Gregory Robinson v. S.W. Miller ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1954
GREGORY ROBINSON,
Plaintiff - Appellee,
v.
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; THE CITY OF SOUTH CHARLESTON,
Defendants - Appellants.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Thomas E. Johnston, Chief Judge. (2:14-cv-00330)
Argued: December 10, 2019 Decided: February 6, 2020
Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished opinion. Judge Harris wrote the
opinion, in which Chief Judge Gregory and Judge Niemeyer joined.
ARGUED: Drannon L. Adkins, PULLIN, FOWLER, FLANAGAN & POE, PLLC,
Charleston, West Virginia, for Appellants. Alexander D. McLaughlin, THE CALWELL
PRACTICE, LC, Charleston, West Virginia, for Appellee. ON BRIEF: Molly Underwood
Poe, PULLIN, FOWLER, FLANAGAN & POE, PLLC, Charleston, West Virginia, for
Appellants. Benjamin D. Adams, THE CALWELL PRACTICE, LC, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PAMELA HARRIS, Circuit Judge:
In July of 2012, a report of employee thefts of iPods at a Walmart in South
Charleston, West Virginia, set off the nearly-eight-year-long chain of events that led to this
appeal. Those events include two separate arrests of Gregory Robinson, with charges
dismissed both times; Robinson’s civil suit against the arresting officers and the city,
claiming in part that he was arrested without probable cause; a district court decision
denying the defendants’ motion for summary judgment, concluding that disputed facts
precluded an award of qualified immunity to the arresting officers; an appeal of that
decision, in which we vacated in part and remanded to the district court; and finally, a
second district court decision – the one now on appeal – again denying the arresting officers
summary judgment on qualified immunity grounds.
Despite this protracted history, the issue at the heart of this appeal is straightforward.
Robinson claims that he was arrested twice without probable cause, and the officers who
arrested him claim that they are entitled to qualified immunity as a matter of law. On
remand, as in its initial opinion, the district court ruled against the officers, determining
that genuine disputes of fact about what evidence the officers knew of at the time of the
arrests precluded summary judgment on qualified immunity grounds. Our task, in this
posture, is a narrow one, “limited to [one] legal question: if we take the facts as the district
court gives them to us, and we view those facts in the light most favorable to the plaintiff,
is the defendant still entitled to qualified immunity?” Williams v. Strickland, 917 F.3d 763,
768 (4th Cir. 2019) (citation omitted). Mindful of this jurisdictional limitation, we affirm
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the district court’s denial of the officers’ motion for summary judgment on Robinson’s
claims that he was arrested without probable cause.
The defendants also ask that we reverse the district court’s denial of summary
judgment as to certain additional claims: that the City violated § 1983 by failing to train
its police officers with respect to probable cause, and that the individual officers violated
state law in arresting Robinson without probable cause. Denials of summary judgment are
interlocutory orders generally not subject to immediate appeal. And while the collateral
order doctrine allows us to review the denial of summary judgment to the officers based
on qualified immunity – subject to the strictures noted above – there is no independent
ground for jurisdiction over the remaining claims. On interlocutory review, we decline to
exercise pendent jurisdiction and therefore dismiss the appeal as to these other claims.
I.
A.
Because this is an interlocutory appeal of a denial of qualified immunity, we recount
the facts as the district court viewed them – that is, in the light most favorable to the
plaintiff, Gregory Robinson. See Winfield v. Bass, 106 F.3d 525, 529–30 (4th Cir. 1997)
(en banc).
In 2012, Robinson was an employee in the electronics department of a Walmart
store located in South Charleston, West Virginia. That July, Paul Higginbotham, the
store’s Asset Protection Manager, contacted the South Charleston Police Department to
report an employee theft. Officer Steven Miller met with Higginbotham, who informed
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Miller that two store surveillance videos had captured employees stealing Apple iPods.
