Steven Thomas v. R. Holly , 533 F. App'x 208 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2076
STEVEN WAYNE THOMAS,
Plaintiff - Appellee.
v.
R. V. HOLLY, individually; MARK MELTON, individually; M. D.
SMITH, individually; KEN GILSTRAP, individually; JUSTIN
MATTHEWS, individually; DON LLOYD, individually; DARIN SMITH,
individually; CLINT BABB, individually; C. B. ESTES,
individually; BRYAN ALLEN, individually; BILL MARCUM,
individually; SHERIFF TRACY CARTER, individually and in his
official capacity as Lee County Sheriff,
Defendants - Appellants,
and
PABLO MORA, individually; JOHN DOE 15, individually; JOHN DOE
14, individually; JOHN DOE 13, individually; JOHN DOE 12,
individually; JOHN DOE 11, individually; JOHN DOE 10,
individually; JOHN DOE 9, individually; JOHN DOE 8,
individually; JOHN DOE 7, individually; JOHN DOE 6,
individually; JOHN DOE 5, individually; JOHN DOE 4, individually
and in his official capacity as a Corrections Officer for the
North Carolina Department of Corrections; JOHN DOE 3,
individually and in his official capacity as a Corrections
Officer for the North Carolina Department of Corrections; JOHN
DOE 2, individually and in his official capacity as a
Corrections Officer for the North Carolina Department of
Corrections; JOHN DOE 1, individually and in his official
capacity as a Corrections Officer for the North Carolina
Department of Corrections; GERALD BRANKER, in his official
capacity as Administrator for Central Prison, North Carolina
Department of Corrections; NURSE DOE; NORTH CAROLINA DEPARTMENT
OF CORRECTIONS; LEE COUNTY SHERIFF’S DEPARTMENT; LEE COUNTY,
NORTH CAROLINA; DEFENDANTS YET TO BE IDENTIFIED, individually;
NURSE DOE, individually and in her official capacity as a Nurse
for Central Prison, North Carolina Department of Correction,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cv-00052-BO)
Argued: May 15, 2013 Decided: July 17, 2013
Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
ARGUED: Bradley O. Wood, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC,
Winston-Salem, North Carolina, for Appellants. Edward Hardy
Lewis, BLANCHARD, JENKINS, MILLER, LEWIS & STYERS, PA, Raleigh,
North Carolina, for Appellee. ON BRIEF: James R. Morgan, Jr.,
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem, North
Carolina, for Appellants. Kieran J. Shanahan, Brandon S.
Neuman, John E. Branch, III, SHANAHAN LAW GROUP, PLLC, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this action brought pursuant to 42 U.S.C. § 1983, ten
officers of the Lee County, North Carolina Sheriff’s Department
appeal the district court’s denial of their respective motions
for summary judgment asserting qualified immunity. Four of
these same officers plus one additional officer appeal the
district court’s denial of their respective motions for summary
judgment asserting public officer immunity in regard to a
related claim under North Carolina common law. We affirm in
part, vacate in part, and remand for further proceedings
consistent with this opinion.
I
A
Given the procedural posture of this case, the facts are
set forth by viewing the evidence in the record and drawing all
reasonable inferences therefrom in the light most favorable to
the plaintiff, as the nonmoving party. Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (en banc).
At approximately 2:13 p.m. on April 27, 2009, Deputy Justin
Matthews (Deputy Matthews) of the Lee County, North Carolina
Sheriff’s Department (the Sheriff’s Department) responded to a
radio dispatch call reporting “two white males damaging
property” at the rural intersection of St. Andrews Church Road
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and Meadowview Road, near Sanford, North Carolina. (J.A. 3376).
The intersection is located in Deputy Matthews’ normal patrol
area.
As he arrived at the scene in his patrol car, Deputy
Matthews ran over part of an address sign lying in the road;
such sign presumably a casualty of the reported property
destruction. Deputy Matthews pulled up his patrol car behind a
pickup truck parked partially on the roadway of Meadowview Road
because he saw two unknown white men standing beside the truck
in a grassy area. Prior to exiting his patrol car, Deputy
Matthews radioed in his location and the truck’s license plate
number to the Sheriff’s Department.
Deputy Matthews is approximately five-feet, eight inches
tall and weighs approximately 215 pounds. Steven Wayne Thomas
(Plaintiff), one of the two white men spotted by Deputy
Matthews, is approximately five-feet, ten inches tall and weighs
approximately 210 pounds. Josh Gross (Gross), the other white
man spotted by Deputy Matthews, is approximately six-feet,
one-inch tall and weighs approximately 265 pounds.
After seeing Deputy Matthews arrive on the scene, Plaintiff
walked around to the back quarter panel of the driver’s side of
Deputy Matthews’ patrol car. By this time, Deputy Matthews had
exited his patrol car, leaving his driver’s side door open, and
had started talking with Gross. Deputy Matthews asked Gross in
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a calm manner something along the lines of “[W]hat’s going on
here? What’s the problem?” (J.A. 1145). Identifying Plaintiff
as his friend, Gross responded that Plaintiff was having
troubles, that Plaintiff had lost his mind, that something was
wrong with Plaintiff, and that Plaintiff needed help. At all
times relevant to this case, Plaintiff and Gross were unarmed.
As Plaintiff approached Deputy Matthews on the driver’s
side of his patrol car, Plaintiff held his hands up in front of
his face with his palms turned outward. Plaintiff continued to
approach Deputy Matthews until he got within an arm’s length of
Deputy Matthews and told him: “‘Sir, I have lost my mind[.]’”
