Jerome Newkirk, Sr. v. James Enzor , 674 F. App'x 276 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1795
JEROME C. NEWKIRK, SR.,
Plaintiff - Appellee,
v.
JAMES B. ENZOR, individually and as an officer of the South
Carolina Highway Patrol,
Defendant – Appellant,
and
SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY,
Defendant.
No. 15-1797
CATHERINE B. NEWKIRK,
Plaintiff - Appellee,
v.
JAMES B. ENZOR, individually and as an officer of the South
Carolina Highway Patrol,
Defendant – Appellant,
and
SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY,
Defendant.
Appeals from the United States District Court for the District
of South Carolina, at Florence. Richard M. Gergel, District
Judge. (4:13−cv−01634−RMG; 4:13−cv−01635−RMG)
Argued: September 20, 2016 Decided: January 5, 2017
Before NIEMEYER and DIAZ, Circuit Judges, and Irene M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.
Dismissed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Niemeyer and Judge Keeley joined.
ARGUED: Samuel F. Arthur, III, AIKEN BRIDGES ELLIOTT TYLER &
SALEEBY, P.A., Florence, South Carolina, for Appellant.
Christopher P. Kenney, RICHARD A. HARPOOTLIAN, P.A., Columbia,
South Carolina, for Appellees. ON BRIEF: Richard A.
Harpootlian, RICHARD A. HARPOOTLIAN, P.A., Columbia, South
Carolina; Joseph M. McCulloch, Jr., LAW OFFICES OF JOSEPH M.
MCCULLOCH, JR., Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
The underlying claims in these consolidated appeals arise
from James Enzor’s 2012 traffic stop of Catherine and Jerome
Newkirk. Enzor, a former South Carolina Highway Patrol officer,
appeals the district court’s denial of his motions for summary
judgment on the ground of qualified immunity. The district
court denied Enzor qualified immunity because genuine disputes
of material fact existed that precluded entry of summary
judgment. Because those determinations may not be addressed in
an interlocutory appeal, we dismiss the appeals for lack of
jurisdiction.
I.
Our recitation of the facts is guided in part by our review
of the video from the dash-mounted camera in Enzor’s patrol car
and audio from Enzor’s body microphone. See Iko v. Shreve, 535
F.3d 225, 230 (4th Cir. 2008) (citing Scott v. Harris, 550 U.S.
372, 380 (2007)) (“[W]here, as here, the record contains an
unchallenged videotape capturing the events in question, we must
only credit the plaintiff's version of the facts to the extent
it is not contradicted by the videotape.”).
A.
On October 14, 2012, Enzor, on duty with the South Carolina
Highway Patrol, stopped the Newkirks on Interstate 95 in
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Florence County, South Carolina. Enzor told Mrs. Newkirk (the
driver) that she had been traveling at 77 miles per hour in a 55
mile per hour construction work zone. After reviewing Mrs.
Newkirk’s registration and proof of insurance, Enzor determined
that he would “cut [the speed] back to 64 in a 55” in the
traffic citation. Mrs. Newkirk, however, insisted that she had
not been speeding, stating, “I think there is a bit of
discrimination going on here.” Enzor then ordered Mrs. Newkirk
to get out of the car. Mrs. Newkirk complied, stepping to the
rear of the car with Enzor.
In view of the dash cam, Enzor and Mrs. Newkirk engaged in
a largely inaudible discussion, during which Enzor pointed at
Mrs. Newkirk and said, “Let me tell you something right now,”
and Mrs. Newkirk responded, “No.” Enzor then told Mrs. Newkirk
that she was under arrest. He took Mrs. Newkirk’s wrist and
attempted to pull her arms toward him, but Mrs. Newkirk kept her
arms at her sides. Enzor then stepped behind Mrs. Newkirk and
pressed her against the car, twisting her hands and wrists to
pull her hands behind her back. Enzor instructed Mrs. Newkirk
to “quit resisting arrest.” Mrs. Newkirk responded, “I’m not
resisting arrest.” Enzor then called for backup.
At that point, the pair stepped out of the frame of the
dash cam toward the passenger’s side of Enzor’s patrol car.
Enzor repeatedly yelled at Mrs. Newkirk, “Get in the car! Get in
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the car!” Mrs. Newkirk, in turn, called out to her husband and
protested to Enzor “You’re hurting me!”
As Enzor attempted to arrest Mrs. Newkirk, Mr. Newkirk got
out of the car and walked over to Enzor with his hand slightly
raised, speaking inaudibly. Mr. Newkirk contends that he was
simply inquiring about the situation and telling Enzor that
Enzor’s actions were not necessary. Still struggling to
handcuff Mrs. Newkirk, Enzor pointed at Mr. Newkirk, and
instructed him to “Get in the car, sir, get in the car!” Mr.