The first video, from July 6, shows Walmart associates Jeremy Hartwell and Jirald Davis
in the electronics department, with Hartwell removing iPods from a display case. In the
second, from July 10, a third Walmart associate – Robinson – stands at the electronics
counter, while Davis is present and Hartwell again is seen taking iPods from the case.
On July 18, Officer Miller applied for a warrant to arrest Hartwell, and made the
arrest that same day. At some point on or after this date, the police questioned Hartwell,
and Hartwell produced a handwritten statement that implicated Robinson and Davis. The
Hartwell Statement is not dated, and it is not clear when it was obtained.
On July 19, Miller applied for arrest warrants for both Robinson and Davis. In the
affidavit accompanying the warrant application for Robinson, Miller provided what the
district court termed an “exculpatory statement” regarding Robinson: According to Miller,
the July 10 video showed Davis “distract[ing]” Robinson while Hartwell took merchandise
from the display. Robinson v. Miller, No. 2:14-CV-00330, 2015 WL 5298965, at *12
(S.D.W. Va. Sept. 10, 2015) (“First Opinion”); see also Robinson v. Miller, No. 2:14-CV-
00330, 2018 WL 3614208, at *2 (S.D.W. Va. July 27, 2018) (“Second Opinion”). Still, a
magistrate judge issued an arrest warrant, and Robinson voluntarily turned himself in to
the police. The charges were dismissed without prejudice following a preliminary hearing
at which neither Miller nor any witness from Walmart appeared.
Several months passed, during which Officers Eric Peterson and Engracio Moyer –
who worked regularly around the Walmart store – heard from Higginbotham that he had
unsuccessfully tried to contact Officer Miller about resolving the case against Robinson.
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Higginbotham asked Peterson and Moyer to “handle” the issue. Second Opinion, 2018
WL 3614208, at *3. After speaking to prosecutors, Peterson and Moyer sought a second
arrest warrant on November 20, 2012, based on the same July 10 incident. This time, the
affidavit in support of probable cause was amended to remove the exculpatory reference to
Robinson. In this version, video of the July 10 episode shows Hartwell entering the scene
while Davis speaks with Robinson and “appears to distract the other associates” –
presumably, associates other than Robinson – “from noticing the activity.” Id. at *4.
Again, a magistrate judge issued an arrest warrant, and Robinson turned himself in.
At the second probable cause hearing, Higginbotham testified and recounted the contents
of the videos. Officers Peterson and Moyer were present, though they were not called to
testify, and the state neither introduced nor mentioned the Hartwell Statement. At the
conclusion of the hearing, the magistrate judge dismissed the charges against Robinson for
lack of probable cause.
B.
In December of 2013, Robinson filed suit against Officers Miller, Peterson, and
Moyer in their individual capacities and against the City of South Charleston, alleging the
following claims: that the officers violated § 1983, both by seeking arrest warrants based
on affidavits that failed to establish probable cause and by arresting Robinson without
probable cause (Counts I and II); that the City violated § 1983 by failing to train its police
officers with respect to probable cause (Count III); and that the officers also violated state
law in arresting Robinson without probable cause (Counts IV and V).
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The defendants moved for summary judgment on all of Robinson’s claims.
Robinson sought summary judgment on his deficient affidavit claims against the individual
defendants, contending that the affidavits submitted in support of the arrest warrants
against him failed to establish probable cause as a matter of law. The district court granted
Robinson’s motion on the deficient affidavit claim against Miller, denied Robinson’s
motion on the deficient affidavit claim against Peterson and Moyer, and denied the
defendants’ motion in its entirety.
Central to this appeal is the officers’ claim, in their motion for summary judgment,
that they are entitled as a matter of law to qualified immunity on Robinson’s allegation that
he was arrested without probable cause and in violation of the Fourth Amendment. On that
issue, the district court explained, the critical question is whether the information known
to the officers at the time of Robinson’s arrests amounted to probable cause of criminal
activity. See First Opinion, 2015 WL 5298965, at *22 (citing Taylor v. Waters, 81 F.3d
429, 434 (4th Cir. 1996)). And on that question, the district court determined, there were
“pervasive discrepancies in the record,” creating genuine issues of fact as to what the
officers knew when they arrested Robinson and precluding summary judgment. Id. at *25.