(J.A. 1529). At this point, Deputy Matthews extended his arm to
push Plaintiff backward in order to obtain a reactionary gap
between them while saying “‘Back the f*ck up.’” (J.A. 1531).
Plaintiff immediately approached Deputy Matthews again, getting
within an arm’s length of Deputy Matthews for a second time.
Deputy Matthews, for a second time, pushed Plaintiff backward.
Undeterred, Plaintiff approached Deputy Matthews a third time,
getting within an arm’s length of Deputy Matthews for a third
time.
At this point, Deputy Matthews felt Plaintiff had pinned
him in between his open driver’s side door and his patrol car.
Accordingly, Deputy Matthews drew his taser, pointed it at
Plaintiff, and yelled at him three times to get down on the
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ground. Seeing the situation unfold, Gross told Plaintiff:
“‘Wayne, he’s going to shock you. He’s going to shock you. Get
on the ground. He’s going to shock you.’” (J.A. 1541).
Instead of complying with Deputy Matthews’ command to get
down on the ground, Plaintiff started backing up and turning
clockwise away from Deputy Matthews. With his taser set in
probe mode, Deputy Matthews activated his taser, causing two
thin wires approximately seven feet long with metal prongs on
each end to shoot out of the taser and into Plaintiff’s mid-back
near his left shoulder blade, delivering a five second cycle of
electrical shock to Plaintiff’s body “designed to cause
electro-muscular disruption, effectively freezing” Plaintiff’s
“muscles and thereby temporarily disabling him.” Meyers v.
Baltimore County, Md., 713 F.3d 723, 728 n.3 (4th Cir. 2013).
By this time, Plaintiff and Deputy Matthews were at the rear of
Deputy Matthews’ patrol car. Once tased, Plaintiff fell to the
ground and asked Deputy Matthews not to tase him again.
Through the radio microphone on Deputy Matthews’ lapel,
Deputy Matthews immediately advised a dispatcher at the
Sheriff’s Department and Deputy Ken Gilstrap (Deputy Gilstrap),
who was on route to the scene, that he had deployed his taser.
Deputy Matthews continued to command Plaintiff to stay on the
ground. Plaintiff ignored those commands and tried to get up in
order to get away. Once Plaintiff got to his hands and knees,
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Deputy Matthews tased him for a second time, thereby shocking
Plaintiff for another five seconds. Although Plaintiff fell to
the ground on his back, he started to get up again. Deputy
Matthews responded by tasing Plaintiff a third time (another
five seconds), which dropped Plaintiff to the ground again.
Plaintiff, having now figured out the function of the wire leads
embedded in his back, reached back and broke off the wire leads.
Deputy Matthews continued to command Plaintiff to stay on
the ground. Refusing to comply, Plaintiff stood up. With the
probe mode of his taser inoperable, Deputy Matthews attempted to
gain control of Plaintiff by pepper spraying him in the face.
Immediately after being pepper sprayed, Plaintiff turned
away from Deputy Matthews and ran approximately the length of a
football field, crossing St. Andrews Church Road along the way.
Plaintiff exhibited no reaction to being pepper sprayed. Deputy
Matthews pursued Plaintiff across the road on foot. While in
pursuit of Plaintiff, Deputy Matthews used his lapel microphone
to report in to dispatch that the subject had disabled his taser
and that he was in pursuit of him on foot.
In the meantime, Gross flagged down Deputy Gilstrap and
pointed him in the direction of the chase. Gross also crossed
the road and repeatedly called to Plaintiff to come back and
stop running. Hearing Gross’ voice from approximately
fifty-feet away, Plaintiff made a u-turn and started running
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straight toward Gross’ voice like he’d been “shot . . . out of a
gun.” (J.A. 1165). Deputy Matthews followed Plaintiff pretty
close behind. When Plaintiff neared Gross, Gross tackled him to
the ground in a football style tackle, got on his back, and
started telling him that everything would be alright.
By this time, Deputy Matthews had caught up with Plaintiff
and had his handcuffs out. Once Deputy Matthews got the
handcuffs near Plaintiff’s right arm, Gross clicked one handcuff
on that arm. Gross then grabbed Plaintiff’s left arm and got it
behind his back. At this point, Deputy Matthews told Gross to
back up and get out of the way. As Gross complied, Deputy
Matthews got on Plaintiff’s back and got a hold of Plaintiff’s
handcuffed arm. Plaintiff’s face was to the ground, and
although he was moving his body in a squirming manner, he did
not try to get up or fight back.
By this time, Deputy Gilstrap had arrived on the scene.
Deputy Gilstrap tased Plaintiff three times for five seconds
each time in prong mode within the course of a minute and then
joined Matthews in holding Plaintiff on the ground by sitting on
one side of Plaintiff’s buttocks and his corresponding leg.
Deputy Gilstrap weighs approximately 185 pounds.
Gross, who was standing in front of Plaintiff at this
point, then witnessed Detective Clinton Babb (Detective Babb),
who had recently arrived on the scene, punch Plaintiff in the
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back of his head four or five times in rapid succession with a
closed fist and with great force. When Gross called for
Detective Babb to stop hitting Plaintiff, Detective Babb jumped
up, got in Gross’ face and told him to “‘Back the f*ck up! Back
the f*ck up!’” (J.A. 1176).
Deputy Sheriff Brian Estes (Deputy Estes), who had also
recently arrived on the scene, then got down on the ground by
Plaintiff and struck him in the left side of his face several
times with great force with his knee. 1 Detective Sergeant
William Marcum (Detective Sergeant Marcum) subsequently walked
Gross across the street.
