Gregory Robinson v. The City of South Charleston , 662 F. App'x 216 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2200
GREGORY ROBINSON,
Plaintiff - Appellee,
v.
THE CITY OF SOUTH CHARLESTON; S.W. MILLER, a/k/a Steven W.
Miller; E.M. PETERSON, a/k/a Eric M. Peterson; E.R. MOYER,
a/k/a Engracio R. Moyer,
Defendants - Appellants.
Appeal from the United States District Court for the Southern
District of West Virginia at Charleston. Thomas E. Johnston,
District Judge. (2:14-cv-00330)
Argued: September 21, 2016 Decided: October 24, 2016
Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.
Vacated in part and remanded by unpublished opinion. Judge
Harris wrote the opinion, in which Chief Judge Gregory and Judge
Niemeyer joined.
ARGUED: Molly Underwood Poe, PULLIN, FOWLER, FLANAGAN, BROWN &
POE, PLLC, Charleston, West Virginia, for Appellants. Alexander
Deane McLaughlin, THE CALWELL PRACTICE, LC, Charleston, West
Virginia, for Appellee. ON BRIEF: Benjamin Dean Adams, THE
CALWELL PRACTICE, LC, Charleston, West Virginia, for Appellee.
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PAMELA HARRIS, Circuit Judge:
Plaintiff Gregory Robinson alleges that police officers in
South Charleston, West Virginia, violated his Fourth Amendment
rights by twice arresting him without probable cause. Because
the district court incorrectly applied a subjective standard to
the probable cause question, we vacate and remand for the
requisite objective analysis of probable cause.
I.
A.
This case began with a report of employee theft at a
Walmart in South Charleston, West Virginia, in July of 2012.
Officer Steven Miller of the South Charleston police department
responded, and met with Paul Higginbotham, Walmart’s Asset
Protection Manager. Higginbotham informed Miller that store
surveillance video had captured three employees, or
“associates,” stealing Apple iPods. The first video, from July
6, 2012, included images of two Walmart associates, Jeremy
Hartwell and Jirald Davis, and showed Hartwell removing iPods
from a display case. In the second, filmed on July 10, a third
associate – Robinson – also is on the scene, and Hartwell again
is seen taking iPods from the case.
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Miller sought an arrest warrant for Robinson on July 19,
2012, and submitted an affidavit setting out the facts in
support of probable cause (the “First Affidavit”). According to
Miller’s affidavit, the July 10 surveillance video showed
Robinson and Hartwell walking toward the display case, followed
by Davis, who “begins to talk to [Robinson].” J.A. 1055. While
Hartwell “select[s] merchandise” from the display case and
conceals it in his pocket, “Davis continues to observe
[Hartwell] and distract the other associate” – presumably,
Robinson – “from noticing the activity.” Id.
A Kanawha County magistrate judge subsequently issued an
arrest warrant for Robinson. Robinson, who was on vacation at
the time, voluntarily turned himself in to the police on July
30, 2012. The charges against Robinson were dismissed without
prejudice, following a preliminary hearing at which neither
Miller nor witnesses from Walmart appeared.
Walmart’s Higginbotham urged the police to resolve the case
against Robinson, and on November 20, 2012, the police again
sought an arrest warrant. Officers Eric Peterson and Engracio
Moyer filed the second application, accompanied by a slightly
amended affidavit (the “Second Affidavit”). In this version,
video of the July 10 episode shows Hartwell entering the scene
with Robinson “present,” while Davis speaks with Robinson and
“appears to distract the other associates” – presumably,
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associates other than Robinson – “from noticing the activity.”
J.A. 1059 (emphasis added).
A magistrate judge again issued an arrest warrant, and
Robinson once again turned himself in on the warrant. This
time, the relevant police officers – Peterson and Moyer – were
present at the hearing. But they were never called to testify,
and at the conclusion of the hearing, the magistrate judge
dismissed the charges against Robinson, without prejudice, for
lack of probable cause.
B.