Newkirk walked back to the car, but stood outside watching Enzor
and Mrs. Newkirk. He did not get back into the car until Enzor
repeated his order. Once inside, Mr. Newkirk left the door
slightly ajar, and kept his head turned toward Enzor and Mrs.
Newkirk.
After Enzor and Mrs. Newkirk stepped out of view of the
dash cam, the video depicts Mr. Newkirk leaning his head out of
the passenger’s side door, yelling at Enzor. Although largely
inaudible, Mr. Newkirk can be heard shouting “Ain’t no reason
for that!” and “We’ll sue them!” and “Shut up!” At that point,
Enzor told Mr. Newkirk that he too was under arrest. With Mrs.
Newkirk handcuffed and in the custody of an officer who
responded to Enzor’s request for backup, Enzor arrested Mr.
Newkirk.
5
The following day, a state magistrate judge issued an
arrest warrant for Mr. Newkirk for the offense of hindering an
officer. In the sworn affidavit accompanying the warrant, Enzor
stated that “[w]hile conducting a routine traffic stop[,] one
Jerome Newkirk did verbally and repeatedly instruct and coerce
the driver of the vehicle to disregard any instructions [Enzor]
was giving her.” J.J.A. 73. 1
B.
The Newkirks brought separate actions in state court
against Enzor and the South Carolina Department of Safety. As
relevant to these appeals, Mr. Newkirk brought a 42 U.S.C. §
1983 false arrest suit alleging that Enzor violated his Fourth,
Fifth, and Fourteenth Amendment rights. Mrs. Newkirk brought a
§ 1983 false arrest and excessive force suit, alleging that
Enzor violated her Fourth, Fifth, and Fourteenth Amendment
rights. The defendants removed the suits to the United States
District Court for the District of South Carolina, and Enzor
subsequently moved for summary judgment in both cases on the
merits and on the basis of qualified immunity.
The district court referred the cases to a magistrate
judge. In Mr. Newkirk’s case, the magistrate judge considered
1
Citations to “J.J.A.” and “C.J.A.” refer, respectively, to
the Joint Appendix filed by the parties in Jerome Newkirk’s case
and Catherine Newkirk’s case.
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whether Enzor had probable cause to arrest Mr. Newkirk for the
South Carolina common-law offenses of hindering an officer or
obstruction of justice. 2 The magistrate judge found that South
Carolina courts have held that words alone can constitute the
offense of hindering an officer and that because Mr. Newkirk’s
“exact words are not entirely clear when viewing the video,” a
genuine issue of material fact existed as to whether Mr.
Newkirk, in failing to immediately obey Enzor’s instructions and
shouting from the car yards away from Enzor and Mrs. Newkirk,
had hindered Enzor’s arrest of Mrs. Newkirk. J.J.A. 340.
Turning to whether Enzor was entitled to qualified
immunity, the magistrate judge identified two constitutional
rights that were clearly established at the time of Enzor’s
alleged misconduct: (1) a Fourth Amendment right to be free from
an arrest without probable cause, and (2) a First Amendment
right of a third party to be free from arrest for criticizing
the arrest of another, absent the use of fighting words. The
2Throughout this litigation, Enzor has relied on three
statutes as justification for Mr. Newkirk’s arrest: (1) S.C.
Code Ann. § 16-5-50 (criminalizing rescuing prisoners or
hindering officers serving a warrant); (2) S.C. Code Ann. § 17-
25-30 (outlining proper sentence where punishment for legal
conviction is not provided by statute); and (3) S.C. Code Ann.
§ 16-9-320 (criminalizing the knowing and willful assault,
opposition, or resistance of a law enforcement officer engaged
in serving legal process). The district court adopted the
magistrate judge’s finding that none of these offenses could
apply to Mr. Newkirk’s conduct.
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magistrate judge recommended denying Enzor qualified immunity
because a question of fact existed as to whether Enzor violated
Mr. Newkirk’s clearly established rights, precluding the court
at the summary judgment stage from determining whether Enzor’s
arrest of Mr. Newkirk was objectively reasonable.
The district court adopted the magistrate judge’s
recommendation as to probable cause and qualified immunity, and
denied Enzor’s motion for summary judgment. The court rejected
Enzor’s argument that the “circumstances of the particular case”
entitled him to qualified immunity, agreeing with the magistrate
judge that the existence of disputed facts, including whether
Mr. Newkirk “interjected himself in the arrest,” precluded
granting summary judgment on the basis of qualified immunity.