Deputy Gilstrap took over control of Plaintiff’s handcuffed
arm, while another officer, Detective R.V. Holly (Detective
Holly), got on top of Plaintiff near his shoulders and put his
knee between Plaintiff’s shoulder blades in an attempt to
handcuff his free arm. Detective Babb then tased Plaintiff four
more times for five second cycles within one and a half minutes.
This time, however, the taser was set in stun mode. Stun mode
is used for pain compliance rather than to physically
incapacitate the subject. In stun mode, the electrical shock is
delivered through the electrodes of the taser device being
1
Plaintiff’s expert witness regarding the appropriate use
of force opined that Detective Babb’s punches and Deputy Estes’
knee strikes constituted the use of deadly force.
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applied directly to the subject’s skin rather than through
electrical wires.
While Plaintiff remained on the ground with three officers
still on top of him, Plaintiff’s other arm was successfully
handcuffed with a second set of handcuffs which were linked
together with the first set secured on his other arm. Once
Plaintiff was fully handcuffed, everyone stood up but Plaintiff.
Deputy Matthews then advised the dispatcher to call an
ambulance. Plaintiff’s ankles were then shackled, at which
point, Plaintiff sat up. Officers asked Plaintiff to stand up
but he refused. Eventually, some officers got Plaintiff to his
feet and helped him walk to a waiting ambulance which
transported Plaintiff to the hospital for emergency medical
care. Five additional law enforcement officers arrived on the
scene at various times, but none were involved in attempting to
arrest or subdue Plaintiff.
Based upon reasonable inferences from the record, a
reasonable jury could find that, as the direct result of the
just described incident, Plaintiff suffered a fractured jaw
requiring surgery and suffered significant damage to the root of
a tooth. All parties involved later learned that Plaintiff’s
erratic behavior was caused by his exposure to herbicides and
insecticides that he mixed together in order to spray on tobacco
plants at his nearby farm.
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B
Of relevance on appeal, Plaintiff brought the present
action against eleven defendants. The claims at issue on appeal
are: (1) § 1983 excessive force claims against Deputy Matthews,
Deputy Gilstrap, Detective Babb, and Deputy Estes in their
individual capacities (collectively the Excessive Force
Defendants); (2) § 1983 bystander liability claims against
Sheriff Tracy Carter (Sheriff Carter), Sergeant Darin Smith
(Sergeant Smith), Deputy Mark Melton (Deputy Melton), Deputy Don
Lloyd (Deputy Lloyd), Detective Sergeant Marcum, and Lieutenant
Bryan Allen (Lieutenant Allen) in their individual capacities
(collectively the Bystander Defendants); and (3) state-law
assault and battery claims against Deputy Matthews, Deputy
Gilstrap, Deputy Estes, Detective Babb, and Detective Holly in
their individual capacities (collectively the Assault and
Battery Defendants). Plaintiff seeks compensatory and punitive
damages.
All of the § 1983 defendants moved for summary judgment on
the basis of qualified immunity. Additionally, the Assault and
Battery Defendants moved for summary judgment with respect to
Plaintiff’s assault and battery claims on the basis of North
Carolina’s doctrine of public officer immunity.
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In a written order, the district court denied all of these
motions for summary judgment in toto. This timely appeal
followed.
II
The Excessive Force Defendants contend they are
respectively entitled to qualified immunity from Plaintiff’s
claims alleging each used excessive force in seizing him in
violation of his right to be free from unreasonable seizures of
his person under the Fourth Amendment, U.S. Const. amend. IV,
and therefore, the district court erred by denying their
respective motions for summary judgment asserting qualified
immunity. We review the district court’s denials of such
motions de novo, construing the facts in the light most
favorable to the non-moving party, here Plaintiff. Orem v.
Rephann, 523 F.3d 442, 445 (4th Cir. 2008).
As is relevant here, under the doctrine of qualified
immunity, law enforcement officers performing discretionary
duties “are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This
sets up the following two-pronged inquiry: (1) Did a
constitutional or statutory violation occur?; and (2) If so, was
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the right violated clearly established at the time of the
officer’s conduct? Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009);
Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012). We have
discretion to determine which prong “should be addressed first
in light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236.
With respect to each Excessive Force Defendant, the first
prong asks whether he violated Plaintiff’s right to be free of
“seizures effectuated by excessive force.” Schultz v. Braga,
455 F.3d 470, 476 (4th Cir. 2006). In answering this question,
we employ a standard of objective reasonableness, testing
whether the officer’s actions are objectively reasonable in
light of the facts and circumstances confronting him. Scott v.
Harris, 550 U.S. 372, 381 (2007); Graham v. Connor, 490 U.S.
386, 397 (1989). The subjective intent or motivation of the
officer is irrelevant. Graham, 490 U.S. at 397. In assessing
the objective reasonableness of the force used, “a court must
focus on the moment that the force is employed,” Henry, 652
F.3d at 531, in light of the totality of the circumstances,
including “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers
or others, . . . whether he is actively resisting arrest or
attempting to evade arrest by flight,” Graham, 490 U.S. at 396,
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and “[t]he extent of the plaintiff’s injury,” Jones v. Buchanan,
325 F.3d 520, 527 (4th Cir. 2003). Moreover, “force justified
at the beginning of an encounter is not justified even seconds
later if the justification for the initial force has been
eliminated.” Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.
2005). As we have previously cautioned, “[t]he calculus of
reasonableness must embody allowances for the fact that police
officers are often forced to make split-second judgments——in
circumstances that are tense, uncertain and rapidly evolving——
about the amount of force that is necessary in a particular
situation.” Park v. Shiflett, 250 F.3d 843, 853 (4th Cir.