In particular, the district court found, the “record is entirely unclear” as to whether Officer
Miller, id. at *24, or Officers Peterson and Moyer, see id. at *26, had knowledge, at the
time of the relevant arrests, of Hartwell’s statement implicating Robinson in the thefts. The
district court also identified a material dispute of fact as to whether the officers
“interpret[ed]” the surveillance videos as evidence that Robinson was acting in concert
with his Walmart colleagues. Id. at *23; see id. at *28, *28 n.13.
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C.
The defendants appealed. We may review on appeal a district court’s denial of
qualified immunity “to the extent that it turns on an issue of law.” See Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). Exercising that limited jurisdiction, we held that the district
court committed a legal error in its analysis of probable cause, incorrectly applying a
subjective rather than an objective standard. See Robinson v. City of S. Charleston, 662 F.
App’x 216, 220 (4th Cir. 2016) (“Robinson I”).
More specifically, we explained, the district court “considered whether the officers
‘interpreted’ the video as suggestive of Robinson’s involvement in the theft,” rather than
watching the surveillance video for itself to determine whether it contributed to probable
cause as an objective matter. Id. (emphasis omitted). But whether the officers interpreted
the video as incriminating Robinson was not a material factual dispute, because the
individual officers’ subjective interpretations were irrelevant to the probable cause
analysis. The only question actually material to the existence of probable cause, we
concluded, was an objective one: 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.” Id. (quoting United States v. Gray, 137 F.3d 765, 769 (4th
Cir. 1998)).
As a result, and without passing judgment on any other legal claim on appeal, we
vacated the district court’s ruling in part and remanded for the district court to undertake
the requisite objective inquiry into probable cause. See id. at 221. We noted that if the
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district court reached a different conclusion as to whether Robinson’s arrests were
supported by probable cause, that finding might affect Robinson’s other claims. See id.
But “we express[ed] no view on those issues, and [left] 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.” Id.
D.
On remand, the district court again denied the officers’ motion for summary
judgment on Robinson’s claims that he was arrested without probable cause. See Second
Opinion, 2018 WL 3614208, at *12. This time, the district court “underscore[d] the
objective standard that the Fourth Circuit emphasized,” considering only the objective
question of whether “reasonable and prudent persons,” viewing evidence known to the
officers at the time of the arrests, would find a “fair probability” of criminal activity. Id.
at *9. Under that objective standard, the court concluded, the officers were not entitled to
qualified immunity as a matter of law.
As to Count I – the arrest without probable cause claim against Officer Miller – the
court itself reviewed the Walmart surveillance videos, which undisputedly were known to
Miller at the time of Robinson’s first arrest. But in the one video in which Robinson is
present, the district court reasoned, Robinson “simply stood at the counter looking at a
binder for the majority of the video. While he may have looked around at times and assisted
a customer in the latter half of the video, these actions are not suspicious behavior for a
sales associate.” Id. at *10. A reasonable officer armed with the video evidence, the court
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concluded, would have had – at most – reasonable suspicion to investigate Robinson
further, not probable cause to arrest him.
With respect to the other evidence upon which Miller relied – principally, the
Hartwell Statement – the district court recognized, as described above, that it already had
found a genuine dispute of fact as to whether Miller knew of that evidence when Robinson
was arrested. See id. at *5 (describing the First Opinion). But even assuming that Miller
had known of the Hartwell Statement at the time of the arrest, the district court reasoned,
there still would be no probable cause, because the Statement was contradicted by other
evidence available to Miller.
