agreed that nothing more was necessary to be accomplished,” and it

effectively ended the court’s supervision of the injunction.

As the basis for entering the injunction, the district court granted Omeish’s motion

for summary judgment on her RLUIPA claim, concluding, after setting forth the applicable

jurisprudence, that

no factfinder could hold that there is a compelling interest that would not be served by the less restrictive retention of a photograph of Omeish wearing a hijab. As Sheriff Kincaid has pointed to no evidence that using a photograph of Omeish covered with a hijab could not be used for the asserted identification purposes, there is no genuine dispute to this element of the RLUIPA claim. Because it is the Defendant’s burden to prove this element, Sheriff Kincaid cannot prevail on Summary Judgment . . . .

* * *

[T]here is no compelling government interest in the retention of [Omeish’s] uncovered photograph. For this reason, summary judgment is granted for the Plaintiff and Omeish will be awarded the narrow injunctive relief she seeks.

On appeal, Sheriff Kincaid raises several challenges to the court’s award of

summary judgment, arguing that it “was the result of misapplying the law of the case,

statutory standards, procedural standards, and legal standards.” She argues that there were

disputed facts and that the district court incorrectly applied RLUIPA’s burden shifting

provisions.

Omeish, however, filed a “Suggestion of Mootness” in this court, arguing that since

“the photographs have now all been destroyed,” “[t]his case is moot,” and Sheriff Kincaid’s

appeal should be dismissed. Sheriff Kincaid opposes dismissal, arguing that her appeal is

not moot for three reasons.

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First, Sheriff Kincaid contends that her appeal challenges more than the order

granting injunctive relief. She notes that in her complaint Omeish asked for a declaratory

judgment and that “the district court’s award of summary judgment declar[ed] a RLUIPA

violation.” Thus, she argues, “even if the issue of injunctive relief [were] moot,” there is

still a live ruling “declaring there was a violation of RLUIPA” (emphasis added), and the

parties remain affected by that declaration. We, however, reject the argument. While it is

true that Omeish sought declaratory relief, injunctive relief, and damages in her complaint,

the only relief that the district court granted her was a narrow permanent injunction

requiring the destruction of the offending photographs. Nowhere in the district court’s

opinion did it suggest that it was entering a declaratory judgment on the RLUIPA claim.

The court did, to be sure, find that Sheriff Kincaid had violated Omeish’s rights under

RLUIPA, but that finding was a necessary prerequisite for the entry of the injunction, as

the court clearly explained.

Second, Sheriff Kincaid notes that Omeish’s appeal of the district court’s denial of

her motion for attorneys fees “is dependent on the summary judgment ruling declaring a

violation of RLUIPA,” and “[w]ithout the award of summary judgment, Omeish would

have absolutely no basis to seek attorney’s fees to begin with.” (Emphasis added). Thus,

she argues, the judgment in this regard also remains a live one. Again, we disagree for two

reasons. First, as already pointed out, there was no summary judgment declaring a

violation of RLUIPA. The summary judgment was entered to support the entry of the

court’s order granting injunctive relief. Second and even more telling, Omeish’s request

for attorneys fees is not interlocked with the summary judgment for the purpose of

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Article III jurisdiction. Such a position contravenes the Supreme Court’s clear statements

that “[a] request for attorney’s fees or costs cannot establish standing because those awards

are merely a ‘byproduct’ of a suit that already succeeded, not a form of redressability.”

Uzuegbunam v. Preczewski,

(2021) (quoting Steel Co. v. Citizens for a

Better Env’t,

(1998)); see also Lewis v. Cont’l Bank Corp.,

(1990) (acknowledging that a party’s “interest in attorney’s fees is, of course,

insufficient to create an Article III case or controversy where none exists on the merits of

the underlying claim”); Int’l Bhd. of Teamsters, Local Union No. 639 v. Airgas, Inc.,

(4th Cir. 2018) (relying on this “well established” rule to dismiss an appeal

as moot).

Third and finally, Sheriff Kincaid argues that the injunction itself does not contain

any deadline for the destruction of photographs. As a consequence, she reasons, “if in the

future Omeish believes that another entity or individual had obtained a copy of the

photograph, then Sheriff Kincaid [could] still be subject to the injunction’s requirement

that she use her best efforts to have that photograph destroyed.” That prospect, however,

is simply too speculative to overcome mootness. The risk that some additional copy of the

photograph exists unbeknownst to the parties is exceedingly remote. The parties agreed

that all known photographs had been destroyed, and Omeish stated, as reported by the

district court, that “nothing more was necessary to be accomplished.” See, e.g., Bunting v.