2001). Notably, “[a]t the summary judgment stage, once we have
viewed the evidence in the light most favorable to the
nonmovant, the question of whether the officer’s actions were
reasonable is a question of pure law.” Henry, 652 F.3d at 531.
If a violation of Plaintiff’s constitutional right is
established, the second prong of qualified immunity analysis
asks whether such right was clearly established at the time of
the claimed violation. Harlow, 457 U.S. at 819. “The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202. In answering this dispositive
inquiry, we “ordinarily need not look beyond the decisions of
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the Supreme Court, this court of appeals, and the highest court
of the state in which the case arose . . . .” Edwards v. City
of Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999) (quotation marks
and alteration marks omitted) (ellipses in original).
Based upon the following qualified immunity analysis, we
hold that Deputy Matthews and Deputy Gilstrap are entitled to
qualified immunity from Plaintiff’s excessive force claims, but
that Detective Babb and Deputy Estes are not entitled to
qualified immunity at the summary judgment stage.
A. Deputy Matthews.
Plaintiff claims that Deputy Matthews’ actions in tasering
and pepper spraying him constituted excessive force in violation
of his Fourth Amendment right to be free from unreasonable
seizures. We agree with Deputy Matthews that he is entitled to
qualified immunity because his actions are objectively
reasonable in light of the facts and circumstances confronting
him. The first relevant factor in our reaching this conclusion
is the severity of the crime at issue. Graham, 490 U.S. at 396.
At the outset, Deputy Matthews responded to an emergency report
that two white men were destroying someone’s property. While
willful and wanton injury to real property is a misdemeanor
crime in North Carolina, N.C. Gen. Stat. § 14-147, it
nonetheless is more than a minor one. Moreover, consistent with
the report of criminal conduct to which Deputy Matthews
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responded, when he arrived at the scene, he observed two white
men and ran over part of an address sign lying in the road. A
reasonable officer would have concluded that these two men were
the subjects of the property destruction dispatch call. This
factor cuts in favor of Deputy Matthews.
The second relevant factor is whether Plaintiff posed an
immediate threat to the safety of Deputy Matthews or others.
Graham, 490 U.S. at 396. Shortly after Deputy Matthews arrived
on the scene, one of the two men informed Deputy Matthews that
his friend, the other white man, had lost his mind, that
something was wrong with him, and that he needed help. At this
point, a reasonable officer already would be guarded about his
own safety and would have reasonably believed that these two men
were the subjects of the property destruction dispatch.
Plaintiff, who Deputy Matthews had just been told had lost his
mind and needed help, then approached Deputy Matthews with his
hands up in front of his face until he came within an arm’s
length of Deputy Matthews. At this point, Plaintiff verbally
confirmed that he indeed had lost his mind. After attempting
unsuccessfully to put a safe reactionary gap between himself and
Plaintiff several times while being hemmed in between his open
patrol car door and his patrol car, Deputy Matthews reasonably
perceived to be physically threatened by this self-proclaimed
(and bystander confirmed) crazy man despite the fact that
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Plaintiff was unarmed. This factor cuts in favor of Deputy
Matthews.
Given the circumstances thus far, Deputy Matthews acted
reasonably in commanding that Plaintiff drop to the ground while
pointing his taser at Plaintiff. The next factor now comes into
play: Was Plaintiff actively resisting arrest or attempting to
evade arrest by flight? Id. While Deputy Matthews did not
announce that he was placing Plaintiff under arrest, he did
command Plaintiff to get down on the ground in order to secure
his (Deputy Matthews’) own safety. Deputy Matthews then
observed Plaintiff attempt to flee the scene of his crime in an
unstable mental condition instead of complying with the command
to get down on the ground. Accordingly, this factor cuts in
favor of Deputy Matthews as well.
The last factor considers the extent of Plaintiff’s injury.
Jones, 325 F.3d at 527. The record shows that Plaintiff
suffered two minor puncture wounds as the result of the two
taser prongs entering his back. The record shows that Plaintiff
suffered no injury from the pepper spray. In the big scheme of
potential injuries from the use of excessive force, this factor
cuts in favor of Deputy Matthews.
Focusing on the moment that force was employed, in light of
the totality of the circumstances, Deputy Matthews acted
reasonably in tasering Plaintiff the first time in an attempt to
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temporarily subdue him and secure the scene. While tasering a
suspect “in general, is more than a non-serious or trivial use
of force,” it is “less than deadly force . . . .” Mattos v.
Agarano, 590 F.3d 1082, 1087 (9th Cir. 2010). For the same
reasons, Deputy Matthews acted reasonably in tasering Plaintiff
the second and third times when Plaintiff defied Deputy
Matthews’ commands to remain on the ground.
We now consider the pepper spraying. Focusing on the
moment that force was employed (after Plaintiff broke the wire
leads of Deputy Matthews’ taser and stood up), in light of the
totality of the circumstances, Deputy Matthews acted reasonably
in using his pepper spray, which is a non-lethal, and normally
only temporarily incapacitating device, in an attempt to
temporarily subdue Plaintiff and secure the scene. Gaddis ex
rel. Gaddis v. Redford Tp., 364 F.3d 763, 774 (6th Cir. 2004)
(pepper spray is non-lethal, temporarily incapacitating tool of
law enforcement).
Because Plaintiff could not forecast sufficient evidence
for a reasonable jury to find that Deputy Matthews had violated
Plaintiff’s right to be free from unreasonable seizures, the
district court erred in denying Deputy Matthews’ motion for
summary judgment based upon qualified immunity.
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B. Deputy Gilstrap.
