Danny Rowell v. City of Hickory

Filing 920090827

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1791

DANNY ROWELL, Plaintiff - Appellant, v. CITY OF HICKORY; T. E. HUNT, Defendants - Appellees.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Dennis L. Howell, Magistrate Judge. (5:07-cv-00075-DLH)

Argued:

May 13, 2009

Decided:

August 27, 2009

Before NIEMEYER, Circuit Judge, C. Arlen BEAM, Judge of the United States Court of Appeals Circuit, sitting by designation, and Joseph F. United States District Judge for the District of sitting by designation.

Senior Circuit for the Eighth ANDERSON, Jr., South Carolina,

Affirmed by unpublished per curiam opinion.

ARGUED: Phyllis Lile-King, PINTO, COATES, KYRE & BROWN, PLLC, Greensboro, North Carolina, for Appellant. Patrick Houghton Flanagan, CRANFILL, SUMNER & HARTZOG, LLP, Charlotte, North Carolina, for Appellees. ON BRIEF: Bradley P. Kline, CRANFILL, SUMNER & HARTZOG, LLP, Charlotte, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: This is an appeal of a grant of summary judgment in a lawsuit seeking damages arrest. arising The out of below, an who allegedly are the

unconstitutional

defendants

appellees here, are the City of Hickory, North Carolina, and one of its police officers, named in his official capacity. The

lower court granted summary judgment to the City of Hickory on several grounds, one of which was that the appellant, Danny

Rowell ("Rowell"), failed to present evidence that his allegedly unconstitutional arrest was the result of the implementation of an official policy, custom, or practice of the City of Hickory. Because this conclusion is sound, we affirm.

I. Rowell business met a in gentleman Hickory named in Ronald Eddings of 2004. while The on a

trip

December

two

apparently met at the hotel where Rowell was staying and spent the day drinking beer in and around the hotel. After they

exhausted the initial supply of beer, the two men took Rowell's car to purchase more. According to Rowell, he allowed Eddings

to drive the car because he (Rowell) felt it imprudent to drive after drinking. After the two men returned from purchasing

beer, Eddings asked to borrow Rowell's car.

Rowell agreed, but

on the condition that he come along while Eddings drove. 2

The next.

parties

present

different

versions

of

what

happened

Officer T.E. Hunt of the Hickory police department avers

that he observed Rowell's car traveling in the wrong lane of the road and that he had to quickly maneuver his police car in order to avoid a head-on collision with Rowell's car. Officer Hunt

alleges that he then turned his police car around, activated his traffic lights, and initiated a traffic stop. that Officer Hunt's version of events is Rowell contends not accurate.

According to Rowell, Eddings was not operating the car in an unusual manner. Rowell contends that the two men noticed a

police car following behind them and that Officer Hunt initiated the traffic stop after Eddings turned into a parking lot. There is also some dispute about what happened during the traffic stop, but none of it appears to be material. After

Officer Hunt approached the car, Eddings informed the officer that he did not have a valid driver's license. arrested Eddings after verifying this Officer Hunt After

information.

securing Eddings in the police car, Officer Hunt returned to question Rowell, who by all accounts had not behaved unusually during any portion of the traffic stop. After Rowell informed

Officer Hunt that he owned the car, Officer Hunt placed Rowell under arrest for aiding and abetting the unlicensed operation of a motor vehicle.

3

After

securing

Rowell

in

the

police

car,

Officer

Hunt

conducted a search of Rowell's vehicle.

In the search, Officer

Hunt discovered a small amount of a hard, white substance which Officer Hunt attested to believing, based on his knowledge,

experience, and training, to be cocaine base; commonly known as "crack" cocaine. Officer Hunt confronted Rowell with the

suspected contraband and Rowell claims to have declared that it was not cocaine base and that he had no drugs in the vehicle. Officer Hunt seized the suspected controlled substance and took both Eddings and Rowell before a magistrate. The magistrate

determined that Rowell's arrests for the traffic violation and for possession of a controlled substance were supported by

probable cause.

R.O.A. 750. 1

It is around this point that the timeline of this case took an unfortunate turn. Rowell posted bond the morning after his

arrest, but lost his job shortly thereafter as a result of the arrest. quickly continued defender. R.O.A. 329, 333. scheduled several Although Rowell had a relatively date Rowell in was court, the case a was

preliminary times.

appointed

public

R.O.A. 337.

It appears that in February of 2005,

We granted appellant leave to use the original record on appeal. Citations in this opinion will therefore sometimes be to the record on appeal ("R.O.A."), and at other times be to the joint appendix ("J.A."). J.A. 47.

1

4

Rowell believed the matter to be closed and decided to move to Virginia. R.O.A. 341. The matter was not closed, however, and

in April of 2005, which was about four months after Rowell's arrest, a grand jury in North Carolina returned an indictment charging Rowell with aiding and abetting the unlicensed

operation of a motor vehicle and with possession of cocaine. R.O.A. 766. When Rowell was thereafter arrested in Virginia in

connection with what appears to have been a minor fracas at a bar, the Virginia police discovered the pending North Carolina charges. R.O.A. 348. While awaiting extradition to North

Carolina, Rowell spent about twenty days in a Virginia jail. R.O.A. 352. Rowell spent about thirty additional days in jail

after he returned to North Carolina before he could post bond. R.O.A. 355. Rowell secured a different public defender, and the R.O.A. 356-58.

case was set for trial in January of 2006.