Mellen,

(2004) (Stevens, J., statement respecting the denial of

certiorari) (denying certiorari because the case was moot despite a remote chance that a

retired superintendent could return to his post at a school).

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Accordingly, we agree with Omeish that Sheriff Kincaid’s appeal is moot.

In such a circumstance, “[o]ur ‘customary practice when a case is rendered moot on

appeal is to vacate the moot aspects of the lower court’s judgment.’” Catawba Riverkeeper

Found. v. N.C. Dep’t of Transp.,

(4th Cir. 2016) (quoting Norfolk S. Ry.

Co. v. City of Alexandria,

(4th Cir. 2010)); see also Eden, LLC v. Justice,

(4th Cir. 2022) (quoting Hirschfeld v. Bureau of Alcohol, Firearms,

Tobacco & Explosives,

(4th Cir. 2021)). The parties have offered no

reason or suggestion why we should deviate from this practice, and the procedural history

of this case suggests that we should follow it. Because the district court enforced the

injunction and denied Sheriff Kincaid’s motion to stay the injunctive order and because we

also denied a stay, Kincaid was compelled to comply with a presumptively valid injunctive

order. As a result, she was frustrated from securing appellate review of the district court’s

summary judgment ruling, which thus provides a “sufficient reason to vacate” the judgment

below. Catawba Riverkeeper Found.,

(quoting U.S. Bancorp Mortg. Co.

v. Bonner Mall P’ship,

, 25 n.3 (1994)).

Accordingly, we dismiss Sheriff Kincaid’s appeal as moot and remand with

instructions that the district court vacate its summary judgment on Omeish’s RLUIPA

claim against Sheriff Kincaid.

III

We next address Omeish’s appeal (No. 22-1878) of the district court’s order

granting summary judgment to Officer Patrick on her claim that he used excessive force

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during her arrest by deploying a burst of pepper spray to her forehead. The district court

held that Officer Patrick did not violate a right that was clearly established and that he

therefore was entitled to qualified immunity. Because of that holding, the court did not

address whether the facts showed that Officer Patrick’s use of force was objectively

unreasonable, such that it violated Omeish’s Fourth Amendment rights.

The district court set forth the undisputed facts upon which it relied to make its

decision that the right was not clearly established. It stated:

The material undisputed facts of the arrest make this case particularly distinct from the legal precedent cited. These facts include that Omeish was pulled over on the side of the road; the traffic stop occurred at night; Officer Patrick approached the vehicle on the driver’s side with his back to the roadway and significant traffic; and that Officer Patrick requested that Omeish present her driver’s license up to sixteen times; Omeish did not comply with these requests, and Officer Patrick attempted to physically remove Omeish from the vehicle. While the degree to which Omeish resisted this attempt to remove her may be disputed, it is undisputed that Omeish did not comply with Officer Patrick. At this point Patrick utilized his pepper spray and removed her from the vehicle.

This situation with which Officer Patrick was presented was undoubtedly “tense, uncertain, and rapidly evolving,” [and] [m]ost importantly to the analysis of Omeish’s arrest is that it took place on the side of a “busy roadway.”

* * *

The fact that the arrest in the current case took place on the side of a road, with passing traffic, undoubtedly indicates that Patrick had more potential hazards to consider than an officer who made a similar arrest away from a roadway. Although Omeish argues that she presented no danger to the larger police officer, there is no persuasive argument that the resistance of a police officer’s commands and physical interactions, in that situation, is not inherently dangerous. While Omeish herself might not have been a direct physical threat, the undisputed record shows that it is reasonable for Officer Patrick to assume that a prolonged struggle during a roadside arrest is inherently dangerous to both Omeish and Officer Patrick.

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(Citations omitted).

The principles of qualified immunity are well established. Law enforcement

officers are entitled to qualified immunity from claims under

unless

(1) they violated a statutory or constitutional right and (2) the right was clearly established

at the time. See District of Columbia v. Wesby,

, 62–63 (2018); Pearson v.

Callahan,

(2009). And the “clearly established” requirement means that

“at the time of the officer’s conduct, the law was sufficiently clear that every reasonable

official would understand that what he [was] doing is unlawful.” Wesby,

(emphasis added) (cleaned up). Thus, the law must have placed the constitutionality of the

officer’s conduct “beyond debate,” such that “all but the plainly incompetent or those who

knowingly violate the law” are protected.