Fairly characterizing Plaintiff’s allegations against
Deputy Gilstrap, Plaintiff claims that Deputy Gilstrap’s actions
in tasering him three times while he lay prone and unarmed on
the ground with Deputy Matthews sitting on his back in control
of his right handcuffed arm constituted excessive force in
violation of his Fourth Amendment right to be free from
unreasonable seizures. This claim need not detain us long
because, assuming arguendo that Deputy Gilstrap’s tasering of
Plaintiff three times violated Plaintiff’s right to be free of
seizures effectuated by excessive force, the unlawfulness of
Deputy Gilstrap’s actions was not clearly established at the
time Deputy Gilstrap took such actions. Significantly, in
contrast to the state of affairs at the moment that Detective
Babb began to tase Plaintiff, at the moment that Deputy Gilstrap
began to tase Plaintiff, the evidence, viewed in the light most
favorable to Plaintiff, establishes that Plaintiff was not yet
effectively secured. We have found no relevant authority
establishing that Deputy Gilstrap’s actions—tasering a person
who, among other things, is not secured—transgressed a bright
line. See Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992) (“Officials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.”). Accordingly,
we agree with Deputy Gilstrap that he is entitled to qualified
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immunity from Plaintiff’s excessive force claim against him, and
the district court erred in denying Deputy Gilstrap’s motion for
summary judgment based upon qualified immunity.
C. Detective Babb.
Fairly characterizing Plaintiff’s allegations against
Detective Babb, Plaintiff claims that Detective Babb’s actions
in punching him four or five times in the back of the head with
a closed fist and with great force while: (1) he lay face down
on the ground; (2) unarmed; (3) with one arm handcuffed behind
his back being held by Deputy Matthews who was sitting on his
back; and (4) while Deputy Gilstrap sat on one side of his
buttocks and the corresponding leg, constituted excessive force
in violation of his Fourth Amendment right to be free from
unreasonable seizures. Plaintiff also claims that Detective
Babb’s actions in tasering him four times after he was
effectively secured also constituted unconstitutional excessive
force. We agree with the district court that Detective Babb is
not entitled to qualified immunity at the summary judgment stage
with respect to either set of actions. Viewing the evidence in
the summary judgment record in the light most favorable to
Plaintiff, Detective Babb’s actions (the punching and tasering)
are objectively unreasonable in light of the facts and
circumstances confronting him, and the law in this regard was
clearly established at the time that Detective Babb took them.
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1. Punching Plaintiff in the back of his head.
Of the relevant factors in our objective reasonableness
analysis with respect to Detective Babb’s actions in punching
Plaintiff in the back of his head, the first (the severity of
the crime) cuts in favor of Detective Babb, while the last three
cut in favor of Plaintiff. The severity-of-the-crime factor is
the same as in the case of Deputy Matthews. Speaking to the
second factor, at the moment that Detective Babb punched
Plaintiff, Plaintiff posed no immediate threat to the safety of
the officers on the scene or others. At that moment, Plaintiff
was unarmed, pinned face down to the ground by two officers of
comparable size sitting on top of him, and his right arm was
handcuffed and pulled behind his back by one of those officers.
Indeed, Defendants’ own expert witness on excessive force, John
Combs, testified during his deposition in this case that the
record contains no evidence that any officers at the scene were
in imminent threat of death or serious bodily injury.
Similarly, John Combs opined that Plaintiff never displayed any
resistance rising to the level of deadly force. This factor
cuts in favor of Plaintiff.
Speaking to the third factor, the evidence viewed in the
light most favorable to Plaintiff establishes that Plaintiff,
although squirming on the ground, was effectively incapable of
actively resisting or attempting to evade arrest by flight at
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the moment that Detective Babb starting punching him or
thereafter. This factor cuts in favor of Plaintiff. Speaking
to the fourth factor, the evidence viewed in the light most
favorable to Plaintiff establishes that Detective Babb’s
punching caused Plaintiff to suffer abrasions to and bruising
and swelling of his face. This factor cuts in favor of
Plaintiff.
Dave Cloutier, Plaintiff’s expert witness regarding the use
of force, testified that the manner in which Detective Babb
punched Plaintiff in the back of his head with a closed fist and
with great force constituted the use of deadly force. Moreover,
in his expert witness report, Cloutier points out that according
to the Sherriff’s Department’s written policy: “Deputies shall
not deliberately strike another person on the head, spinal
column, groin, solar plexus, kidneys, or throat with any issued
or authorized equipment or other object unless the deputy
reasonably believes that his life or the life of a third party
is threatened.’” (J.A. 2167) (emphasis in report).
Focusing on the moment that force was employed, in light of
the totality of the circumstances, Detective Babb’s actions were
objectively unreasonable in punching Plaintiff four or five
times in the back of the head with a closed fist and with great
force in an effort to arrest him. See Tennessee v. Garner, 471
U.S. 1, 11 (1985) (“The use of deadly force to prevent the
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escape of all felony suspects, whatever the circumstances, is
constitutionally unreasonable.”); id. (“Where the suspect poses
no immediate threat to the officer and no threat to others,”
officers may not use deadly force to apprehend the suspect.).
The law in this regard was clearly established prior to April
27, 2009. Id. In sum, viewing the evidence in the summary
judgment record in the light most favorable to Plaintiff, we
hold that prior to April 27, 2009, a reasonable law enforcement
officer in Detective Babb’s position would have known that he
was “transgressing” a “bright line” with regard to his punching
actions. Maciariello, 973 F.2d at 298.
In sum, the district court correctly concluded that
Detective Babb is not entitled to qualified immunity at the
summary judgment stage with respect to Detective Babb’s actions
in punching Plaintiff in the back of the head.
