Case 1:23-cv-00667 Document 1 Filed 10/06/23 Page 1 of 11 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE

EDGAR IGNACIO OREA, individually,

Plaintiff,
FY
vs. Civil Action No.

OFC. D.R. BARKER, individually, and

Defendants.

COMPLAINT

This complaint, brought pursuant to 42 U.S.C. Section 1983, the First Amendment to the

United States Constitution, arises out of the defendants’ commission of retaliation against the

Plaintiff’s First Amendment rights, as well as his Fourth Amendment rights, on or about October

8, 2021 in Bluefield, Mercer County, West Virginia, within the Southern District of West

Virginia, Bluefield Division.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and 1343.

PARTIES

1. The Plaintiff, Edgar Ignacio Orea, was at all times relevant hereto, a resident of

Bluefield, Mercer County,West Virginia.

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2. Defendant, Ofc. D. R. Barker was at all times relevant hereto a law enforcement

officer employed by the Bluefield Police Department, and was at all times relevant hereto acting

under the color of law, having an address of 100 S. Mercer St., Bluefield, West Virginia 24701.

3. Defendant, City of Bluefield, is and was at all times relevant hereto, a political

subdivision of the State of West Virginia, having an address of 200 Rogers Street, Bluefield,

West Virginia 24701.

FACTS

4. Plaintiff is, and was at all times relevant to his complaint, a Christian minister

working as missionary primarily in McDowell County, West Virginia.

5. Plaintiff and his wife initially moved to the area in 2013 to began their missionary

work. Over the years Plaintiff has had several encounters with members of the Bluefield Police

Department. These encounters occurred while Plaintiff was street preaching. At various times he

was told that he couldn’t be on the sidewalk engaging in those activities, and he had several

items such as signs, banners, and a camera confiscated by Bluefield police officers.

6. Specifically, on the evening of October 8, 2021 Plaintiff was engaging in peaceful

pro-life advocacy on public property outside of Mitchell Stadium in Bluefield, West Virginia

during a high school football game. As part of his pro-life advocacy, Plaintiff was displaying a

large sign which depicted a graphic photo of an aborted fetus.

7. At some point that evening Plaintiff was approached by Defendant Barker who at

the time was on duty, in uniform, and acting under color of law in his capacity as a Bluefield

City police officer. Defendant Barker advised Plaintiff that he had been approached by the

school’s principal who expressed concern about the graphic nature of the photo and children

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being exposed to it. Defendant Barker then ordered Plaintiff to take the sign down because it was

deemed to be “explicit and indecent content not suitable for young children to be viewing at a

high school football game.”

8. Plaintiff advised Defendant Barker that he was engaging in protected speech, that

he had a constitutionally protected right to be there, and that he respectfully refused to take the

sign down. Defendant Barker continued to insist that Plaintiff take the sign down and remove it

from the premises. Plaintiff continued to respectfully refuse to remove the sign from the

premises, but he did lay it down. Despite Plaintiff having lain the sign down, Defendant Barker

continued to insist that Plaintiff completely remove the sign from the premises. Plaintiff

continued to respectfully refuse, and Defendant Barker proceeded to arrest him for obstructing

and disorderly conduct.

9. After placing Plaintiff under arrest, Defendant Barker proceeded to confiscate

Plaintiff’s sign, camera, and phone. Plaintiff was then transported to the Bluefield Police Station

for processing. Plaintiff ultimately remained in jail overnight.

10. Both charges were subsequently dismissed on April 15, 2022, but Plaintiff’s sign

was never returned to him.

COUNT ONE - CIVIL RIGHTS VIOLATION UNDER 42 U.S.C. 1983

11. Plaintiff incorporates by reference all of the previous paragraphs.

12. The United States Supreme Court has held that “An individual may assemble,

preach, distribute literature, picket and protest on public property. The General Order defines

public property to include public streets, sidewalks, parks, and other common areas so

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designated. First Amendment activity on public property is fully protected subject only to

reasonable time, place and manner restrictions. Time, place and manner restrictions may be

placed on First Amendment activity so long as those regulations are content neutral, serve a

significant governmental interest, and leave open ample alternative channels of communication.”

