Peggy Russ v. Sid Causey

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 7:09-cv-00017-FL Copies to all parties and the district court/agency. [998795719].. [10-2016]

Appeal: 10-2016

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Date Filed: 02/24/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2016

PEGGY RUSS; TAFFY GAUSE,
Plaintiffs - Appellees,
v.
SID CAUSEY; ED MCMAHON; LACHLAN MACNEISH; DOUG PRICE; ERIC
BROWN; VERNON JORDAN; OHIO CASUALTY INSURANCE COMPANY;
BRANDON MATT JORDAN,
Defendants - Appellants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Louise W. Flanagan,
Chief District Judge. (7:09-cv-00017-FL)

Argued:

October 26, 2011

Decided:

February 24, 2012

Before KING, GREGORY, and WYNN, Circuit Judges.

Affirmed by unpublished opinion.
Judge Gregory wrote the
majority opinion, in which Judge Wynn joined. Judge King wrote
a dissenting opinion.

ARGUED: James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC, Winston-Salem, North Carolina, for Appellants.
Matthew
William Buckmiller, SHIPMAN & WRIGHT, LLP, Wilmington, North
Carolina, for Appellees.
ON BRIEF: Bradley O. Wood, Julie B.
Bradburn, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem,
North Carolina, for Appellants.
Gary K. Shipman, SHIPMAN &
WRIGHT, LLP, Wilmington, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
In

this

case,

Plaintiffs-Appellees

Peggy

Russ

and

Taffy

Gause asserted a number of claims for relief against the former
sheriff of New Hanover County, Sid Causey, and a number of his
deputies

in

both

their

individual

and

official

capacities.

Their claims are premised on the defendants’ conduct during the
arrest

of

their

son

and

brother,

respectively,

Gladwyn

Taft

Russ, III (“GT Russ III”) 1 at the funeral of their husband and
father, Gladwyn Taft Russ Jr. (“GT Russ Jr.”).

Specifically,

Russ and Gause alleged (1) deprivation of their Fourth Amendment
right to privacy in violation of 42 U.S.C. §

1983, (2) assault;

(3) intentional infliction of emotional distress, (4) negligent
infliction of emotional distress, (5) invasion of privacy, and
(6)

negligence.

The

defendants

asserted

various

defenses,

including governmental immunity and public officer’s immunity,
and moved for summary judgment.

On August 5, 2010, the district

court granted in part and denied in part the defendants’ motion
for summary judgment.
At

issue

on

appeal

is

the

district

court’s

denial

of

defendants Eric Brown, B. Matt Jordan, and Doug Price’s motion
for summary judgment as to the Plaintiffs-Appellees’ state law

1

GT Russ III is not a party to this action.

3

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claims

for

Date Filed: 02/24/2012

intentional

Page: 4 of 32

infliction

of

emotional

distress,

negligent infliction of emotional distress, and negligence.
addition

to

defendants

allowing

in

their

allowed

these

Jordan,

and

defendants’

these

official

claims
Price

to

in

affirmative

claims

to

proceed

capacities, 2

proceed

their
defense

against

individual
of

public

the

against

district

defendants
capacities,
officer’s

In
the

court
Brown,

denying
immunity.

Defendants argue that the district court erred in concluding
that

Brown,

officer’s

Jordan,

immunity

and
as

a

Price

were

not

entitled

of

law

because

matter

to

public

Plaintiffs-

Appellees failed to produce evidence that the deputies’ actions
were corrupt, malicious, or outside the scope of their official
duties.

We disagree.

Because Plaintiffs-Appellees have put

forth facts sufficient to create a genuine issue of material
fact as to whether the officers acted with malice, an exception

2

As to the claims against the defendants in their official
capacities -- which are in fact claims against the New Hanover
County Sheriff’s Office –- the district court determined that
the defendants were entitled to governmental immunity for
damages in excess of $25,000 but that the Plaintiffs-Appellees
could
recover
against
the
defendants
in
their
official
capacities for intentional infliction of emotional distress,
negligent infliction of emotional distress, and negligence up to
$25,000. Because there is no proper basis for an interlocutory
appeal of the claims against the defendants in their official
capacities,
we
decline
to
exercise
pendant
appellate
jurisdiction over the denial of summary judgment as to these
claims.

