No redress, no suit: Fourth Circuit sends BLM protester packing

RICHMOND, Va. (CN) — A Fourth Circuit panel on Tuesday said a North 
Carolina protester, who argued his stayed conviction should not block his 
First Amendment case against the sheriff who arrested him, should not have 
sought declaratory relief from the appeals court.

Maurice Wells Jr. was found guilty of two misdemeanor offenses — failure 
to disperse and disorderly conduct — in a North Carolina district court 
after a 2020 Black Lives Matter protest. He has appealed to the county’s 
superior court, where his prior conviction is stayed and he is entitled to 
an entirely new trial, but a new trial has yet to occur.

In 2023, Wells filed suit against Alamance County Sheriff Terry Johnson, 
claiming Johnson arrested him over his political views and for using 
profanity, which he claims is protected speech.

Wells argued that his stayed conviction means it should not be considered 
probable cause for his arrest and that his First Amendment case should be 
allowed to continue. Wells claimed Johnson selectively arrested him after 
he failed to leave a park but did not arrest counterprotesters who also 
did not cooperate with instructions to leave.

But a Fourth Circuit panel decided Wells lacks standing to seek a 
declaratory judgment before an appellate court.

“Maurice Wells poses a tricky question,” U.S. Circuit Judge Julius 
Richardson said in the 27-page opinion. “He got arrested at a protest in 
2020 and was convicted of multiple charges in state court. He appealed the 
conviction. And now, while the appeal remains pending, he sues to 
challenge the arrest — claiming that it was retaliation for his speech. 
His question for us is whether, in this situation, the state-court 
conviction precludes a federal-court finding that the arrest violated his 
rights."

But the federal courts are intended to “redress injuries,” or provide 
remedy or compensation, the Donald Trump appointee said, and Wells is 
seeking a judgment declaring his arrest unconstitutional without saying 
how it would resolve his arrest or help him in other ways, including 
warding off future arrest or prosecution. 

The panel vacated the lower court’s decision that originally dismissed 
Wells’ case, finding that the federal courts lack jurisdiction. It 
remanded the case and ordered it back to state court.

Both parties now agree the case doesn’t belong in federal court.

“Wells’ arrest is a cognizable injury, and Johnson caused it. His 
prosecution is cognizable, too, assuming that Wells could trace it to 
Johnson. But to get a declaration that Johnson violated his First 
Amendment rights, Wells needs something more,” Richardson said. “He must 
show that ‘the remedy he sought ... can redress the constitutional 
violation that [he] alleges occurred.’” 

But Richardson said Wells cannot get constitutionally adequate redress 
through his request. 

Wells could get redress from prosecution by getting a declaration to fend 
off being prosecuted in the future. However, Wells has “sued the wrong 
defendant,” Richardson said, because it is North Carolina, not Johnson or 
Alamance County, that is prosecuting him and would prosecute him again in 
the future. 

Wells could likewise not get relief through preventing a future arrest 
over protesting because it would be an “offensive, rather than defensive, 
use of a declaratory judgment,” and Wells has not given the court reason 
to believe he will protest again in the same place or be arrested again by 
Johnson. 

Richardson wrote that the redress also cannot address the past injury — 
Wells’ 2020 arrest — as declaratory judgment is “a preclusive weapon that 
either deters litigation or helps win it.” Plaintiffs who have suffered 
injury need compensation, and a declaratory judgment is not compensatory, 
he said.  

“Without some unusual situation where the plaintiff can show that he needs 
the preclusive effect of a declaration even though the injury he complains 
of has already occurred, a declaration aimed into the past would be only 
hortatory — a judicial announcement that a past event broke the law — and 
therefore provide no redress,” Richardson said. 

While the Fourth Circuit has never ruled out the possibility that a 
plaintiff can redress a past injury by seeking a declaration alone, the 
court has “serious doubts that this works,” Richardson said, and the 
plaintiff would still need to show the preclusion would help redress his 
injury in future litigation. 

But Wells filed because North Carolina’s statute of limitations had almost 
run out, and as it has expired, he won’t be able to bring a new action, 
and there wouldn’t be a preclusive effect from a declaratory judgment, he 
added. Wells had already waited nearly four years for his superior court 
case to be heard before he filed his First Amendment case. 

Johnson wanted the lower court’s decision upheld, saying Wells’ 
convictions invalidate his lawsuit, even if the conviction is later 
vacated. The fact that Wells was convicted in one of the state’s district 
courts shows he had probable cause to arrest him, he said. Wells wanted 
the order reversed and the case remanded so it could continue. 

Wells’ claims will likely continue in a superior court in North Carolina.

Counsel for Wells declined to comment on the panel's decision. Johnson and 
his attorney did not reply to a request for comment.

U.S. Circuit Court Judge Paul Niemeyer, a George H.W. Bush appointee, and 
Senior U.S. Circuit Court Judge Henry Floyd, a Barack Obama appointee, 
also served on the panel and joined Richardson’s opinion.

https://www.courthousenews.com/no-redress-no-suit-fourth-circuit-sends-
blm-protester-packing/