Saltz v. City of Frederick, 538 F. Supp. 3d 510 (D. Md. 2021).

13. The Sixth Circuit Court of Appeals has stated that the First Amendment fully

protects displays of aborted fetuses, even when children may be disturbed by such displays.

Center for Bio-Ethical Reform, Inc. v. City of Springboro , 477 F. 3d 807 (6th Cir. 2007).

14. Likewise the Ninth Circuit Court of Appeals reached the same conclusion in a

case involving an anti-abortion protester who drove by a middle school in a truck covered with

large photos of aborted fetuses. Center for Bio-Ethical Reform, Inc. v. Los Angeles County

Sheriff Dept., 533 F. 3d 780 (9th Cir. 2008).

15. The United States Supreme Court has also held that “The First Amendment

constitutionally protects a [persons] right to display signs communicating their views on

abortion, and the fact that the messages conveyed by those communications may be offensive to

their recipients does not deprive them of constitutional protection.” Hill v. Colorado, 530 U.S.

703 (2000)

16. The First Amendment prohibits government officials from subjecting an

individual to retaliatory actions, including criminal prosecutions, for speaking out. To establish a

claim of retaliation for exercising one’s First Amendment rights, a plaintiff must show that (10

the plaintiff was engaged in a constitutionally protected activity; (2) the defendant’s actions

caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from

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continuing to engage in the activity; and (3) the plaintiff’s exercise of the constitutionally

protected activity substantially motivated the defendant’s adverse action. Mt. Healthy City

School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274 (1977).

17. “Retaliation by public officials against the exercise of First Amendment rights is

itself a violation of the First Amendment.” Fraternal Order of Police Hobart Lodge #121, Inc. v.

Hobart, 864 F.2d 551, 553 (7th Cir. 1988); see also Reichert v. Draud, 701 F.2d 1168, 1170 (6th

Cir. 1983); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (quoted by

Davison at 364).

18. The law is well settled in the Fourth Circuit that retaliation under color of law for

the exercise of First Amendment rights is unconstitutional, and “retaliation claims” have been

asserted in various factual scenarios. Meyers v. City of Cincinnati, 979 F.2d 1154 (6th Cir.1992)

(firemen dismissed); Boger v. Wayne County, 950 F.2d 316 (6th Cir.1991) (county employee in

Medical Examiner's Office transferred); Draud, 701 F.2d at 1170 (change in public school

teacher's duties); Hildebrand v. Board of Trustees, 662 F.2d 439 (6th Cir.1981) (university

professor denied tenure), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982);

Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (prisoner retaliated against

for seeking access to courts).

19. A facially content-based restriction on political speech in a public forum must be

subjected to exacting scrutiny. Burson v. Freeman, 504 U.S. 191 (1992).

20. Here, it is indisputable that Plaintiff was engaging in protected speech and was

wrongfully arrested for doing so. It is also indisputable that Defendant Barker unconstitutionally

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restricted Plaintiff’s speech, to the extreme point of arresting him based solely upon the content

of his message.

21. As a direct and proximate result of Defendant Barker’s actions, Plaintiff has

suffered and continues to suffer damages, including, but not limited to, emotional injuries, and

damage to his reputation.

22. Plaintiff is entitled to recover for his injuries.

COUNT ONE - VIOLATION OF THE FOURTH AMENDMENT

23. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

24. On October 8, 2021, Defendant Barker, effected the warrantless arrest of the

Plaintiff for an alleged violation of W. Va. Code § 61-5-17 - obstructing an officer, and W. Va.

Code § 61-6-1b - disorderly conduct.

25. Defendant Barker seized the Plaintiff and arrested him without a warrant and

without probable cause that he had committed any criminal offense.