2. Tasering Plaintiff Four Times.
Next we consider whether Detective Babb’s actions in
tasering Plaintiff four times amounted to excessive and
unreasonable force under the circumstances. The answer is yes.
While tasering a suspect “in general, is more than a non-serious
or trivial use of force but less than deadly force . . .”
Mattos, 590 F.3d at 1087, focusing on the moment that force was
employed, in light of the totality of the circumstances,
Detective Babb’s actions were objectively unreasonable in
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tasering Plaintiff four times while Plaintiff was effectively
secured. By this point in time, Plaintiff lay unarmed, face
down on the ground, had three fellow officers sitting on top of
him (Deputy Matthews, Deputy Gilstrap, and Detective Holly)
holding him down, one of those officers held Plaintiff’s right
handcuffed arm behind his back, and, although Plaintiff
struggled in a squirming manner, Plaintiff did not attempt to
get up off the ground. See Meyers, 713 F.3d at 734 (“It is an
excessive and unreasonable use of force for a police officer
repeatedly to administer electrical shocks with a taser on an
individual who no longer is armed, has been brought to the
ground, has been restrained physically by several other
officers, and no longer is actively resisting arrest.”).
The law in this regard was clearly established prior to
April 27, 2009. Id. (law clearly established in March 2007 that
police officer’s tasering suspect who was unarmed and
effectively secured with several officers sitting on his back
violated suspect’s Fourth Amendment right to be free from the
use of excessive and unreasonable force). Viewing the evidence
in the summary judgment record in the light most favorable to
Plaintiff, the material distinction on this point between
Detective Babb’s tasering of Plaintiff and Deputy Gilstrap’s
tasering of Plaintiff is that, in contrast to the state of
affairs when Gilstrap tasered Plaintiff, when Detective Babb
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tasered Plaintiff, Plaintiff was effectively secured. By the
time Detective Babb tasered Plaintiff, Plaintiff had three (not
one) officers sitting on top of him holding him down and was
suffering the physical effects of Detective Babb’s and Deputy
Estes’ sequential use of deadly force on his head.
In sum, the district court correctly concluded that
Detective Babb is not entitled to qualified immunity at the
summary judgment stage with respect to Detective Babb’s actions
in tasering Plaintiff.
D. Deputy Estes.
Turning to Deputy Estes, Plaintiff claims that Detective
Estes’ actions in striking him in the left side of his face
several times with great force with his knee while he lay face
down on the ground, unarmed, with one arm handcuffed behind his
back, being held by Deputy Matthews sitting on his back, and
with Deputy Gilstrap sitting on one side of his buttocks and his
corresponding leg, constituted excessive force in violation of
his Fourth Amendment right to be free from unreasonable
seizures. We agree with the district court that Deputy Estes is
not entitled to qualified immunity. Deputy Estes’ actions in
striking Plaintiff in the left side of his face several times
with great force with his knee are objectively unreasonable in
light of the facts and circumstances confronting him, and the
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law in this regard was clearly established at the time he
engaged in such actions.
As in the case of Detective Babb, of the relevant factors
in our objective reasonableness analysis of Detective Estes’
actions, the first (the severity of the crime) cuts in favor of
Deputy Estes, but the last three cut in favor of Plaintiff. The
severity-of-the-crime factor is the same as in the case of
Deputy Matthews and Detective Babb. Addressing the second
factor (whether Plaintiff posed an immediate threat to the
safety of the officers on the scene or others), at the moment
that Deputy Estes started striking Plaintiff on the left side of
his face with great force with his knee, Plaintiff posed no
immediate threat to the safety of the officers on the scene or
others. Plaintiff was unarmed, pinned face down on the ground
by two officers of comparable size sitting on top of him, his
right arm was handcuffed and pulled behind his back, and one of
the officers sitting on top of him had control of his handcuffed
arm. At the time of Deputy Estes’ forceful knee strikes to the
left side of Plaintiff’s face, none of the officers at the scene
were in imminent threat of death or serious bodily injury, and
Plaintiff displayed no resistance rising to the level of deadly
force.
With respect to the third factor (whether Plaintiff was
actively resisting or attempting to evade arrest by flight), the
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evidence viewed in the light most favorable to Plaintiff
establishes that Plaintiff, although squirming on the ground at
the time that Deputy Estes started forcefully striking him in
the face with his knee, was effectively incapable of actively
resisting arrest or attempting to evade arrest by flight.
Accordingly, this factor cuts in favor of Plaintiff. With
respect to the fourth factor (the extent of Plaintiff’s injury),
the evidence viewed in the light most favorable to Plaintiff
establishes that Deputy Estes’ actions caused Plaintiff severe
injury. Specifically, Deputy Estes struck Plaintiff in the left
side of his face with such force that he fractured Plaintiff’s
jaw and severely damaged the root of one of Plaintiff’s teeth.
Moreover, as in the case of Detective Babb’s strikes to the
back of Plaintiff’s head, Dave Cloutier, Plaintiff’s expert
witness regarding the use of force, testified that the manner in
which Deputy Estes struck Plaintiff in the left side of
Plaintiff’s face with his knee constituted the use of deadly
force. Furthermore, as quoted above, the Sheriff’s Department’s
written policy against deliberately striking a suspect on the
head with an object, unless the officer reasonably believes that
his life or the life of a third party is threatened, prohibited
Deputy Estes’ actions under the circumstances.