In December 2013, Robinson brought a § 1983 action against
Officers Miller, Peterson and Moyer (the “individual
defendants”), alleging two Fourth Amendment violations: first,
that the officers had sought arrest warrants based on affidavits
that failed to establish probable cause; and second, that the
officers had arrested Robinson without probable cause. Robinson
also sued the City of South Charleston, claiming that the City
was liable under § 1983 for its failure to train its police
officers with respect to probable cause. See Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658 (1978). Finally,
Robinson raised state-law malicious prosecution claims against
each of the individual defendants.
The defendants moved for summary judgment on all of
Robinson’s claims. With respect to Robinson’s Fourth Amendment
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claims under § 1983 – central to this appeal – the individual
defendants argued, in part, that they were entitled to qualified
immunity. Robinson opposed the defendants’ motion and sought
summary judgment on his Fourth Amendment deficient-affidavit
claims against the individual defendants.
The district court granted Robinson’s motion as to Officer
Miller and denied summary judgment to the defendants. The First
Affidavit, the district court held, was a “textbook example of
an affidavit that utterly fails to provide a probable cause
basis” for an arrest warrant. J.A. 1075. The affidavit did no
more than put Robinson in the vicinity of illegal activity at
his own workplace, and actually provided the “exculpatory
statement” that another employee “distract[ed]” Robinson during
the theft. J.A. 1076. Because Officer Miller’s decision to
seek a warrant based on this “patently insufficient” affidavit,
id., was objectively unreasonable, the district court concluded,
Miller was not protected by qualified immunity.
The Second Affidavit, filed by Officers Peterson and Moyer,
fared little better. Though it no longer contained “exculpatory
language,” J.A. 1079, it continued to rest entirely on
Robinson’s presence at the scene, without including any
information suggesting actual involvement in criminal activity.
But despite finding that the Second Affidavit failed to
establish probable cause, the district court denied summary
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judgment to Robinson on this claim. Because Peterson and Moyer
consulted with a prosecutor before seeking the arrest warrant,
the district court held, they might be entitled to qualified
immunity – a question that could not be resolved on summary
judgment because of factual disputes regarding the nature of
that consultation.
The district court turned next to Robinson’s allegation
that he was arrested without probable cause, treating it as a
separate Fourth Amendment claim analogous to the common-law tort
of malicious prosecution. The critical question, the court
held, was whether the information known to the officers at the
time of Robinson’s arrests amounted to probable cause of
criminal activity. And on that question, too, the district
court found “pervasive discrepancies” in the record, J.A. 1102,
precluding an award of summary judgment to the individual
defendants on their qualified immunity defense. Among those
issues of material fact, the court held, was whether the
officers had “interpreted” the Walmart surveillance video as
showing evidence of Robinson’s involvement in criminal activity.
J.A. 1104.
Finally, the district court denied the defendants’ motion
for summary judgment on Robinson’s § 1983 Monell claim against
the City and on his state-law claims against the individual
defendants. Defendants timely noted this appeal.
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II.
A.
Under 28 U.S.C. § 1291, we have jurisdiction to review
“final decisions” of the district courts. As a general rule, a
decision like the one below – granting the plaintiff partial
summary judgment and denying summary judgment to the defendants
– would not qualify as a final decision because it does not
“end[] the litigation on the merits,” resolving all of the
parties’ claims and leaving “nothing for the court to do but
execute the judgment.” Porter v. Zook, 803 F.3d 694, 696 (4th
Cir. 2015) (citation and internal quotation marks omitted); see
Bellotte v. Edwards, 629 F.3d 415, 426 (4th Cir. 2011) (holding
partial grant of summary judgment is not “final decision” for
purposes of 28 U.S.C. § 1291).
But “notwithstanding the absence of a final judgment,” we
do have jurisdiction to review “a district court’s denial of a
claim of qualified immunity, to the extent that it turns on an
issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);
Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007). Our review
is limited to questions of law; in this posture, we may not
review a district court determination that “the pretrial record
sets forth a ‘genuine’ issue of fact for trial.” Gould v.
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Davis, 165 F.3d 265, 268 (4th Cir. 1998) (citation and internal
quotation marks omitted).
We review de novo the district court’s denial of summary
judgment and qualified immunity. Am. Civil Liberties Union of
Maryland, Inc. v. Wicomico Cty., Md., 999 F.2d 780, 784 (4th
Cir. 1993).
