Brandon Pegg v. Grant Herrnberger

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1999
BRANDON PEGG,
Plaintiff - Appellee,
v.
GRANT HERRNBERGER, individually and in his capacity as agent
and employee of the West Virginia State Police,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
District Judge. (5:14-cv-00116-JPB)
Argued: October 27, 2016 Decided: January 4, 2017
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Reversed and remanded with instructions by published opinion.
Judge Agee wrote the opinion, in which Judge Niemeyer and Judge
King joined.
ARGUED: Monte Lee Williams, STEPTOE & JOHNSON PLLC, Morgantown,
West Virginia, for Appellant. Robert G. McCoid, MCCAMIC, SACCO
& MCCOID, P.L.L.C., Wheeling, West Virginia, for Appellee. ON
BRIEF: Deva A. Solomon, Robert L. Bailey, STEPTOE & JOHNSON
PLLC, Morgantown, West Virginia, for Appellant. Paul J. Harris,
HARRIS LAW OFFICES, Wheeling, West Virginia, for Appellee.
AGEE, Circuit Judge:
Brandon Pegg sued West Virginia State Trooper Grant
Herrnberger, alleging that Herrnberger used excessive force in
effectuating the arrest of Pegg, in violation of state and
federal law. Herrnberger appeals the district court’s denial of
his motion for summary judgment based upon that court’s holding
Herrnberger was not, as a matter of law, entitled to qualified
immunity. For the reasons that follow, we reverse the district
court’s order denying Herrnberger’s motion for summary judgment
and remand with instructions to enter judgment in favor of
Herrnberger.
I. Factual Background
On August 4, 2013, Herrnberger and another trooper, William
Beck, were examining an abandoned vehicle on the side of the
road when Brandon Pegg drove by slowly in his truck with the
driver’s side window open. Herrnberger noticed the truck had an
expired inspection sticker and called out to Pegg to stop the
vehicle. Pegg did not stop and sped away. The troopers then
left in pursuit of Pegg’s truck and eventually pulled him over.
Beck approached the driver’s side of Pegg’s vehicle to
speak with Pegg while Herrnberger approached the passenger side
to speak with the front passenger, Robert Beever. When
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Herrnberger asked to see Beever’s identification, Pegg asked why
Beever needed to produce identification.
Herrnberger contends that Pegg then reached for something
between his legs, a claim Pegg denies. Herrnberger asserts that
Pegg’s reaching motion appeared suspicious, so he approached the
driver’s door and ordered Pegg out of his truck. Pegg complied
and followed Herrnberger to the rear of Pegg’s truck.
Herrnberger then instructed Pegg to face the truck, put his
hands behind his back, and lock his hands together. Before Pegg
turned to face the truck, Herrnberger demonstrated how Pegg
should lock his hands together.
Pegg placed his left hand at the small of his back and
began to bring his right arm behind his back, but did not
interlock his hands as instructed. Herrnberger grabbed Pegg’s
right arm. Pegg then turned and said “Why is this happening or
something along those lines” to Herrnberger and pulled his right
arm away from the trooper. J.A. 46. Herrnberger then pushed
Pegg against the truck with his left arm, and attempted to pull
Pegg’s right arm back, which Pegg resisted. Herrnberger then
took Pegg to the ground, and both troopers pinned Pegg there and
handcuffed him in an event that took less than forty seconds
before Pegg was helped to his feet. As a result, Pegg claims he
suffered minor scrapes and abrasions on his head, which he
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treated with peroxide and Neosporin, but did not seek medical
attention.
The troopers arrested Pegg for assaulting a police officer
(W. Va. Code § 61-2-10b(e)), obstructing an officer (W. Va. Code
§ 61-5-17(a)), and driving with an expired inspection sticker
(W. Va. Code § 17C-16-9). Pegg was jailed for 8–12 hours before
released. A magistrate judge dismissed the assault charge for
lack of probable cause, and the prosecuting attorney dismissed
the rest of the charges for reasons not apparent on the record.
Pegg then filed a complaint in the U.S. District Court for
the Northern District of West Virginia against Herrnberger,
individually and in his official capacity pursuant to 42 U.S.C.
§ 1983. The complaint alleged federal claims of unlawful
arrest, retaliatory arrest, and excessive force, and state
claims of outrage/intentional infliction of emotional distress
and battery. Herrnberger filed a motion for summary judgment,
arguing that the suit was barred against him in his official
capacity based on sovereign immunity and in his individual
capacity because of qualified immunity.