Rowell hired an attorney shortly before his trial date, the case was continued again, and Rowell's attorney eventually phoned him in the Spring of 2006 to tell him that the charges had been dismissed. R.O.A. 359, 361. The dismissal came about because a

laboratory report issued by the North Carolina State Bureau of Investigation concluded that the suspected cocaine seized from Rowell's car was in fact aspirin. R.O.A. 12, 14.

Rowell filed this lawsuit in May of 2007, J.A. 5, and the defendants removed the case to federal court, J.A. 1. 5 Spelled

out in seven causes of action, Rowell's complaint contended that the stop of his car was without probable cause; that the search of the car was unreasonable; that Rowell's criminal charges were not supported to by the probable North cause; that false evidence Rowell was was

presented

Carolina

grand

jury;

that

extradited from Virginia without probable cause; and that the defendants were negligent in failing to reasonably investigate Rowell's criminal charges. J.A. 8-13. Rowell contended that

these actions gave rise to liability in damages under 42 U.S.C. § 1983 (for violations of his Fourth and Fourteenth Amendment rights), and under North Carolina's common law. Id.

By the parties' consent, the case came before a magistrate judge on cross-motions for summary judgment. Noting that a

lawsuit against a municipal employee "in his official capacity" is a suit against the municipality, the magistrate dismissed the claims against Officer Hunt as "redundant." J.A. 21. The

magistrate then granted summary judgment to the City of Hickory on the grounds that Rowell's evidence did not show any

deficiency in the city's training, policies, and practices in operating its police department. J.A. 30. Along the way, the

magistrate excluded a portion of Rowell's expert's testimony and concluded that Officer Hunt's stop of the car, Rowell's arrest, and the search of the car were supported by probable cause. magistrate similarly disposed of 6 Rowell's state-law The

claims;

finding that a claim for false imprisonment does not lie when the complained-of imprisonment is an arrest supported by

probable cause.

J.A. 41.

This appeal followed.

II. We review a grant of summary judgment de novo. CACI

Intern., Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 155 (4th Cir. 2009). Rowell raises six issues on appeal, contending that the magistrate erred in adopting Officer Hunt's version of the facts in resolving the probable cause questions; in excluding the

testimony of Rowell's offered expert; in concluding that the stop and arrest that were the supported City of by probable did cause; not If and have Rowell in an is was

concluding

Hickory or

unconstitutional wrong on this

policy, last

custom, --

practice. if the

point

that

is,

magistrate

correct in concluding that there is no evidence in this case of a policy, practice, or custom of the City of Hickory which

caused a deprivation of Rowell's constitutional rights -- the other questions Rowell raises are academic matters. that Rowell is wrong on the point and we We conclude do not

therefore

address his remaining contentions. "Local governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . 7

the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers."

Monell v. Dep't of Soc. Serv. of the City of N.Y., 436 U.S. 658, 690 (1978). it "[A] employs municipality a cannot . . be . held in liable solely a

because

tortfeasor

other

words,

municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691 (emphasis in original). "Instead,

it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694. "[T]he inadequacy of police training may serve as

the basis for § 1983 liability," but "only where the failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact." v. Harris, 489 U.S. 378, 388 (1989).

City of Canton

At trial, Rowell focused on what he contended was Hickory police department's policy of arresting individuals for drug

offences without confirming that what the officer suspects is drugs is in fact the drugs. failure in the Appellee's to Brief the at 30. Rowell of a

contended controlled

that

confirm

presence of his

substance,

circumstances

arrest,

amounted to the arrest lacking probable cause. 8

As Rowell sees

it, "where the policy of the department is to not require field testing, which arguably would always provide the threshold

probable cause for an arrest, the department bears that much more responsibility for training and procedures that assure

probable cause supports its arrests."

Id. at 31.

In City of Canton, the case which provides the standard for this type of liability, a the court spoke of show the "deliberate the

indifference"

municipality

must

towards

constitutional rights of others, and the court described such indifference through specific examples. One example noted in

that case was a policy of vesting shift commanders with the sole discretion to determine when an individual in police custody needed medical attention. By vesting the commanders with this

discretion, the argument went that the municipality had a duty to provide the shift commanders with some medical instruction to guide them in making was a those decisions. providing 489 of U.S. at 381-82. to its

Another

example

city's

firearms

officers.