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to public officer’s immunity, we affirm the denial of summary
judgment. 3

I.
We begin our analysis with a reconstruction of the events
that transpired and gave rise to these claims.

We then examine

the malice exception to public officer’s immunity as applied to
Plaintiffs-Appellees’ claims.
A.
On

August

6,

communicating-threats
III.

2008,

Glenda

complaint

Sellars

against

her

swore

husband,

out
GT

a

Russ

A magistrate judge then issued a warrant for his arrest.

Between August 8, 2008, and November 8, 2008, New Hanover County
sheriff’s deputies attempted to serve the warrant on GT Russ III
at his mobile home located directly behind his parents’ home.
On each of these occasions, the deputies were unable to locate

3

Thus, although the existence or absence of public
officer’s immunity may be established, where appropriate, as a
matter of law, it is also true that in other cases this issue
presents a question of fact to be resolved by the jury.
See,
e.g., Showalter v. North Carolina Dept. of Crime Control and
Public Safety, 183 N.C. App. 132, 137, 643 S.E.2d 649, 652
(2007) (affirming denial of summary judgment because of open
genuine issues of material fact in relation to officer’s alleged
malice precluded judgment as a matter of law on the basis of
public officer’s immunity).

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GT Russ III or otherwise serve the warrant.

Russ, the mother of

GT Russ III, personally saw sheriff’s deputies attempt to serve
the warrant three times and informed the deputies that GT Russ
III and Sellars had reconciled and were in Tennessee and that
Sellars wanted to withdraw her complaint and drop the charges
against GT Russ III.
On November 1, 2008, GT Russ III returned to North Carolina
to

be

with

his

father,

deteriorating rapidly.

GT

Russ

Jr.,

whose

health

was

Upon his return, GT Russ III did not

attempt to surrender or turn himself in, nor did Russ inform
anyone from the sheriff’s office that GT Russ III was back in
town.
-–

Plaintiffs-Appellees and GT Russ III appeared to believe

incorrectly

--

that

the

criminal

complaint

had

been

withdrawn, and they were otherwise preoccupied with the failing
health of GT Russ Jr.
On November 8, 2008, the sheriff’s office responded to a
9-1-1 call from GT Russ III’s son, who stated that his father
had slashed the tires and smashed the windows of his car and
locked himself inside the house of Russ.

Deputy Gonzalez, who

had previously attempted to serve the arrest warrant on GT Russ
III on a number of occasions, was the first to arrive on the
scene.

He verified the property damage and hoped to be able to

serve the arrest warrant on GT Russ III.

GT Russ III’s son

advised Deputy Gonzalez that GT Russ III was alone in the house
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and that he had access to firearms.

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Deputy Gonzalez radioed for

backup.
After backup arrived, Deputy Gonzalez knocked on the door
of the house and demanded that GT Russ III surrender to him, but
GT Russ III refused to do so.

Plaintiffs-Appellees arrived on

the scene but were directed to stay away from the house.

Russ

gave the deputies the keys to her house so that they could enter
and arrest GT Russ III.

Chief Deputy Sheriff Ed McMahon, who

was second in command at the time (now Sheriff of New Hanover
County), came to the house and spoke with GT Russ III over the
telephone.
North

GT Russ III informed McMahon that he had returned to

Carolina

to

be

with

his

performed on November 10, 2008.

father

during

surgery

to

be

McMahon verified this with the

Plaintiffs-Appellees and other family members, who also informed
him that Sellars was not in North Carolina at the time.
speaking

with

GT

Russ

III

and

Plaintiffs-Appellees,

After
McMahon

agreed to allow GT Russ III to turn himself in following his
father’s surgery.

The deputies left the scene and Russ, Gause,

and GT Russ III went to GT Russ Jr.’s bedside at the hospital.
GT Russ III did not turn himself in on November 10, 2008.
On that day, GT Russ Jr.’s condition worsened and on November
11, 2008, he died.