(cleaned up).

The Supreme Court has repeatedly focused on the second requirement, emphasizing

that to hold officers liable, the unlawfulness of their actions must be clearly established,

which the Court has defined by several measures. The law must be both (1) settled, Hunter

v. Bryant,

(1991) (per curiam), and (2) controlling, Ashcroft v. al-Kidd,

, 741–42 (2011); see also Wesby,

. Also, the law must not be

established at a high level of generality but must apply clearly to the particular

circumstances of the officer’s conduct. See Plumhoff v. Rickard,

(2014).

And a precedent is too general if the unlawfulness of the officer’s conduct “does not follow

immediately from the conclusion that [the rule] was firmly established.” Anderson v.

Creighton,

(1987). Finally, the Court has stressed that “[s]uch

specificity is especially important” for claims charging officers with excessive force under

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the Fourth Amendment, Mullenix v. Luna,

(2015) (per curiam), leading the

Court to emphasize the need to identify caselaw addressing similar circumstances — cases

“where an officer acting under similar circumstances . . . was held to have violated the

Fourth Amendment,” White v. Pauly,

(2017) (per curiam); see also

Mullenix,

. The Court has noted that this careful comparison is important

because of the great number of variations in fact involved in seizures implicating the Fourth

Amendment. See Ziglar v. Abbasi,

(2017); Mullenix,

.

For this reason, it has recognized that officers often find it difficult to determine how the

Fourth Amendment’s general reasonableness standard applies to the particular factual

circumstances confronting them. See Ziglar,

.

With these principles in hand, we turn to determine whether, based on the

undisputed facts of record in this case, the district court erred in finding that Officer Patrick

was qualifiedly immune from Omeish’s claim of excessive force.

Whether the force used in making an arrest during a traffic stop is excessive must

be determined by a standard of objective reasonableness. See Graham v. Connor,

(1989). And objective reasonableness, in turn, is measured by the

“proportionality of the force in light of all the circumstances.” Waterman v. Batton,

(4th Cir. 2005) (quoting Rowland v. Perry,

(4th Cir. 1994)).

The relevant circumstances include, among others, the severity of the offense, the risks

posed to the officers in effecting the arrest, the extent to which the person being arrested is

resisting or attempting to evade arrest, and whether the officer applied an established

technique. See Graham,

.

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In this case, Officer Patrick conducted the traffic stop for a minor traffic infraction,

which should not ordinarily require the use of force. But the relevant factors also include

that Omeish did not behave as normally expected during such a stop: she resisted providing

the officer with her driver’s license and registration despite numerous commands to do so;

she rejected the officer’s option to either provide the required documentation or be arrested;

she disobeyed the officer’s numerous commands to exit the car to be arrested; and she

resisted the officer’s physical efforts to arrest her while he stood near oncoming traffic at

night. After more than four minutes of this resistance, Officer Patrick deployed a single

burst of pepper spray to Omeish’s forehead, enabling him to place her in handcuffs.

The use of pepper spray can, in given circumstances, be objectively unreasonable

and therefore constitute excessive force, in violation of the Fourth Amendment. But

whether the use of pepper spray is unreasonable depends on the particular circumstances

confronting the officer. In Park v. Shiflett, we addressed the use of pepper spray during a

seizure and found that its use was indeed unreasonable in the circumstances presented

there.

(4th Cir. 2001). In Park, a female bystander, observing her

husband being arrested with the use of force, ran towards him, leading the officers to grab

her, twist her arm behind her back, throw her against a building wall, and handcuff her.

Then, after she had been secured, officers discharged pepper spray twice into her eyes at

short range, in violation of the governing Rules and Regulations Manual.

at 848 & n.1.

We concluded that in those circumstances, the use of pepper spray “was indeed excessive.”

; see also

(Traxler, J., concurring in part and dissenting in part) (same).

This controlling precedent thus informed officers that the use of pepper spray in connection

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with an arrest does, in the particular circumstances of Park, amount to excessive force, in

violation of the Fourth Amendment.

Our decision in Park, however, does not squarely govern the case before us. See

Wesby,

(noting that precedent must “clearly prohibit the officer’s conduct

in the particular circumstances before him”). Unlike the officer in Park, Officer Patrick

used pepper spray to take control of the arrestee, and he did not use it after placing Omeish

in handcuffs. But while those distinctions are material and tend to support a conclusion

that Patrick’s use of force was not excessive, other circumstances complicate the analysis.