The district court granted Herrnberger’s motion for summary
judgment in part and denied it in part. All claims against
Herrnberger in his official capacity were dismissed as barred by
sovereign immunity. Pegg does not challenge the district
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court’s ruling as to the official capacity claims. 1 The
district court denied summary judgment for the claims against
Herrnberger in his individual capacity, ruling he was not
entitled to qualified immunity.
Herrnberger filed a timely appeal, and we have jurisdiction
of the appeal under 28 U.S.C. § 1291. See Am. Civil Liberties
Union, Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th Cir. 1993)
(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (stating
questions of law surrounding qualified immunity are appealable
as final decisions within the meaning of § 1291).
II. Analysis
“We review de novo a district court’s denial of summary
judgment and qualified immunity, construing all facts in the
light most favorable to the nonmovant.” Orem v. Rephann, 523
F.3d 442, 445 (4th Cir. 2008). Thus, for purposes of our review
here, we construe all facts in the light most favorable to Pegg
as non-moving party. For issues concerning qualified immunity,
we have jurisdiction to consider purely legal questions, but not
over the district court’s “determination that the summary
judgment record in this case raised a genuine issue of fact”
1A fifth claim, for false imprisonment, was dismissed as
barred by the statute of limitations and is also not at issue on
appeal.
5
because that is not a final decision for purposes of 28 U.S.C. §
1291. Johnson v. Jones, 515 U.S. 304, 313 (1995). 2 Put another
way, “we possess no jurisdiction over a claim that a plaintiff
has not presented enough evidence to prove that the plaintiff’s
version of the events actually occurred, but we have
jurisdiction over a claim that there was no violation of clearly
established law accepting the facts as the district court viewed
them.” Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997).
Consequently, we accept the facts as the district court
articulated them when it determined whether summary judgment was
appropriate, and then we 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., 309 F.3d 224, 229 (4th Cir. 2002).
“Qualified immunity protects officers who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). When evaluating whether a right was clearly
established at the time of a violation, courts do not ask
“whether the right allegedly violated was established ‘as a
2 The opinion omits internal quotation marks, alterations,
and citations here and throughout, unless otherwise noted.
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broad general proposition’ but whether ‘it would be clear to a
reasonable official that his conduct was unlawful in the
situation he confronted.’” Raub v. Campbell, 785 F.3d 876, 882
(4th Cir. 2015) (quoting Saucier v. Katz, 533 U.S. 194, 201–202
(2001)).
A. Qualified Immunity for Unlawful Arrest
The district court determined that Herrnberger’s arrest of
Pegg was unlawful because it believed Herrnberger did not
“principally” arrest Pegg for the expired inspection sticker.
Instead, the district court opined the arrest was “for
obstructing an officer only after he asked [Herrnberger] a
question during the traffic stop.” J.A. 376.
Herrnberger denies that motivation and, in any event,
argues that purported subjective reasons for arresting Pegg
should not enter into the qualified immunity analysis because
Pegg’s violation of West Virginia law constituted probable cause
for the arrest. Therefore, with probable cause to arrest,
Herrnberger contends he is entitled to qualified immunity. We
agree with Herrnberger.
The Supreme Court has stated unequivocally that “[i]f an
officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the
offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354
7
(2001). In Atwater, the arrestee committed a seat belt
violation punishable only by a fine. Nonetheless, the Supreme
Court held that the Fourth Amendment does not forbid a
warrantless arrest for such a minor violation. Id.
Here, Pegg admits that his vehicle had an expired
inspection sticker in violation of West Virginia law. 3 See W.
Va. Code § 17C-16-9. Further, he admits this violation occurred
in Herrnberger’s presence. Therefore, just as in Atwater,
though Pegg’s offense was minor, the Fourth Amendment does not
forbid a warrantless arrest for such a violation.
The Supreme Court specifically rejected in Atwater the
argument Pegg makes here: that the Fourth Amendment would forbid
“custodial arrest, even upon probable cause, when conviction
could not ultimately carry any jail time . . . .” Atwater, 532
U.S. at 346. Under Atwater, therefore, whether or not a § 17C-
16-9 violation is a jailable offense is irrelevant for purposes
of the application of qualified immunity.