26. At the time of the Plaintiff’s arrest, the facts and circumstances within Defendant

Barker’s knowledge, were not sufficient to warrant a reasonably prudent person to believe in the

circumstances shown that Plaintiff had violated any criminal statute or offense. Therefore there

was no probable cause at the time of his arrest to justify the seizure.1

1 Although in criminal cases the question of whether a police officer had probable cause to make an arrest
is a question for the court to decide, there is substantial authority that in § 1983 cases this issue should be
submitted to the jury upon proper instructions defining probable cause. Thacker v. City of Columbus, 328
F.3d 244 (6th Cir. 2003); Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998); McKenzie v. Lamb,
738 F.2d 1005 (9th Cir. 1984); Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996).

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27. At no time did Plaintiff commit any act constituting a violation of any statute or

offense.

28. Plaintiff was charged with obstructing an officer, which provides:

Any person who threats threats, menaces, acts or otherwise, forcibly or illegally hinders
or obstructs, or attempts to hinder or obstruct, any law-enforcement officer, probation
officer or parole officer acting in his or her official capacity is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred
dollars, and may, in the discretion of the court, be confined in the county or regional jail
not more than one year.

29. The Fourth Amendment protects "[t]he right of the people to be secure in their

persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. A seizure is

unreasonable under the Fourth Amendment if it is not based on probable cause. Dunaway v. New

York , 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). Thus, "[i]f a person is arrested

when no reasonable officer could believe ... that probable cause exists to arrest that person, a

violation of a clearly established Fourth Amendment right to be arrested only upon probable

cause ensues." Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001) (citation omitted).

30. "Probable cause is determined by a ‘totality-of-the-circumstances’ approach."

Smith v. Munday , 848 F.3d 248, 253 (4th Cir. 2017) (citing Illinois v. Gates , 462 U.S. 213, 230,

103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). The inquiry "turns on two factors: ‘the suspect’s

conduct as known to the officer, and the contours of the offense thought to be committed by that

conduct.’ " Id. (quoting Graham v. Gagnon , 831 F.3d 176, 184 (4th Cir. 2016) ). While the court

looks to the information available to the officer on the scene at the time, the courts apply an

objective test to determine whether a reasonably prudent officer with that information would

have thought that probable cause existed for the arrest. Graham , 831 F.3d at 185. Evidence

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sufficient to secure a conviction is not required, but probable cause exists only if there is

sufficient evidence on which a reasonable officer at the time could have believed that probable

cause existed for the arrest. Wong Sun v. United States , 371 U.S. 471, 479, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963).

31. On the charge of allegedly obstructing an officer, in violation of WV Code §

61-5-17(a), the plain language of the statute establishes that a person is guilty of obstruction

when he, “by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or

attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting

in his or her official capacity.” The Fourth Circuit recently examined the statute:

As West Virginia’s high court has "succinct[ly]" explained, to secure a conviction under
section 61-5-17(a), the State must show "forcible or illegal conduct that interferes with a
police officer’s discharge of official duties." State v. Davis, 229 W.Va. 695, 735 S.E.2d
570, 573 (2012) (quoting State v. Carney, 222 W.Va. 152, 663 S.E.2d 606, 611 (2008)).
Because conduct can obstruct an officer if it is either forcible or illegal, a person may be
guilty of obstruction "whether or not force be actually present." Johnson , 59 S.E.2d at
487. However, where "force is not involved to effect an obstruction," the resulting
obstruction itself is insufficient to establish the illegality required by section 61-5-17.
Carney , 663 S.E.2d at 611. That is, when force is not used, obstruction lies only where
an illegal act is performed. This is because "lawful conduct is not sufficient to establish
the statutory offense." Id.

Of particular relevance to our inquiry here, West Virginia courts have held that "when
done in an orderly manner, merely questioning or remonstrating with an officer while he
or she is performing his or her duty, does not ordinarily constitute the offense of
obstructing an officer." State v. Srnsky, 213 W.Va. 412, 582 S.E.2d 859, 867 (2003)
(quoting State ex rel. Wilmoth v. Gustke, 179 W.Va. 771, 373 S.E.2d 484, 486 (W. Va.
1988)).