In Mrs. Newkirk’s case, however, the district court
declined to adopt the magistrate judge’s report and
recommendation. Considering Mrs. Newkirk’s false arrest claim,
the court found that although Enzor “was motivated solely by a
retaliatory impulse” in arresting Mrs. Newkirk, Enzor was
nonetheless entitled to qualified immunity as a matter of law
because Mrs. Newkirk’s “right to be free of a retaliatory arrest
when separate probable cause exist[ed] to arrest [her] ha[d] not
been clearly enough established to require a reasonable officer
to be aware of it.” C.J.A. 402-03.
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With respect to Mrs. Newkirk’s excessive force claim, the
district court denied Enzor summary judgment on the merits,
finding that Mrs. Newkirk had been cooperative and non-
threatening during the traffic stop, while Enzor “turned rapidly
to physical force.” C.J.A. 405. Turning to the issue of
Enzor’s entitlement to qualified immunity, the court found that
disputed material facts—namely the “verbal exchanges between
[Enzor and Mrs. Newkirk] and the physical struggle that took
place after they moved out of view of the video”—likewise
rendered granting summary judgment on the basis of qualified
immunity inappropriate. C.J.A. 407.
These appeals followed. 3
II.
“[Q]ualified immunity operates to protect law enforcement
and other government officials from civil damages liability for
alleged constitutional violations stemming from their
discretionary functions.” Raub v. Campbell, 785 F.3d 876, 880–
81 (4th Cir. 2015). “Our qualified immunity analysis typically
involves two inquiries: (1) whether the plaintiff has
established the violation of a constitutional right, and (2)
3 The Newkirks moved to dismiss Enzor’s interlocutory
appeals on jurisdictional grounds, and we deferred ruling
pending oral argument.
9
whether that right was clearly established at the time of the
alleged violation.” Id. at 881. We are free to “address these
two questions in the order [ ] that will best facilitate the
fair and efficient disposition of each case.” Id. (internal
quotations omitted).
Because “[q]ualified immunity is an ‘immunity from suit
rather than a mere defense to liability . . . it is effectively
lost if a case is erroneously permitted to go to trial.’” Iko,
535 F.3d at 233–34 (quoting Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). To ensure that “insubstantial claims against
government officials will be resolved prior to discovery,” the
Supreme Court has repeatedly “stressed the importance of
resolving immunity questions at the earliest possible stage in
litigation.” Pearson v. Callahan, 555 U.S. 223, 231-32 (2009)
(internal quotations omitted). Nonetheless, “summary judgment
on qualified immunity grounds is improper as long as there
remains any material factual dispute regarding the actual
conduct of the defendants.” Vathekan v. Prince George's Cty.,
154 F.3d 173, 180 (4th Cir. 1998) (internal quotations omitted).
This is because “[d]isputed facts are treated no differently in
this portion of the qualified immunity analysis than in any
other context.” Buonocore v. Harris, 65 F.3d 347, 359 (4th Cir.
1995) (citing Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir.
1992)).
10
We 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.” Iko, 535 F.3d at 234 (citing Mitchell, 472
U.S. at 530). Critically, this review is limited to issues of
law; we possess no jurisdiction to review a district court’s
determination that “the pretrial record sets forth a ‘genuine’
issue of fact for trial.” Gould v. Davis, 165 F.3d 265, 268
(4th Cir. 1998) (quoting Johnson v. Jones, 515 U.S. 304, 320
(1995)).
A.
We begin with Enzor’s interlocutory appeal as to Mr.
Newkirk’s false arrest claim. Enzor contends that, “[d]espite
the fact that the entire encounter between [Mr.] Newkirk and
Enzor was captured on recorded video and audio,” the district
court erroneously determined that disputed facts precluded it
from conducting the qualified immunity analysis. Appellant’s
Br. at 9. Mr. Newkirk urges dismissal of Enzor’s appeal,
characterizing Enzor’s arguments as an impermissible attempt to
have us review the district court’s decision to deny summary
judgment on the issue of qualified immunity because there
existed genuine issues of material fact.
As an initial matter, we reject Enzor’s assertion that the
“entire encounter” between Mr. Newkirk and Enzor was recorded on
audio and video. The district court and the magistrate judge
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expressly found that much of the conversation between Mr.
Newkirk and Enzor is inaudible, and our own review confirms this
finding. With that as a backdrop, “our first task on appeal is
to separate the district court's legal conclusions regarding
entitlement to qualified immunity, over which we have
jurisdiction, from its determinations regarding factual
disputes, over which we do not.” Iko, 535 F.3d at 234. We must
also carefully parse Enzor’s “arguments to ensure that we only
consider those legal questions formally raised on appeal.” Id.
at 235.