For example, Omeish insists that she was at most passively resisting, that her slight frame

posed no physical threat to the larger officer, and that the pepper spray was unnecessary

because, by the time it was deployed, she had offered Patrick her license numerous times.

In light of these circumstances, we choose not to determine, as a matter of law, whether

Officer Patrick’s use of pepper spray violated vel non the Fourth Amendment.

Rather than decide the qualified immunity issue under the first prong — whether

Officer Patrick actually violated the Fourth Amendment — we elect to resolve it under the

second prong — whether a violation was clearly established such that every officer in

Officer Patrick’s circumstances would have understood that he was violating the Fourth

Amendment. See Pearson,

(holding that a court may, without deciding

whether there was a constitutional violation, look to the question of whether that right was

“clearly established”). For the following reasons, we conclude that in this case, the law

was not clearly established.

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As noted, when assessing whether a right is clearly established, we look to Supreme

Court and Fourth Circuit authority to “consider whether officers within our jurisdiction

have been provided fair warning, with sufficient specificity, that their actions would

constitute a deprivation of an individual’s constitutional rights.” Betton v. Blue,

, 193–94 (4th Cir. 2019). When categorizing like cases, we must take care to carve at

the joints. For, as noted, qualified immunity kicks in “unless existing precedent ‘squarely

governs’ the specific facts at issue.” Kisela v. Hughes,

(2018) (per

curiam) (quoting Mullenix,

). And careful comparisons are especially

necessary in cases involving excessive force because highly variable and fast moving

circumstances inform whether the force was excessive. See City of Tahlequah v. Bond,

, 12–13 (2021) (per curiam).

In this case, the issue, defined by the circumstances, is whether Omeish had a clearly

established constitutional right not to be pepper sprayed after repeatedly failing to comply

with the officer’s commands during a lawful roadside stop and resisting his attempts to

arrest her in a location dangerous to the officer. Thus, the question is whether a reasonable

officer in Officer Patrick’s position would have had adequate notice that his use of pepper

spray violated Omeish’s right.

The only case in our circuit that even addresses whether the use of pepper spray in

connection with a Fourth Amendment seizure is reasonable is Park, but that decision does

not sufficiently inform officers about the use of pepper spray in Officer Patrick’s

circumstances. Critically, in Park, the pepper spray was used after the woman was secured

in handcuffs, and its use was not only unneeded, but it also violated governing police

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procedures. See Park,

& n.1. Those circumstances differ materially from

those here, where the officer faced an escalating situation over the course of four minutes

in which Omeish disobeyed his orders both to produce documentation and to exit the car

and resisted his efforts to arrest her. The officer used the pepper spray only once with a

burst at her forehead, while in the process of attempting to take control over her person.

Moreover, the officer’s use of pepper spray here complied with governing police

procedures, as later found during a hearing held by the Chief of Police. Park thus does not

inform officers in the circumstances facing Officer Patrick that the use of pepper spray was

clearly unlawful — i.e., that it was “beyond debate.”

To argue that the law was clearly established in this circuit, Omeish relies primarily

on our decision in Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst,

(4th Cir. 2016). In Armstrong, after a mentally ill patient eloped from a hospital, police

officers sought to execute an involuntary commitment order by physically seizing him and

returning him to the hospital. Armstrong resisted, however, by wrapping himself around a

pole with both his arms and his legs. As officers tried to pry him off the pole, he continued

to resist, and the officers were unsuccessful in removing him by that method. After 30

seconds of struggling and warning Armstrong that he would be tased, the officers then

tased him five times. After he gave up his grip, the officers held him face down on the

ground where he died from asphyxiation. While we found the officers qualifiedly immune,

we ruled that tasing was excessive force in the particular circumstances confronting the

officers. See

. We did not hold that the use of a taser always amounted to

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excessive force but instead defined Armstrong’s right as the “right not to be subjected to

tasing while offering stationary and non-violent resistance to a lawful seizure.”

.

We cannot conclude that the Armstrong holding would inform every officer —

beyond debate — that it would be unlawful to use pepper spray during a traffic stop in the

circumstances that Officer Patrick faced. Armstrong involved (1) tasers, (2) the seizure of

a mentally ill man who had committed no crime, (3) the use of a taser after only 30 seconds,

and (4) the use of a taser five times against someone passively resisting. While we did, in

Armstrong, refer to our decision in Park as an example of excessive force, see Armstrong,

, we did not hold or even suggest that Park’s holding clearly established

that the use of tasers in Armstrong amounted to excessive force.