Focusing on the moment that force was employed, in light of
the totality of the circumstances, we hold that Deputy Estes’
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actions were objectively unreasonable in striking Plaintiff
several times in the left side of Plaintiff’s face with his knee
with such force that he fractured Plaintiff’s jaw and severely
damaged the root of one of Plaintiff’s teeth. See Garner, 471
U.S. at 11 (“The use of deadly force to prevent the escape of
all felony suspects, whatever the circumstances, is
constitutionally unreasonable.”); id. (“Where the suspect poses
no immediate threat to the officer and no threat to others,”
officers may not use deadly force to apprehend the suspect.).
The law in this regard was clearly established prior to April
27, 2009. Id. Viewing the evidence in the summary judgment
record in the light most favorable to Plaintiff, prior to April
27, 2009, a reasonable law enforcement officer in Deputy Estes’
position would have known that he was “transgressing” a “bright
line” with regard to his actions. Maciariello, 973 F.2d at 298.
In sum, the district court correctly concluded that Deputy
Estes is not entitled to qualified immunity at the summary
judgment stage.
III
The Bystander Defendants next challenge the district
court’s denial of their respective motions for summary judgment
asserting qualified immunity.
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Under the theory of bystander liability, an officer may be
liable only if such officer: “(1) knows that a fellow officer is
violating an individual’s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not
to act.” Randall v. Prince George’s County, 302 F.3d 188, 204
(4th Cir. 2002) (footnote omitted). Here, given our holdings
with respect to Plaintiff’s excessive force claims, Part II
supra, any bystander liability in this case must be based upon
being a bystander to the unconstitutional conduct of Detective
Babb and Deputy Estes. We address each Bystander Defendant
individually.
A. Detective Sergeant Marcum.
We hold that Detective Sergeant Marcum is entitled to
qualified immunity, and therefore, the district court erred in
denying his motion for summary judgment asserting qualified
immunity. Detective Sergeant Marcum is the officer who walked
Gross across the street. Detective Sergeant Marcum admits to
seeing the Excessive Force Defendants struggling with Plaintiff,
but denies seeing anyone punch, strike, or kick Plaintiff.
Plaintiff has presented no witness testimony or other evidence
to put this testimony in dispute, and Plaintiff cannot defeat
summary judgment by asserting that the jury might disbelieve
Detective Sergeant Marcum. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986) (plaintiff may not defeat summary
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judgment by merely asserting the jury might, and legally could,
disbelieve defendant’s denial); 10A Charles Alan Wright, Arthur
R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Practice
and Procedure § 2726 (3d ed. 1998) (specific facts must be
produced in order to put credibility in issue so as to preclude
summary judgment; unsupported allegations that credibility is in
issue will not suffice).
B. Deputy Melton.
We hold that Deputy Melton is entitled to qualified
immunity, and therefore, the district court erred in denying
Deputy Melton’s motion for summary judgment. The record is
undisputed that Deputy Melton did not arrive at the scene until
after Plaintiff had been transported to the hospital.
C. Deputy Lloyd.
We hold that Deputy Lloyd is entitled to qualified
immunity, and therefore, the district court erred in denying his
motion for summary judgment. In his sworn declaration in this
case, Deputy Lloyd declares that he parked his patrol car at
least two hundred yards away from the scene (Plaintiff on the
ground). Once parked, he radioed his location to dispatch in
case the need arose for him to get closer to the scene. After
Deputy Lloyd heard over his radio that the situation was
resolved and that the subject was in custody, he left the area.
Plaintiff points to no evidence in the record to contradict
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Deputy Lloyd’s version of events, and thus, Plaintiff has not
created a genuine issue of material fact with respect to his
bystander liability claim against Deputy Lloyd. Anderson, 477
U.S. at 256.
D. Lieutenant Allen.
We hold that Lieutenant Allen is entitled to qualified
immunity, and therefore, the district court erred in denying his
motion for summary judgment. In his sworn declaration in this
case, Lieutenant Allen declares that after he parked his patrol
car along the side of St. Andrew’s Church Road, he started to
walk toward the other vehicles. He further declares that, as he
walked, he saw from thirty to forty feet away several deputies
struggling with Plaintiff. Within moments, as he was still
walking up, he saw the deputies finish handcuffing Plaintiff.
Lieutenant Allen denies seeing anyone strike, taser, or pepper
spray Plaintiff. Plaintiff points to no evidence in the record
to contradict Lieutenant Allen’s version of events, and thus,
Plaintiff has not created a genuine issue of material fact with
respect to his bystander liability claim against Lieutenant
Allen. Anderson, 477 U.S. at 256.
E. Sheriff Carter.
We hold that Sheriff Carter is entitled to qualified
immunity, and therefore, the district court erred in denying his
motion for summary judgment. In his deposition testimony,
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Sheriff Carter testified that as he was walking toward the scene
and still a considerable distance away, he observed Plaintiff on
the ground and Deputy Estes striking Plaintiff once or twice in
the head, neck, or back area with his knee. Just moments later,
Sheriff Carter saw deputies successfully handcuff Plaintiff and
step back from him. Sheriff Carter did not observe anyone else
hit or strike Plaintiff, taser him, or pepper spray him. Under
Sheriff Carter’s version of events, no reasonable jury could
find that Sheriff Carter had a reasonable opportunity to prevent
the harm caused by Deputy Estes. By the time Sheriff Carter had
gotten close enough to take any preventative action, Plaintiff
was already handcuffed and all physical force against Plaintiff
had stopped.
Plaintiff points to no evidence in the record to contradict
Sheriff Carter’s version of events, and thus, Plaintiff has not
created a genuine issue of material fact with respect to his
bystander liability claim against Sheriff Carter. Anderson, 477
U.S. at 256.