As to Count II – the arrest without probable cause claims against Officers Peterson
and Moyer – the same basic analysis applied with respect to probable cause: The video
itself was insufficient to establish probable cause, and “as noted in the [c]ourt’s previous
opinion, there are genuine issues of material fact as to [what] additional information” was
possessed by the officers when they arrested Robinson. Id. at *12. Moreover, though
Peterson and Moyer’s claim to qualified immunity was bolstered by the fact that they
(unlike Miller) had consulted with a prosecutor before seeking an arrest warrant, “genuine
issues of material fact surrounding the conversation . . . with the prosecutor” precluded the
award of summary judgment on that ground. Id. at *12 and n.10.
Given these genuine disputes of material fact, the district court held, the officers
were not entitled to qualified immunity as a matter of law, and summary judgment was
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denied. * For essentially the same reasons it had given in its first opinion, the district court
also denied, again, the defendants’ motion for summary judgment on Robinson’s § 1983
Monell claim and state-law claims.
This timely appeal followed.
II.
Before proceeding to the merits, we must “first satisfy ourselves of our jurisdiction”
over this appeal. Cooper v. Sheehan, 735 F.3d 153, 157 (4th Cir. 2013). The district
court’s second decision in this case, denying summary judgment to the defendants,
ordinarily would not qualify as a “final decision” over which we have jurisdiction under
28 U.S.C. § 1291. See Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015) (citation and
internal quotation marks omitted); Bellotte v. Edwards, 629 F.3d 415, 426 (4th Cir. 2011).
*
We understand the district court to have denied summary judgment on this basis
with respect to Officer Miller, see Second Opinion, 2018 WL 3614208, at *11–*12, as well
as with respect to Officers Peterson and Moyer, see id. at *12. As noted above, in analyzing
Robinson’s claim against Miller, the district court did assume for the sake of argument that
Miller had access to the Hartwell Statement when he arrested Robinson, and still found an
absence of probable cause. Id. at *10. But at the same time, the district court specifically
identified as a genuine dispute of fact the question of whether Miller actually did have
access to the Hartwell Statement. See First Opinion, 2015 WL 5298965, at *24 (discussing
conflicting evidence); Second Opinion, 2018 WL 3614208, at *5 (describing factual
dispute identified in the First Opinion). A district court, of course, cannot resolve disputed
issues of fact on a motion for summary judgment, and so we read the district court opinion
as assuming only for the sake of argument that the Hartwell Statement was available to
Miller when he arrested Robinson, and denying summary judgment in light of what it
described as a “record [] riddled with inconsistencies and questions of fact as to what
knowledge the Individual Defendants” – all three police officers, see First Opinion, 2015
WL 5298965, at *1 – “possessed when they executed the respective arrests of [Robinson].”
Id. at *37.
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But as we explained in our first encounter with this case, under the collateral order doctrine,
this court does 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.’” See Robinson I, 662 F. App’x at
219 (quoting Mitchell, 472 U.S. at 530).
In this interlocutory posture, though, our review is limited: We may address only
purely legal questions, such as whether uncontroverted facts show that probable cause
existed to make an arrest, see Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir. 2012), or
whether the federal right allegedly infringed was clearly established, see Behrens v.
Pelletier, 516 U.S. 299, 313 (1996). What we may not do is 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) (citation omitted).
That limit on our jurisdiction is critical here. On appeal, the officers’ primary
argument is that they are entitled to qualified immunity because an objectively reasonable
officer, taking into account not only the surveillance video but also the Hartwell Statement,
would have believed that there was probable cause to arrest Robinson. The officers
acknowledge that the district court excluded the Hartwell Statement from its probable
cause analysis. But, they insist, that was in error: Properly understood, the pretrial record
does not give rise to a genuine factual dispute as to whether the officers had access to the
Hartwell Statement before making their respective arrests, but instead makes clear that they
did.
