Hulbert v. Pope goes to Trial!

We at Maryland Shall Issue send our deepest condolences to the family and friends of Jeff Hulbert. Jeff passed this morning (5/3/2021) surrounded by his loved ones after a lengthy and valiant battle against cancer. He was an outspoken and stalwart proponent of individual rights and a fierce supporter of the Right to Keep and Bear Arms. Jeff founded the Patriot Picket, a group that "hits the bricks" with stylized signs and pointed political messages in promotion and defense of those rights. Please keep the Hulbert family in your thoughts and prayers as we remember and honor Jeff.

A Decision Three Long Years in the Making (and it still isn't over)

The First Amendment protects the right to advocate so in fundamentally important ways, the First Amendment helps protect the Second Amendment. The Fourth Amendment protects against unreasonable searches and seizures, including unlawful arrests. So when two MSI members, Jeff and Kevin Hulbert, were arrested on the sidewalks of Annapolis on the evening of February 5th, 2018 for holding edgy signs that criticized the powers that be in the General Assembly, MSI and the Hulberts swiftly filed suit in federal court in Baltimore for a violation of their First Amendment and Fourth Amendment rights. The arresting officers were named as defendants, but they are represented by counsel from the State Attorney General's Office.

Video of arrests on 2/5/2018 - "1st Amendment Under Attack"

In an opening gambit, the defendants first moved to dismiss the complaint for failure to state a claim, but that effort failed when the Court didn't buy it. Then extensive discovery ensured, which was delayed with the pandemic. That discovery showed that the arrests that night stemmed from a call from the Governor's mansion to have the group moved because the "mansion" did not want to be bothered with questions or attempts at conversations by the protestors. Everyone (including the defendants and other officers at the Capitol Police) admitted that these orders came from the "mansion," but, amazingly, no one at the "mansion" could identify who gave the orders. We did discover that such orders happen as often as twice a month, or whenever someone at the "mansion" decides that the "mansion" does not want to deal with completely peaceful protestors lawfully exercising their First Amendment rights. We can only wonder at the identity of this "mansion" person.

When discovery was finally completed, defendants once again sought dismissal, this time through a motion for summary judgment. That effort likewise failed on Friday, April 23, 2021, when the Court issued an opinion denying the State's motions for summary judgment on our First Amendment and Fourth Amendment constitutional claims. The Court held that there were "disputed issues" of fact that precluded summary judgment on our First Amendment claim (unlawful interference with the First Amendment right to protest on the public sidewalk) and the Fourth Amendment claim (arrests were made without probable cause of any crime) with respect to the arresting officer (Officer Pope). In so holding, the Court also held that there was a "clearly established" First Amendment right to film the police in a public setting and that disputed issues of fact precluded summary judgment for the defendants on whether Officer's Pope's arrest of Kevin Hulbert interfered with that right. Finally, the Court rejected the State's argument that MSI should be dismissed on standing grounds. The Court did dismiss (wrongly in our view) the counts against the Chief of Police, Col. Michael Wilson. 

So, a jury trial against Officer Pope is next. That will take time to happen. By law (the Speedy Trial Act), criminal trials get a priority over civil cases and the pandemic has effectively resulted in a backup of jury trials in civil cases. We hope to get a trial date within the next year. Stay tuned.

Case Documents and History
US District Court for the District of Maryland Case# 1:18-cv-00461-SAG

2/14/18 - Complaint
9/23/19 - MOTION to Quash, MOTION for Protective Order by Boyd K. Rutherford
10/7/19 - RESPONSE in Opposition re MOTION to Quash MOTION for Protective Order
1/31/20 - MOTION for Reconsideration of Lt. Governor Rutherford's Motion to Quash
12/16/20 - Joint MOTION for Summary Judgment on behalf of Defendants
2/10/21 - RESPONSE in Opposition re Joint MOTION for Summary Judgment
2/11/21 - Supplemental to Response in Opposition to Motion
3/5/21 - REPLY to Response to Motion re Joint MOTION for Summary Judgment on behalf of Defendants
4/22/21 - Memorandum Opinion
4/22/21 - ORDER granting in part and denying in part Defendants' Motion for Summary Judgment
5/20/21 - Defendants' Notice of Interlocutory Appeal as to 88 Memorandum Opinion, 89 Order on Motion for Summary Judgment
6/21/21 - ORDER STAYING CASE pending the outcome of the interlocutory appeal

See Full Docket for Free in CourtListener

US Court of Appeals for the Fourth Circuit Case# 21-1608

5/24/21 - Docketed
6/8/21 - Briefing Order
7/2/21 - Appellant's Amended Suggestion of Death
7/6/21 - Appellees' Motion to Substitute Party
7/6/21 - Appellees' Response to Suggestion of Death
7/7/21 - Order Granting Motion to Substitute Party
7/16/21 - Defendant-Appellant's Response Re: Suggestion of Death
7/19/21 - Defendants' MOTION to suspend briefing pending resolution of a motion for reconsideration, to extend filing time for opening brief and appendix until August 18, 2021
7/19/21 - Order Granting Motion to extend filing time
8/6/21 - Appellee’s Opposition To Appellant’s Motion To Suspend Briefing Pending Resolution Of The Motion For Reconsideration Or, In The Alternative, For A 30-Day Extension
8/18/21 - Order Directing Parties to File Memoranda
9/1/21 - Appellees’ Memorandum Regarding Jurisdiction
9/1/21 - Defendant-Appellant Sgt. Brian T. Pope’s Memorandum On Jurisdiction
9/7/21 - Order Remanding Case in regards to Motion for Reconsideration

On Remand to US District Court for the District of Maryland

9/7/21 - Plantiffs' Opposition to Defendant's Motion for Reconsideration
9/28/21 - Reply Memorandum In Support Of Defendant Sgt. Brian T. Pope’s Motion For Reconsideration
10/6/21 - Opinion Denying Defendant Sgt. Pope's Motion for Reconsideration
10/6/21 - Order Denying Defendant Sgt. Pope's Motion for Reconsideration

On Appeal to the US Court of Appeals for the Fourth Circuit Case# 21-1608

11/12/21 - Briefing Schedule - Joint appendix and opening brief due 1/24/22. Response due 2/23/22.
1/24/22 - Brief of Appellant (State)
2/23/22 - Appellees Consent Motion to Extend Time
2/23/22 - Appellees Motion to Dismiss Appeal
2/24/22 - Response Requested on Appellees Motion to Dismiss by 3/7/22
2/24/22 - Order on Appellees Consent Motion to Extend Time
3/1/22 - Brief of Amicus Curiae National Police Association in Support of Defendant-Appellant Brian T. Pope
3/7/22 - Appellant's Opposition To Appellees’ Motion To Dismiss Appeal
3/10/22 - NOTICE by Clayton R. Hulbert and Kevin Hulbert that a reply will be filed
3/14/22 - Appellee’s Reply To Defendants’ Opposition To Motion To Dismiss
3/24/22 - Brief of Appellees
3/28/22 - CORRECTED Brief of Appellees
4/15/22 - MOTION by Brian T. Pope to extend filing time for reply brief until May 6, 2022
4/15/22 - ORDER filed granting Motion to extend filing time. Number of days granted: 18. Any Reply brief due 05/06/2022.
5/6/22 - Reply Brief of Appellant

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Phone:  410-849-9197