F. Sergeant Smith.
We hold that Sergeant Smith is entitled to qualified
immunity, and therefore, the district court erred in denying
Sergeant Smith’s motion for summary judgment. When Sergeant
Smith arrived, he walked up to where the officers were
attempting to handcuff Plaintiff while Plaintiff was on the
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ground. According to Sergeant Smith, “[t]here was five people
around [Plaintiff] and . . . I couldn’t do nothing. I couldn’t
get in there. If I got in there, I’d have to push somebody out
of the way.” (J.A. 1468). Sergeant Smith admits that he saw a
deputy taser Plaintiff one time and saw Deputy Estes strike
Plaintiff once in the side of the head with his knee. He saw no
other force used against Plaintiff.
Assuming arguendo that Sergeant Smith understood that
Deputy Estes and the officer who he saw taser Plaintiff one time
had used excessive force, no reasonable jury could find that
Sergeant Smith had a reasonable opportunity to prevent such harm
but nevertheless chose not to do so. Sergeant Smith had no
prior knowledge that either officer would take such action
against Plaintiff. He only saw Deputy Estes knee Plaintiff in
the side of the face one time and only saw the other officer
taser Plaintiff one time. Plaintiff offers no evidence to the
contrary.
In sum, all of the Bystander Defendants are entitled to
qualified immunity.
IV.
The Assault and Battery Defendants next challenge the
district court’s denial of their motion for summary judgment on
the basis that the doctrine of public officer immunity under
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North Carolina law shields them from Plaintiff’s respective
North Carolina common law assault and battery claims. Because
under North Carolina law public officer immunity is an immunity
from suit rather than merely immunity from liability, we have
appellate jurisdiction over the Assault and Battery Defendants’
appeal in this regard. Bailey v. Kennedy, 349 F.3d 731, 739
(4th Cir. 2003).
Other than with respect to Detective Holly, Plaintiff’s
assault and battery claims go the way of Plaintiff’s § 1983
excessive force claims. In North Carolina, official immunity
protects a public official performing discretionary acts in the
course of his official duties from suit in his individual
capacity, so long as the public official acted without malice or
corruption or outside the scope of his official duties. Evans,
703 F.3d at 656-67. “A defendant acts with malice when he
wantonly does that which a man of reasonable intelligence would
know to be contrary to his duty and which he intends to be
prejudicial or injurious to another.” In re Grad v. Kaasa, 321
S.E.2d 888, 890 (N.C. 1984). “An act is wanton when it is done
of wicked purpose, or when done needlessly, manifesting a
reckless indifference to the rights of others.” Id. at 890–91
(internal quotation marks omitted).
For the same reasons that we affirm the denial of qualified
immunity with respect to Plaintiff’s § 1983 excessive force
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claims against Detective Babb and Deputy Estes, we affirm the
denial of public officer immunity with respect to Plaintiff’s
North Carolina assault and battery claims against Detective Babb
and Deputy Estes. Bailey, 349 F.3d at 745 (“For the same
reasons that we affirm the denial of qualified immunity on the
§ 1983 excessive force claim, we affirm the denial of public
officers’ immunity on the [North Carolina] common law assault
and battery claim.”); Glenn-Robinson v. Acker, 538 S.E.2d 601,
615 (N.C. Ct. App. 2000) (citizen can sue law enforcement
officer for assault and battery if “the officer used force
against plaintiff which was excessive under the given
circumstances” (internal quotation marks omitted)).
We hold Deputy Matthews and Deputy Gilstrap are entitled to
public officer immunity under North Carolina law with respect to
Plaintiff’s North Carolina common law assault and battery claims
against them. Plaintiff has not proffered sufficient evidence
for a reasonable jury to find that, with respect to any of
Deputy Matthews’ conduct toward Plaintiff, Deputy Matthews acted
with malicious intent, with corruption or outside the scope of
his duties. Evans, 703 F.3d at 656-67. The same goes for
Deputy Gilstrap.
Now for Detective Holly. The evidence in the record is
undisputed that Detective Holly’s only physical conduct with
respect to Plaintiff was getting on top of Plaintiff near his
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shoulders and putting his knee between Plaintiff’s shoulder
blades while grabbing his free arm in an effort to help get him
fully handcuffed while Plaintiff lay prone on the ground. This
conduct is insufficient to defeat Detective Holly’s claim of
public officer immunity under North Carolina law. There is no
evidence that Detective Holly acted with malicious intent, with
corruption or outside the scope of his duties.
V.
In conclusion, we: (1) affirm the denial of Detective
Babb’s and Deputy Estes’ respective motions for summary judgment
(asserting claims for qualified immunity and public officer
immunity) with respect to Plaintiff’s § 1983 excessive force
claims and his assault and battery claims under North Carolina
common law; (2) vacate the district court’s denial of Deputy
Matthews’ and Deputy Gilstrap’s respective motions for summary
judgment (asserting claims for qualified immunity and public
officer immunity) with respect to Plaintiff’s § 1983 excessive
force claims and his assault and battery claims under North
Carolina common law and remand this case to the district court
with instructions to grant such motions; (3) vacate the district
court’s denial of the Bystander Defendants’ respective motions
for summary judgment (asserting claims for qualified immunity)
with respect to Plaintiff’s § 1983 bystander liability claims
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and remand this case to the district court with instructions to
grant such motions; and (4) vacate the district court’s denial
of Detective Holly’s motion for summary judgment (asserting
public officer immunity) with respect to Plaintiff’s assault and
battery claim under North Carolina common law and remand this
case to the district court with instructions to grant such
motion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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