Applying these principles, we conclude that we lack
jurisdiction to consider Enzor’s arguments regarding Mr.
Newkirk’s unlawful arrest claim. Enzor is entitled to qualified
immunity unless a reasonable officer in his position would have
known that arresting Mr. Newkirk under the circumstances would
violate Mr. Newkirk’s constitutional right to be free from an
arrest not based on probable cause. See Rogers v. Pendleton,
249 F.3d 279, 290 (4th Cir. 2001). Here, the district court
determined that it could not resolve this issue because what Mr.
Newkirk said during the traffic stop is in dispute. For
example, in contrast to Enzor’s assertions in the arrest warrant
that Mr. Newkirk “repeatedly instruct[ed] and coerce[d]” Mrs.
Newkirk to disregard Enzor’s instructions, J.J.A. 73, Mr.
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Newkirk alleges that he merely sought to inquire about the
events taking place and told Enzor to “calm down.” J.J.A. 333.
Given these disputed facts, Enzor’s entitlement to
qualified immunity rests on whether Mr. Newkirk’s actions and
words were sufficient to render the arrest lawful. In other
words, "the version of facts ultimately accepted by the fact
finder," specifically, what Mr. Newkirk said to Enzor and his
wife during Mrs. Newkirk's arrest, "will dictate the outcome of
the constitutional inquiry." Culosi v. Bullock, 596 F.3d 195,
203 n.6 (4th Cir. 2010) (emphasis omitted). As a result, we
have no jurisdiction to address this issue in an interlocutory
appeal. See Vathekan, 154 F.3d at 179-80 (summary judgment on
qualified immunity grounds is precluded where “[a] factual issue
critical to resolution of [qualified immunity] is contested”).
B.
We next consider Enzor’s interlocutory appeal as to Mrs.
Newkirk’s excessive force claim. Here, too, the district court
denied Enzor qualified immunity on the ground that disputed
facts “regarding the actual conduct of the defendant[]” rendered
summary judgment improper. C.J.A. 407 (quoting Vathekan, 154
F.3d at 180).
“A claim of excessive force is analyzed under the Fourth
Amendment standard of objective reasonableness.” Culosi, 596
F.3d at 201 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).
13
And “[r]easonableness is determined by the information possessed
by the officer at the moment the force is employed.” Id.On appeal, Enzor argues that “the facts of what actually
happened during the traffic stop and the force deployed in the
process are not in dispute” and that “the recorded video and
audio confirms [Mrs. Newkirk’s] sworn testimony that she
resisted Enzor’s constitutionally authorized placement of the
handcuffs and efforts to place her in the vehicle.” Appellant’s
Br. at 14. Enzor’s contention, however, ignores the district
court’s findings that “[Mrs.] Newkirk did not pose an immediate
threat to Enzor’s safety at the time, nor was she actively
resisting arrest or attempting to evade arrest,” and further
that disputed “relevant details of the encounter are not visible
on the video,” including the “physical struggle that took place
after [Enzor and Mrs. Newkirk] moved out of view of the video.”
C.J.A. 406.
In sum, the legal question of whether Enzor is entitled to
qualified immunity as to Mrs. Newkirk’s excessive force claim
“depends entirely on a credibility determination” between Mrs.
Newkirk’s and Enzor’s diverging portrayals of the traffic stop,
and as such, is “inappropriate for resolution by summary
judgment.” See Rainey v. Conerly, 973 F.2d 321, 323-24 (4th
Cir. 1992) (affirming denial of summary judgment to prison guard
on qualified immunity grounds where the trier of fact’s
14
determination of “what actually happened” in the excessive force
case was “absolutely necessary” to resolve whether the guard
could reasonably believe that his actions were lawful for
purposes of qualified immunity). Enzor’s appeal, which amounts
to little more than an attempt to “argue the insufficiency of
the evidence to raise a genuine issue of material fact,” must
therefore be dismissed for lack of jurisdiction. 4 Valladares v.
Cordero, 552 F.3d 384, 388 (4th Cir. 2009).
III.
For the reasons given, these interlocutory appeals are
DISMISSED.
4 We do not suggest that Enzor could not use appropriate
force to handcuff and arrest Mrs. Newkirk. Indeed, it is well
established that “the right to make an arrest carries with it
the right to use a degree of physical coercion or threat thereof
to effect the arrest.” Brown v. Gilmore, 278 F.3d 362, 369 (4th
Cir. 2002). We merely conclude that Enzor’s argument, based on
a challenge to the district court’s determination that the
record sets forth a genuine issue of fact for trial, is “one not
open to consideration to us on interlocutory appeal.” Culosi,
596 F.3d at 203.
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