Say what you will about the roster of Trump apologists being hosted by the Volokh Conspiracy (and I will say plenty if given the chance), but at least Eugene Volokh continues to surface truly interesting cases. (Ilya Somin remains worth reading as well.)

And this one is one for the record books. Possibly the first First Amendment case that involves one human and one horse. And it’s no regular horse, which is why this is a First Amendment lawsuit. The horse in question was ridden by Ocean City (Maryland) police officer Matthew Foreman.

What started as a nuisance call quickly became something else once plaintiff Reniel Meyler realized just how easily Officer Foreman’s mount could be taken off task.

The opinion [PDF] issued by the Maryland federal court recounts the evening’s events that led to this lawsuit. Reniel Meyler finished his shift at work and then headed to a local bar. Having only arrived shortly before the Cork Bar’s closing, Meyler downed a beer and then headed out to the parking lot to socialize with a couple of his friends, Yokimba Bernier and Christoper Clarke. While waiting in the car for Clarke to return from taking a walk with another friend, Meyler and Bernier listened to some music at high volume.

How high? That’s not on the record. It was apparently loud enough to “draw the attention” of two Ocean City PD officers, one of which was riding a horse named “Moose.” As the officers (and their horse) approached, the pair turned down the volume.

Most of the ensuing encounter was captured on Officer Foreman’s body camera. What it captured was something out of the ordinary. But first, the ordinary stuff.

Immediately upon Foreman’s arrival on the scene, the following exchange took place.

Foreman: Where in the world do you guys think this is OK at 2 o’clock in the morning?

Meyler: Jamaica.

Foreman: Well then go back to Jamaica, cause you can’t do it here.

Bernier: [Inaudible]

Foreman: We can hear you [from] three blocks away, and you can go to jail for noise in Ocean City. OK? You guys really want to go to jail for noise?

Bernier: [Inaudible]

Foreman: No, not a ticket. Jail. Like, handcuffs. Jail. Noise.

Having established the baseline and his control of the scene, Foreman hung around to make sure the music didn’t again rise to law-breaking levels. However, it soon became clear that although Foreman had control of the scene, he no longer had control of his horse.

About 1 minute and 50 seconds into the video, Meyler turns towards Moose and makes some clicking sounds. Moose does not immediately react, but about five seconds later he visibly moves his head and appears to take a step or two in response to the clicking.

!!!

Officer Foreman reined in Moose to stop the movement. As the ruling notes, the horse appeared to “remain calm for the remainder of the video.” Not so for everyone else. Some more arguing about noise levels occurred with Officer Foreman delivering some noises of his own.

In response to either Bernier or Meyler, Foreman says “no, no, you don’t wave your hands at me, boom boom boom you go to these.” As he says “boom boom boom” Foreman takes out a pair of handcuffs and brandishes them in front of Meyler and Bernier, implying they will be arrested.

Shortly after Officer Foreman’s “boom boom boom,” Meyler went back to his click click click, earning this response from the horse’s boss:

“Stop antagonizing my horse. You’re not allowed to do that. You can’t interrupt my animal.”

Just an amazing set of sentences, each one more amazing than the last. Even in context, there’s nothing quite like a cop telling a civilian not to “interrupt” their “animal.”

Then Meyler’s friend (Bernier) decided to up the ante by declaring it wasn’t illegal to “interrupt” Foreman’s horse, pointing out that people pet police horses and talk to them or whatever without being threatened with an arrest. Au contraire, said Officer Foreman, albeit in different words. And different actions.

TL; DR: Meyler continued to click. Foreman continued to yell stuff about “interfering” with his horse. The end result was Meyler being arrested for antagonizing a cop, even if the cop said it was all about antagonizing an animal that remained pretty much unperturbed for the running time of the body cam video.

The official charges were “failure to obey a lawful order” and “interference with a police animal.” The charges were voluntarily dismissed by the prosecutor a month after the arrest. The lawsuit followed, with Meyler arguing being arrested for clicking at a police horse violated his First Amendment rights.

While Meyler still has the opportunity to pursue this in court (the complaint was dismissed without prejudice), it’s unlikely any of his federal constitutional claims have any chance of being found in his favor. (He still has a state law claim he can pursue, however.) And he certainly won’t be allowed to claim his free speech rights were violated when he was first told, then arrested for talking to a cop horse.

Unsurprisingly, there’s absolutely no precedent establishing this particular form of expression:

Here, Meyler has not pointed to a single case involving an arrest made under Ocean City’s police animal interference ordinance, or, for that matter, any case anywhere involving any claims of wrongful arrest related to alleged interference with police animals. Nor has he pointed to any cases involving the application of First Amendment rights to human-animal interactions.

With probable cause supporting the arrest and the complete lack of precedent in play, qualified immunity protects Officer Foreman from this lawsuit. And the court’s not about to use this case to establish Dr. Doolittle-esque precedent protecting people who say things to or make noises at government animals. Meyler’s moonshot has failed. He’ll just have to live with the less satisfying victory of having the charges dismissed. And, given the circumstances, that’s probably the better of both options.