Omeish has attempted to rely on other Fourth Circuit cases, but they are yet less

relevant. In Meyers v. Baltimore County, an officer used excessive force when he tased a

person after he had already been restrained and was not actively resisting arrest.

, 733–34 (4th Cir. 2013). In Rowland, we held force excessive when the officer

punched the arrestee, threw him to the ground, and applied a wrestling maneuver in

circumstances where there was no danger to “the larger, trained police officer.”

. In Smith v. Ray, we found the force was excessive when the officer punched the

arrestee, threw her to the ground after she pulled her arm away as the officer attempted to

handcuff her, jumped on her, handcuffed her, and then “yanked her to her feet by her hair.”

, 98–99 (4th Cir. 2015).

None of these cases inform reasonable officers about whether the use of pepper

spray in the circumstances of this case crossed constitutional lines. As the Supreme Court

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has repeatedly emphasized, the cases must be factually similar so that the officer

understands how the legal determination of excessive force “will apply to the factual

situation the officer confronts.” Bond, 595 U.S. at 12–13 (cleaned up). The Supreme Court

has “stressed the need to identify a case where an officer acting under similar circumstances

was held to have violated the Fourth Amendment.” Wesby,

(cleaned up).

And the Fourth Circuit precedents cited by Omeish clearly do not meet that standard.

Omeish has also pointed to cases in other circuits that are not controlling in our

circuit but which, nonetheless, are factually more similar than the ones from this court. For

instance, she cites the Ninth Circuit’s decision in Young v. County of Los Angeles,

, 1158–59 (9th Cir. 2011), where the court held that the use of pepper spray on a

nonviolent misdemeanant constituted excessive force. The police officer there had pulled

Young over for failing to wear a seatbelt. When Young exited his truck, walked over to

the officer’s motorcycle, and handed the officer his license and registration, the officer

instructed Young to return to his truck. Young, however, refused and instead sat on the

sidewalk to eat a snack of broccoli. After Young repeatedly balked at the officer’s

commands to return to his truck, the officer pepper sprayed Young while he was seated on

the sidewalk. The court held that the use of pepper spray in those circumstances constituted

excessive force.

But in circumstances yet more similar to those presented here, the Tenth Circuit in

Mecham v. Frazier,

, 1202–04 (10th Cir. 2007), ruled that the use of pepper

spray did not constitute excessive force. In Mecham, the officer pulled Mecham over for

driving five miles over the speed limit and failing to wear a seatbelt. During the stop,

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Mecham initially cooperated with the officer as he advised her why he pulled her over by

complying with the officer’s commands to provide her license and registration. But when

the officer questioned the validity of her license, Mecham answered a cellphone call and

did not comply with the officer’s command to place the phone down. The officer told

Mecham that he would arrest her if she refused to end the phone conversation. When she

refused, the officer called a tow truck. When the tow truck came, Mecham refused to get

out of the vehicle, despite the officer’s command. The officer then used pepper spray to

physically remove her from the vehicle and handcuff her. The encounter occurred on a

narrow shoulder of a busy interstate. The court held that the officer’s use of pepper spray

in those circumstances did not constitute excessive force.

While neither of these cases was controlling in the Fourth Circuit, they nonetheless

indicated to officers generally that whether the use of pepper spray amounts to excessive

force was highly dependent on the particular circumstances and that no rule was well

settled in the circumstances that Officer Patrick faced.

At bottom, we conclude that there was no clearly established legal precedent set by

the Supreme Court, the Fourth Circuit, or the general consensus of persuasive authority

governing the question presented here and so informed a reasonable officer. Accordingly,

we affirm the district court’s order dismissing Omeish’s Fourth Amendment claim based

on qualified immunity.

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IV

Finally, we address Omeish’s appeal (No. 22-1936) of the district court’s order

denying her motion under

(b) for attorneys fees. In her motion, Omeish

claimed that in obtaining the injunction against Sheriff Kincaid, she effected a material

alteration in her relationship with the Sheriff and therefore was a prevailing party with

regard to her RLUIPA claim. She sought $251,636 in attorneys fees and $1,057.76 in non-

taxable costs.