When a city does so, the court recognized the city's

duty to train officers in the constitutional limitations on the use of deadly force. court focused on Id. at 390 n.10. types of In both examples the entrusted to train to its

specific the

discretion need

municipal

employees,

municipality's

employees in exercising that discretion, and the harm of not providing such training. 9

Rowell's claim is of a different sort. gave Officer Hunt the power to arrest

The City of Hickory for drug

individuals

offences, but there is no dispute that Officer Hunt received instruction that an in constitutional be supported law, by including probable the requirement and in

arrest

cause,

identifying controlled substances. Officer Hunt's training didn't

Rowell simply contends that sink in. We have been

instructed, however, that the fact "[t]hat a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." Id. at 390-91. in the Basic Rowell does not point to specific deficiencies Law Enforcement Training Course Officer Hunt

completed at community college, nor does he point to deficient aspects of Officer Hunt's field training during his period of probationary employment with the City of Hickory. His claim is

that Officer Hunt did not understand the concept of probable cause, that he inaccurately identified a tablet of aspirin as cocaine, and that because the City of Hickory put him on patrol, the City of Hickory is responsible. This is exactly the type of

case City of Canton noted would not measure up. Rowell also fails to allege how providing additional

training would have made a difference in these circumstances. The only evidence we have in this case is that in the course of 10

a

search

incident which

to

an

arrest, to

Officer

Hunt

discovered based on

a

substance knowledge, Although

he

attested and

believing, to out be to

his base.

training,

experience, turned

cocaine be

Officer

Hunt's

belief

inaccurate,

Rowell has not pointed us to how the City of Hickory caused Officer Hunt's analysis to be flawed or unreasonable, and Rowell has not provided other examples of similar police encounters in the City of Hickory which might be fairly said to put the city on notice that its police officers made a habit of incorrectly identifying benign substances as illegal drugs. In short, there

is nothing suggesting that the city can be fairly said to have been "deliberately indifferent" to the constitutional rights of its citizens. Rowell simply posits that if the police

department does not have a policy of field testing, it needs to train its officers to identify controlled substances with more accuracy. This proposition is not persuasive. We have been

instructed that "adequately trained officers occasionally make mistakes," and "the fact that they do says little about the training liable." program or the legal basis for holding the city

Id. at 391.

Rowell's attempt to hamstring the city into liability by citing to statements by Officer Hunt and his supervisor that the arrest was "textbook" and "in conformance with official policy" do not help the case meet this threshold. 11 Officer Hunt thought

the arrest was "textbook" because he believed the arrest to be supported by probable cause. This belief was apparently shared

by Hunt's supervisor and the magistrate who performed the postarrest hearing. Rowell's argument along these lines is flatly

rejected by City of Canton, which noted that municipal liability "will not be satisfied by for a a merely of alleging that the existing police is

training officers,

program

class

employees, for which

such the

as

represents

policy

city

responsible."

Id. at 389.

Rowell has not presented a claim in

the mold of what the City of Canton concurring opinion termed a "failure to train concerning a clear constitutional duty" or a failure to train "where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional Id. at

violations involving the exercise of police discretion." 396-97.

Any offered parallel for this standard of liability and

Rowell's theory of this case simply does not hold. Two matters of housekeeping warrant quick mentioning. The

first is that at oral argument, Rowell shifted gears on his theory of the case completely and argued that the

unconstitutional police policy or custom in this case was to conduct a search of a suspect's vehicle after the suspect had been arrested and secured in a police car; a clear violation of the Fourth Amendment in light of the recent decision in Arizona v. Gant, No. 07-542 (U.S. Apr. 12 21, 2009). There are many

problems with this argument.

The most important is that it was

not presented below, and as a legal matter, the argument is therefore waived. See Malbon v. Pa. Millers Mut. Ins. Co., 636

F.2d 936, 941 (4th Cir. 1980) ("It is elementary that an issue not raised below will not, absent extraordinary circumstances . . . be considered on appeal."). As a practical matter, the fact

that it was not presented below represents why the record is not developed at all on the point. There is no evidence of the City

of Hickory's policy on training regarding searches incident to arrest and no characterizations and findings as to the city's actions in this area by a lower court. Indeed, the briefing in

this case contains no citations to Gant or discussion of what Hickory's policy on automobile searches incident to an arrest may have been. A remand would give Rowell the opportunity to

develop a record on the point, but Rowell cannot shift gears while his case is on appeal to take advantage of a new theory of liability that he did not assert below. The second housekeeping matter is one of, for lack of a better word, contrition. We ought to acknowledge that although

Rowell has presented no evidence that a policy of the City of Hickory caused a violation of his constitutional rights, the system did not act expediently in his case. When all is said

and done, this case may stand for the proposition that although an arrest and indictment be supported by probable cause, they 13

may also be founded on a genuine mistake.

It took a long time

for the criminal justice system to validate Rowell's protest that the substance seized from his car was not drugs, but this can hardly be said to be the City of Hickory's fault. appeal, we are in concerned for solely its with the in City of In this Hickory's

liability

damages

role

these

circumstances.

Though the timeliness of the system may have failed Rowell, he has not shown how a policy or custom of the City of Hickory caused a violation of his constitutional rights. For the foregoing reasons, the grant of summary judgment to the defendants is AFFIRMED.

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