Whatever the merits of the officers’ fact-based argument – and we appreciate that
the record in this case is lengthy and complex – we lack the jurisdiction to address it in this
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interlocutory posture. See Gould, 165 F.3d at 268. The district court, applying the correct
summary judgment standard and properly viewing the record in the light most favorable to
the plaintiff, see First Opinion, 2015 WL 5298965, at *6–*7; Second Opinion, 2018 WL
3614208, at *7, found that the pretrial evidence – including Officer Miller’s own testimony
– made it “entirely unclear” whether Miller had knowledge of the Hartwell Statement when
he arrested Robinson, First Opinion, 2015 WL 5298965, at *24, and that the record was
similarly unclear as to whether Officers Peterson and Moyer knew of the Statement prior
to Robinson’s second arrest, see id. at *26. “Whether we agree or disagree with the district
court’s assessment of the record evidence on that issue . . . is of no moment in the context
of this interlocutory appeal,” Culosi v. Bullock, 596 F.3d 195, 201 (4th Cir. 2010), in which
our jurisdiction extends only to purely legal questions, see Mitchell, 472 U.S. at 530.
When it comes to Robinson’s claims that he was arrested without probable cause,
in other words, our jurisdiction is limited to one “narrow legal question”: Taking the facts
“as the district court gives them to us” and viewed in the light most favorable to Robinson
as the plaintiff, are the officers entitled to qualified immunity? See Williams, 917 F.3d at
768. We turn now to that question, and then address whether our jurisdiction extends to
the remaining issues raised by the defendants on appeal.
III.
A.
“We review de novo a district court’s decision to deny a summary judgment motion
asserting qualified immunity. Summary judgment is appropriate ‘if the movant shows that
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there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (citation omitted)
(quoting Fed. R. Civ. P. 56(a)). Where, as here, the district court articulates the facts as it
viewed them in determining that summary judgment was inappropriate, our task is simple:
We “must accept those facts and then determine whether, based on those facts, a reasonable
person in the defendant’s position could have believed that he or she was acting in
conformity with the clearly established law at the time.” Gray Hopkins v. Prince George’s
Cty., Md., 309 F.3d 224, 229 (4th Cir. 2002).
There is no dispute in this case as to the underlying Fourth Amendment standard
that governs Robinson’s two arrests. “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 Robinson was arrested without probable cause, as we explained
in Robinson I, turns on an objective assessment of whether a reasonable officer, viewing
the evidence within the knowledge of the defendant officers at the time of Robinson’s
arrests, would be warranted in believing to a fair probability that Robinson had engaged in
criminal activity. See 662 F. App’x at 220. And even if the individual defendants lacked
probable cause, they nonetheless would be entitled to qualified immunity “if a reasonable
person in the official’s position could have failed to appreciate” that probable cause did not
exist. Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (quotation omitted).
Applying that well-established standard, the district court correctly determined that
the individual defendants were not entitled to qualified immunity on the current record. It
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is undisputed that Officers Miller, Peterson, and Moyer all had viewed the Walmart
surveillance videos by the time of the relevant arrests. But the district court concluded that
no “reasonable and prudent person” would believe that Robinson’s “appearance in the
second video alone provides a basis to believe that [Robinson] was engaging in criminal
activity.” Second Opinion, 2018 WL 3614208, at *10 (emphasis added). Like the
defendants, who conceded the point at oral argument on appeal, we agree.
The video does show, as the district court acknowledged, Robinson at the scene and
in close proximity to Hartwell while Hartwell takes iPods from the Walmart display case.
“Presence at a crime scene or accompanying someone who engages in criminal activity,”
however, does not by itself establish probable cause of involvement in the criminal offense.
Id. at *9 (citing Taylor, 81 F.3d at 434). It may well be, as the district court supposed, that
Robinson’s behavior as shown on the video – continuously and steadfastly “flipping
through the pages of [a] binder” while Hartwell removes the iPods, id. at *9 – would meet
the lower standard of reasonable suspicion, allowing for certain investigative steps short of
arrest. See id. at *10. But standing alone, it does not give rise to an objectively reasonable
belief in the probable cause required to justify an arrest.