32. Clearly, Plaintiff’s conduct during his interaction with Defendant Barker in no

way satisfies the elements necessary to prove obstruction as evidenced by the subsequent

dismissal of that charge.

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33. Plaintiff was also charged with disorderly conduct. W. Va. Code §61-6-1b defines

disorderly conduct as “Any person who, in a public place, any office or office building of the

state of West Virginia, or in the State Capitol complex, or on any other property owned, leased,

occupied or controlled by the State of West Virginia, a mobile home park, a public parking area,

a common area of an apartment building or dormitory, or a common area of a privately owned

commercial shopping center, mall or other group of commercial retail establishments, disturbs

the peace of others by by violent, profane, indecent or boisterous conduct or language or by the

making of unreasonably loud noise that is intended to cause annoyance or alarm to another

person, and who persists in such conduct after being requested to desist by a law enforcement

officer acting in his or her lawful capacity, is guilty of disorderly conduct, a misdemeanor and,

upon conviction thereof, may be confined in jail for twenty-four hours or fined not more than

$100; Provided, that nothing in this subsection should be construed as a deterrence to the lawful

and orderly public right to demonstrate in support or protest of public policy issues.”

34. Plaintiff’s conduct at the time of his arrest in no way constitutes disorderly

conduct. Plaintiff, at no time, acted in a violent, profane, or indecent manner. Neither did he

engage in the use of boisterous conduct or language nor did he make an unreasonably loud noise

intended to cause annoyance or alarm to another person. Plaintiff was merely engaging in a

constitutionally protected protest of abortion, and despite the opinion of Defendant Barker, the

content of his sign was also protected speech. This charge was also subsequently dismissed.

35. As a direct and proximate result of Defendant’s actions as set forth above,

Plaintiff suffered harm, including attorney fees and expenses, for which he is entitled to

recover.

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COUNT THREE- MONELL CLAIM AGAINST

36. The previous paragraphs are hereby incorporated by reference as though fully

restated herein.

37. The City of Bluefield which is the political subdivision under which the Bluefield

Police Department operates, adopted an official policy, custom, and practice whereby officers

would routinely intimidate, harass, and intentionally deter Plaintiff, and others like him, from

engaging in lawful and Constitutionally protected speech, in the manner as alleged herein.

38. The actions of Defendant Barker, an employee of the City of Bluefield, of

engaging in deterring lawful First Amendment protected speech, and in the unlawful arrest and

search and seizure of Plaintiff and his property on October 8, 2021, were taken in furtherance of

the said official policy, custom, and practice of the Bluefield Police Department.

39. As a direct and proximate result of the said policy, custom and practice, the

Plaintiff was damaged as described herein, for which he is entitled to recover.

PRAYER FOR RELIEF

WHEREFORE, based on the above stated facts, the Plaintiff respectfully requests that

this Honorable Court award:

1. Damages against the Defendants in an amount to be determined at trial which will

fairly and reasonably compensate the Plaintiff for:

a. Past, present and future pain and suffering;

b. Loss of enjoyment of life;

c. Psychological and emotional distress;

d. economic damages, including the loss of wages;

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e. Any other compensatory damages to be proven at trial;

f. Punitive damages against the individual Defendants in an amount to be

determined at trial;

g. Reasonable attorney fees and costs;

h. Any other relief that this Court deems is just and fair;

i. All other damages provided by law;

PLAINTIFF DEMANDS A TRIAL BY JURY

EDGAR IGNACIO OREA

/s John H. Bryan_______________
John H. Bryan (WV Bar No. 10259)
411 Main Street
P.O. Box 366
Union, WV 24983
(304) 772-4999
Fax: (304) 772-4998
jhb@johnbryanlaw.com

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