Pegg attempts to distinguish Atwater by arguing that unlike
the Texas seatbelt statute at issue in that case, § 17C-16-9 is
not an offense subject to a custodial arrest or punishable by
incarceration. He argues that § 17C-16-9 is not among the list
3 “Request No. 1: Admit that on August 4, 2013, at
approximately 11:30 a.m., you were operating a vehicle that had
an expired inspection sticker. Response: Admitted.” J.A. 101.
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of traffic offenses that a separate statute, § 17C-19-3,
enumerates as warranting arrest. But that contention –- even if
a correct recitation of state law –- is of no consequence under
Atwater for Fourth Amendment qualified immunity purposes. Id.
In any event, under West Virginia law, police officers have
the authority to effect an arrest for minor traffic violations,
including the one at issue here. The language of § 17C-19-3
does not support the reading of the statute that Pegg advances.
See § 17C-19-3 (prescribing arrest for traffic violations in
“any of the following cases,” not in “only the following cases”)
(emphasis added). Similarly, the statute that controls the
procedure for issuing traffic citations, § 17C-19-4, does not
prohibit an officer from making an arrest instead of issuing a
citation. That these two provisions do not prohibit an officer
from making arrests for certain minor offenses is supported by
yet another West Virginia statute pertaining to traffic
regulations, § 17C-19-5, which provides that “the procedure
prescribed [in Chapter 17] shall not otherwise be exclusive of
any other method prescribed by law for the arrest and
prosecution of a person for an offense of like grade.” Such
alternative method is described in § 15-2-12(b)(1), which
empowers West Virginia State Troopers to make warrantless
arrests when witness to “any offense or crime” (emphasis added).
As noted earlier, Pegg does not deny that his offense of
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operating a motor vehicle with an expired inspection sticker
occurred in the presence of Herrnberger. As a result, under
Atwater and the West Virginia statutes, Herrnberger had probable
cause to arrest Pegg for the expired inspection sticker
violation.
The district court’s determination that Herrnberger
arrested Pegg “in practicality” for assault and obstruction of
justice, instead of the expired inspection sticker, is also
ultimately irrelevant. J.A. 375. The proper focus of the
inquiry is not any subjective reason for arresting Pegg, but
only the objective facts surrounding the arrest. As the Supreme
Court has previously explained, the “subjective reason for
making the arrest need not be the criminal offense as to which
the known facts provide probable cause.” Devenpeck v. Alford,
543 U.S. 146, 153 (2004). Instead, the Fourth Amendment
requires an analysis under which a police officer’s action is
not invalidated “‘as long as the circumstances, viewed
objectively, justify that action.’” Id. (quoting Whren v.
United States, 517 U.S. 806, 813 (1996)) (emphasis added). The
objective and undisputed fact of Pegg’s violation of § 17C-16-9
is fully sufficient, in and of itself, to justify his arrest. 4
4
Pegg’s violation of § 17C-16-9 established probable cause
for his arrest and a search incident to that arrest.
Accordingly, we need not consider whether Herrnberger’s actions
(Continued)
10
Thus, Herrnberger did not violate the Fourth Amendment and he is
entitled to qualified immunity on this claim as a matter of law.
The district court erred in failing to grant summary judgment to
Herrnberger on Pegg’s claim of unlawful arrest.
B. Qualified Immunity for Retaliatory Arrest
The probable cause inherent in Pegg’s violation of § 17C-
16-9 also defeats his First Amendment retaliatory arrest claim.
The Supreme Court “has never recognized a First Amendment right
to be free from a retaliatory arrest that is supported by
probable cause.” Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012). Since the Reichle decision, no such right has been
recognized, so the Reichle principle is fully controlling here.
Pegg’s violation of § 17C-16-9 gave Herrnberger probable cause
to arrest Pegg; therefore his arrest was not retaliatory.
Contrary to the district court’s conclusion, it is not
enough, that Pegg “simply plead ‘an absence of probable cause’”
for his claim to survive summary judgment. J.A. at 377 (citing
Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013)). The basis
for that rule is the assumption that “‘probable cause or its
were also permitted under Terry v. Ohio, 392 U.S. 1 (1968). See
United States v. Robinson, 414 U.S. 218, 235 (1973) (“A
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under U.S. Const. amend. IV; that intrusion
being lawful, a search incident to the arrest requires no
additional justification.”).
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absence will be at least an evidentiary issue in practically all
cases.’” Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013)
(quoting Hartman v. Moore, 547 U.S. 250, 265 (2006)). But in
distinction from the appeal in Tobey from the denial of a motion
to dismiss, the instant case is a decision on summary judgment.