B.
We begin – and end, as explained below – with Robinson’s
claim that he was arrested without probable cause, and the
district court’s decision to deny the individual defendants
summary judgment on their qualified immunity defense. The
defendants argue that the court committed a legal error in
denying qualified immunity, applying a subjective rather than
objective standard to the question of probable cause. We agree.
“The Fourth Amendment prohibits law enforcement officers
from making unreasonable seizures, and seizure of an individual
effected without probable cause is unreasonable.” Brooks v.
City of Winston-Salem, N.C., 85 F.3d 178, 183 (4th Cir. 1996).
Whether there is probable cause to justify an arrest turns on
the “facts and circumstances” known to the officer at the time
of the arrest, Michigan v. DeFillippo, 443 U.S. 31, 37 (1979),
and whether those known facts give rise to a “fair probability”
that the suspect has committed a crime, Florida v. Harris, 133
S. Ct. 1050, 1055 (2013) (defining probable cause).
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Critically, probable cause is measured objectively, not
subjectively. United States v. Gray, 137 F.3d 765, 769 (4th
Cir. 1998) (defining probable cause as “objective standard of
probability that reasonable and prudent persons apply in
everyday life”). While we “examine the facts within the
knowledge of arresting officers to determine whether they
provide a probability on which reasonable and prudent persons
would act[,] we do not examine the subjective beliefs of the
arresting officers to determine whether they thought that the
facts constituted probable cause.” Id. (emphasis in original).
The district court appears to have done just that, taking a
distinctly subjective approach to the probable cause
determination. All of the individual defendants pointed to the
images captured on the Walmart surveillance video as a critical
factor giving rise to probable cause that Robinson had engaged
in criminal activity. But the district court did not watch the
video, though it was made a part of the record, and so the court
could not determine for itself whether the video contributed to
probable cause as an objective matter. Instead, the district
court considered whether the officers “interpreted” the video as
suggestive of Robinson’s involvement in the theft. J.A. 1104;
see id. at 1099, 1109 n.13. And it was on this point – whether
the officers themselves believed that the video indicated
Robinson’s complicity – that the district court identified a
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factual dispute precluding the award of summary judgment,
reasoning that the descriptions of the video provided in the
First and Second Affidavits suggested that the officers did not
interpret the video in a way that incriminated Robinson.
Under the correct Fourth Amendment standard, how the
individual defendants subjectively interpreted the surveillance
video is not a “material fact.” Cf. Bostic v. Schaefer, 760
F.3d 352, 370 (4th Cir. 2014) (“Summary judgment is appropriate
when ‘there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’”)
(quoting Fed. R. Civ. P. 56(a)). The only relevant question is
whether “reasonable and prudent persons,” viewing the video
along with any other evidence within the knowledge of the
officers at the time of Robinson’s arrest, would be warranted in
believing to a fair probability that Robinson had engaged in
criminal activity. Gray, 137 F.3d at 769. And if the question
is sufficiently close that an objectively reasonable officer
could conclude that probable cause existed, then the individual
defendants are entitled to qualified immunity. See, e.g.,
Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001).
Accordingly, we cannot affirm the district court’s denial
of qualified immunity to the officers on Robinson’s claim that
he was arrested without probable cause. Instead, we vacate that
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ruling and remand to the district court so that it may undertake
the requisite objective inquiry into probable cause.
We recognize that a district court finding that Robinson’s
arrest was supported by probable cause might affect Robinson’s
other claims, as well. For instance, probable cause is
sufficient to justify a public arrest under the Fourth
Amendment, regardless of the validity of the arrest warrants
obtained by the officers or any deficiencies in the affidavits
supporting them. See Graves v. Mahoning Cty., 821 F.3d 772,
774-76 (6th Cir. 2016). And whether the officers in fact
arrested Robinson without probable cause also may be relevant to
Robinson’s failure-to-train claim against the City and to his
state-law malicious prosecution claims. We express no view on
those issues, and leave it to the district court to consider in
the first instance what effect, if any, its disposition of
Robinson’s claim that he was arrested without probable cause has
on the remainder of this case.
VACATED IN PART AND REMANDED
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