Because of our limited jurisdiction on this interlocutory appeal, that essentially ends
the matter. As noted above, the defendants do not dispute that the video alone is
insufficient to establish their qualified immunity, and instead rely on the video in
combination with other evidence, chiefly the Hartwell Statement. But as we have
explained, we have no jurisdiction, in this interlocutory posture, to review the district
court’s determination that the pretrial record generates genuine disputes of fact as to
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whether any of the officers had knowledge of the Hartwell Statement – or any other
relevant evidence – before Robinson’s arrests. Nor may we reevaluate the district court’s
conclusion that there are genuine questions of fact regarding the content of the conversation
Officers Peterson and Moyer had with a prosecutor before arresting Robinson. Considering
the facts as given to us by the district court, as we must do at this stage of the proceedings,
see Williams, 917 F.3d at 768, we agree that the current record precludes an award of
qualified immunity as a matter of law. We therefore affirm the district court’s denial of
summary judgment to the defendant officers on Robinson’s claims that he was arrested
without probable cause.
B.
The defendants also seek review of the district court’s decision on two additional
fronts, challenging the court’s denial of their summary judgment motion with respect to
Robinson’s § 1983 failure-to-train claim against the City and Robinson’s state-law claims
against the individual officers. At this stage of the litigation, however, that challenge is
premature: Denial of summary judgment on these issues is not a “final decision” for
purposes of 28 U.S.C. § 1291, the defendants have not attempted to assert any distinct
grounds for jurisdiction, and we decline to exercise pendent appellate jurisdiction here.
“It borders on the axiomatic that, subject to certain limited exceptions, our appellate
jurisdiction is limited to final orders from the district courts.” Rux v. Republic of Sudan,
461 F.3d 461, 474 (4th Cir. 2006) (citing 28 U.S.C. § 1291). Moreover, interlocutory
review of the individual defendants’ qualified immunity claims does not automatically or
inevitably confer jurisdiction over other contested issues in the case. See Swint v.
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Chambers Cty. Comm’n, 514 U.S. 35, 43–51 (1995). Far from it: Our authority to exercise
pendent appellate jurisdiction in these circumstances is “an exception of limited and narrow
application,” available “only (1) when an issue is ‘inextricably intertwined’ with a question
that is the proper subject of an immediate appeal; or (2) when review of a jurisdictionally
insufficient issue is ‘necessary to ensure meaningful review’ of an immediately appealable
issue.” Rux, 461 F.3d at 475 (quoting Swint, 514 U.S. at 50–51). Here, our holding – that
the record, as construed by the district court, does not allow for an award of qualified
immunity as a matter of law – resolves neither the Monell claim against the City nor the
state-law claims against the individual officers, and does not otherwise fall within the Swint
exceptions. See Evans v. Chalmers, 703 F.3d 636, 654 n.11, 658 (4th Cir. 2012) (holding
that a Monell claim may be “inextricably intertwined” under Swint with an interlocutory
review of qualified immunity where “our determinations of the individual officers’
qualified immunities fully resolve the issue of the City’s Monell liability”).
Perhaps recognizing the difficulty here, the defendants simply do not address this
jurisdictional issue. They have not argued that jurisdiction is proper under Swint, nor have
they directly requested that this court exercise pendent appellate jurisdiction over the
Monell or state-law claims at issue. Even assuming we could take pendent appellate
jurisdiction over either of those claims, moreover, “the decision to exercise such
jurisdiction is purely discretionary,” Clem v. Corbeau, 284 F.3d 543, 549 n.2 (4th Cir.
2002) (citing DiMeglio v. Haines, 45 F.3d 790, 808 (4th Cir. 1995)), and we would decline
to exercise any such jurisdiction here. We therefore dismiss the defendants’ appeal from
the denial of summary judgment on Robinson’s Monell and state-law claims.
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IV.
For the foregoing reasons, we affirm the district court’s denial of summary judgment
to the defendants on Robinson’s claims that he was arrested without probable cause,
included in Counts I and II of the complaint, and dismiss the appeal from the denial of
summary judgment on Robinson’s Monell and state-law claims, contained in Counts III,
IV, and V of the complaint.
AFFIRMED IN PART AND DISMISSED IN PART
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