This case is not one where probable cause remains an evidentiary
issue; it is undisputed that Pegg violated § 17C-16-9 in the
arresting officer’s presence, thereby establishing the probable
cause for his arrest. Herrnberger is thus entitled to qualified
immunity on this claim as well and the district court erred in
not granting his motion for summary judgment.
C. Qualified Immunity for Excessive Force
The district court concluded that Herrnberger was not
entitled to qualified immunity for Pegg’s claim of excessive
force on the basis of its finding that Herrnberger was
“potentially . . . pre-disposed to using force to arrest
[Pegg].” Herrnberger denies any such subjective predisposition,
but argues again that any subjective motivations in the mind of
the police officer do not factor into the qualified immunity
analysis. We again agree with Herrnberger.
An inquiry into any predisposition for force on the part
of Herrnberger is an improper mode of analysis for a Fourth
Amendment excessive force claim. “Subjective factors involving
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the officer’s motives, intent, or propensities are not
relevant.” Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).
To determine whether a police officer applied excessive
force in violation of the Fourth Amendment, we instead examine
officers’ actions “in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989).
Specifically, we examine “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Id. at 396.
As when examining the lawfulness of an arrest, “[w]hether an
officer has used excessive force is analyzed under a standard of
objective reasonableness.” Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011).
Though Pegg’s crime was not severe, he admits that he
resisted arrest. 5 We conclude Herrnberger applied no more force
than necessary to overcome that resistance. Viewing the
evidence in the light most favorable to Pegg, after Pegg placed
his left hand behind his back he failed to interlock his hands
as Herrnberger had just demonstrated to him seconds earlier.
5“Request No. 6: Admit that you resisted Trooper
Herrnberger’s attempt to secure your hands behind your back.
Response: Admitted.” J.A. 101.
13
Pegg then attempted to withdraw his right arm from Herrnberger's
grasp. Herrnberger then briskly, but safely, took Pegg to the
ground. Pegg remained on the ground for less than a minute and
no longer than the time Herrnberger needed to handcuff him.
According to Pegg’s own statements, Herrnberger did not strike,
kick, or verbally abuse him. Instead, Herrnberger performed a
simple maneuver to ensure Pegg’s compliance. Once Pegg was
handcuffed, Herrnberger assisted Pegg back to a standing
position and refrained from any further physical contact. As a
result of the encounter, Pegg claims abrasions minor enough that
he treated them at home with Neosporin and peroxide and did not
seek medical assistance. An efficient, lawful arrest of a
resisting suspect that causes the suspect to suffer only de
minimis injuries does not constitute excessive force.
Herrnberger’s actions were objectively reasonable and he is
entitled to qualified immunity as a result. The district court
erred in holding to the contrary.
D. Qualified Immunity for West Virginia State Law Claims
Pegg’s complaint also alleged West Virginia state law
claims for battery and outrage (intentional infliction of
emotional distress) against Herrnberger. Under West Virginia
law, a police officer is not entitled to qualified immunity when
his or her conduct results in a clearly established
constitutional or statutory violation. See Hutchinson v. City
14
of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996). A police
officer is also not entitled to qualified immunity under West
Virginia law if his or her conduct is “fraudulent, malicious, or
otherwise oppressive.” Id.
1. Battery
Battery under West Virginia law tracks the elements set
forth in the Restatement (Second) of Torts: an individual
commits battery when “(a) he acts intending to cause a harmful
or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b) a
harmful contact with the person of the other directly or
indirectly results.” W. Va. Fire & Cas. v. Stanley, 602 S.E.2d
483, 494 (W. Va. 2004) (quoting the Restatement). Moreover,
lawful arrests are excluded from the scope of West Virginia
battery. A person lawfully performing an arrest is afforded a
privilege to engage in arrests within the limit of their
jurisdiction, so long as the force is not excessive.
Restatement (Second) at § 118; 132.
Relying on its analysis of the claims for unlawful arrest
and excessive force, the district court held that a reasonable
trier of fact could conclude “the force [Herrnberger] used was
unreasonable in the instant case.” J.A. 383. As should be
evident from our analysis of the foregoing federal claims,
Herrnberger did not apply excessive force when arresting Pegg.
15
Accordingly, his contact with Pegg would be privileged for
qualified immunity purposes so long as it was not fraudulent,
malicious, or otherwise oppressive. Pegg has made no such
argument and there is nothing in the record that would allow a
conclusion that Herrnberger’s alleged actions were malicious or
oppressive. Herrnberger remained calm throughout the
interaction and applied no more force than necessary to effect a
lawful arrest. Moreover, that force was momentary and slight.