Two days after Omeish filed her motion for attorneys fees, Sheriff Kincaid filed an

objection to Omeish’s “Bill of Costs,” which Omeish had filed two weeks earlier. In the

bill of costs, Omeish requested that $6,605.95 of costs be taxed under Federal Rule of Civil

Procedure 54(d)(1). In opposing Omeish’s bill of costs, Sheriff Kincaid argued that the

taxation of costs “would be unjust due to the closeness and difficulty of the case and limited

value of [Omeish’s] victory.” But at that time, Sheriff Kincaid had not yet filed a response

to Omeish’s motion for attorneys fees, nor was a response then due.

Less than ten days later, on August 25, 2022, the district court, without the benefit

of Sheriff Kincaid’s response to Omeish’s attorneys fees motion, nonetheless denied

Omeish’s § 1988 motion for attorneys fees, applying the standard given by Rule 54(d)(1)

for the taxation of costs.

On appeal, Omeish contends that the district court, which “act[ed] before briefing

on the issue was completed,” “used the wrong test, believing that, like an award of costs,

granting or denying fees was in the District Court’s broad discretion.” She urges that we

reverse and remand for application of the correct standard.

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Sheriff Kincaid agrees that the district court, “in discussing its denial [of Omeish’s

motion for attorneys fees], references a standard applied to bill of costs, rather than [the

§ 1988] standard.” She argues, however, that the court’s denial, “which was sua sponte,

nonetheless provides a sufficient basis for denying attorney’s fees [under the § 1988]

standard.”

Section 1988 provides in relevant part: “In any action or proceeding to enforce a

provision of . . . the Religious Land Use and Institutionalized Persons Act of 2000, . . . the

court, in its discretion, may allow the prevailing plaintiff . . . a reasonable attorney’s fee as

part of the costs . . . .”

(b). But while the language of § 1988 specifies

that such an award falls within the district court’s discretion, that discretion has been

significantly narrowed such that “a prevailing plaintiff should ordinarily recover an

attorney’s fee unless special circumstances would render such an award unjust.” Hensley

v. Eckerhart,

(1983) (emphasis added) (cleaned up); see also N.Y.

Gaslight Club, Inc. v. Carey,

(1980) (noting that the district court’s

discretion in such circumstances “is narrow”); Brandon v. Guilford Cnty. Bd. of Elections,

921 F.3d at 194, 198 (4th Cir. 2019) (noting that “we have not hesitated to reverse district

courts that have found ‘special circumstances’ where none existed”). This narrowing of

discretion was ordered as a matter of public policy — “the policy of facilitating access to

judicial process for the redress of civil rights grievances.” Brandon, 921 F.3d at 198; see

also Hensley,

.

Federal Rule of Civil Procedure 54(d)(1), on the other hand, provides that “costs —

other than attorney’s fees — should be allowed to the prevailing party” unless the court

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otherwise directs. We have held that the Rule creates a “presumption that costs are to be

awarded to the prevailing party” unless the district court finds that the presumption is

overcome “by articulating some good reason for doing so” — i.e., “only when there would

be an element of injustice in a presumptive cost award.” Cherry v. Champion Int’l Corp.,

(4th Cir. 1999) (cleaned up). And “the district court is given discretion

to deny the award.”

Thus, under § 1988(b), a prevailing party should ordinarily be awarded reasonable

attorneys fees unless special circumstances would render them unjust, whereas under Rule

54(d)(1), a prevailing party is presumed to be entitled to an award of costs unless the court

finds an element of injustice in doing so. Of course, § 1988 provides for the award of

attorneys fees in civil rights cases, while Rule 54(d)(1) provides for the presumptive award

of costs, not attorneys fees, in cases generally. By addressing Omeish’s motion under the

incorrect legal standard, the district court erred.

While Omeish invites us to conduct the appropriate analysis under § 1988, we

conclude that it is better for the district court, in the first instance, to do so. Based on the

arguments of the parties, there seem to be issues about whether Omeish is a “prevailing

party,” whether “special circumstances” exist to deny fees, and, of course, the proper

amount of fees to be awarded, if any.

Accordingly, we vacate the district court’s August 25, 2022 order denying Omeish’s

motion for attorneys fees and remand for consideration of her motion under the § 1988(b)

standard.

* * *

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In sum, on No. 22-1826, we dismiss the appeal as moot and remand; on No.

22-1878, we affirm; and on No. 22-1936, we vacate and remand.

IT IS SO ORDERED.

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