Herrnberger is thus entitled to qualified immunity on this claim
as well. The district court erred in finding otherwise.
2. Outrage, or Intentional Infliction of Emotional Distress
Pegg argued, and the district court agreed, that
Herrnberger effected an unlawful arrest with excessive force,
which Pegg characterized as a violation of the special trust
society bestows upon law enforcement officers egregious enough
to support an outrage claim. Herrnberger responded that the
arrest was lawful and performed with only the necessary force
and therefore cannot form the basis of an outrage claim.
Herrnberger is correct.
Under West Virginia law, to establish the tort of outrage,
more commonly known as intentional infliction of emotional
distress, the plaintiff must establish four elements:
(1) that the defendant’s conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency;
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(2) that the defendant acted with the intent to
inflict emotional distress, or acted recklessly
when it was certain or substantially certain
emotional distress would result from his conduct;
(3) that the actions of the defendant caused the
plaintiff to suffer emotional distress and;
(4) that the emotional distress suffered by the
plaintiff was so severe that no reasonable person
could be expected to endure it.
Loudin v. Nat’l Liab. & Fire Ins., 716 S.E.2d 696, 705 (W. Va.
2011).
It is difficult to overstate the high burden of proof
required to sustain a tort claim for intentional infliction of
emotional distress/outrage. West Virginia courts only find
liability for outrage “‘where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’ This is a high
standard indeed.” Keyes v. Keyes, 392 S.E.2d 693, 696 (W. Va.
1990) (quoting Harless v. First Nat’l Bank, 289 S.E.2d 692, 703–
04, n. 20 (W. Va. 1982)).
Viewed objectively and in the light most favorable to Pegg,
his outrage claim does not come close to meeting the legal
threshold. Herrnberger’s conduct does not rise to the level of
battery, much less clear the much higher bar required for
outrage. A lawful arrest performed without excessive force is,
at worst, conduct that is “merely annoying, harmful of one’s
17
rights or expectations, uncivil, mean-spirited, or negligent.”
Courtney v. Courtney, 413 S.E.2d 418, 423 (W. Va. 1991), rev’d
on other grounds, Courtney v. Courtney, 437 S.E.2d 436 (W. Va.
1993)). Herrnberger’s arrest of Pegg was lawful and without
excessive force and does not “constitute outrageous conduct.”
Id. The facts of this case are markedly milder than the kind of
conduct courts applying West Virginia law have found necessary
to support an intentional infliction of emotional distress
claim. See, e.g., Heldreth v. Marrs, 425 S.E.2d 157, 161–62 (W.
Va. 1992) (allowing an outrage claim to proceed when a husband
suffered a heart attack after witnessing his wife get struck by
a car and die); Hutchinson v. W. Virginia State Police, 731 F.
Supp. 2d 521, 531 (S.D. W. Va. 2010) (finding a legally
cognizable claim for outrage for a female suspect who was pulled
from the shower by the hair during the execution of a search
warrant and forced to lie down naked for at least 45 minutes in
the presence of eleven male law enforcement officers, one of
whom slapped her behind) aff’d sub nom. Hutchinson v. Lemmon,
436 F. App’x 210 (4th Cir. 2011). But see Keyes, 392 S.E.2d at
694 (disallowing an outrage claim when a family excluded a son
from his father’s obituary, burial plans, and the car ride to
the funeral); Lee v. City of S. Charleston, 668 F. Supp. 2d 763,
779 (S.D. W. Va. 2009) (disallowing outrage claim based on a
roadside public strip search that exposed arrestee’s genitals to
18
the arresting officer); Lowe v. Spears, 2009 WL 1393860, at * 6
(S.D. W. Va. May 15, 2009) (disallowing outrage claim when an
officer arrested an individual for a minor offense, possibly in
response to arrestee’s use of profanity toward the officer).
Herrnberger is entitled to qualified immunity on this claim
and the district court erred in concluding otherwise.
III. Conclusion
For the foregoing reasons, we reverse the district court’s
order denying Herrnberger’s motion for summary judgment. He was
entitled to qualified immunity for all claims as a matter of
law. The case is therefore remanded to the district court for
the entry of judgment in favor of Herrnberger on all claims.
REVERSED AND REMANDED
WITH INSTRUCTIONS
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