Deputy Gonzalez arrived at Russ’s house on

November 11, 2008, seeking to serve the warrant on GT Russ III.
During his visit, Russ notified the deputy that her husband had
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died and asked the deputy to notify Chief Deputy McMahon of that
fact.

On

Wednesday,

November

12,

or

Thursday,

November

2008, Russ and GT Russ III spoke with McMahon.

13,

During those

conversations both notified him that GT Russ Jr. had died and
that the family was busy making funeral arrangements for GT Russ
Jr., who was to be buried with military honors.

McMahon agreed

to allow GT Russ III to turn himself in after his father’s
funeral.

McMahon recounted his conversation with Russ where he

admits agreeing to have GT Russ III turn himself in after the
funeral:
Q: Do you remember saying, “Okay, that is fine”?
did you say in response to that?

What

A: I am sure I said, “Okay.”
Consistent with that discussion, no efforts were made by the
sheriff’s office to serve the warrant or to contact GT Russ III
about

the

warrant.

Further,

sheriff’s

deputies

were

specifically instructed not to go back to the house.
However, on November 13, 2008, McMahon and other senior law
enforcement officers in the sheriff’s office, worried that GT
Russ III would not turn himself in, decided that their best
chance to serve the arrest warrant would be to do so after the
funeral service, which they were confident GT Russ III would
attend.

McMahon, after speaking with Causey, authorized the

arrest of GT Russ III at some point after the funeral, to be

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carried out as discretely and quickly as possible, but left the
details of the arrest plan to Price.

Price created the Incident

Action Plan that details the arrest plan.

Deputies Brown and

Jordan were to wear plain clothes as they approached GT Russ III
and arrest him in the parking lot of Andrews Valley Mortuary
immediately

following

his

father’s

funeral

service.

Price

relayed this plan to McMahon.
The funeral of GT Russ Jr. was set for November 15, 2008,
and

it

was

intended

to

be

a

private

ceremony.

Plaintiffs-

Appellees and GT Russ III went to the mortuary early in the
morning

together

to

ensure

appropriately for the service.

everything

was

being

set

up

GT Russ III drove his truck to

the funeral service at Andrews Valley Mortuary.

The service

began

and

at

1:00

or

2:00

p.m.

with

family

members

friends

paying their respects to GT Russ Jr. and the Russ family.
Prior to the funeral service, Brown and Jordan, who were
wearing civilian suits and ties, drove to an adjacent animal
hospital

to

observe

the

funeral

home

and

then

parked

their

unmarked car in an empty parking space in the funeral home’s
parking lot once all of the funeral attendees had gone inside.
No one from the sheriff’s office had notified Andrews Valley
Mortuary

that

they

would

attempt

funeral service.

9

to

serve

a

warrant

at

the

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After

the

Date Filed: 02/24/2012

service

concluded,

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Plaintiffs-Appellees

exited

the funeral home through the front entrance and went into the
limousine.

The parties differ as to exactly what happened after

GT Russ III exited the funeral home at the conclusion of the
service,

although

their

versions

of

events

do

overlap.

Accepting Plaintiffs-Appellees’ version as true where there are
differences, the arrest occurred as follows:

GT Russ III was

the pallbearer for his father’s casket and the casket went out
the side door of the mortuary where the hearse was parked under
the carport.

Ronald Simmons was also a pallbearer on the left

side with GT Russ III and John Hoy from Andrews Valley Mortuary
was

assisting

casket.

the

pallbearers

in

the

transportation

of

the

As GT Russ III was putting his father’s casket into the

hearse, two gentlemen in suits and ties approached.

Price had

given permission for Deputies Brown and Jordan to approach the
funeral at this time.

Ronald Simmons was an arm’s length away

from GT Russ III and initially thought that the men were friends
or family that had attended the funeral.
Brown then violently grabbed GT Russ III and threw him up
against the hearse.

Deputy Brown never identified himself as

law enforcement nor did he inform GT Russ III that he was under
arrest.

GT Russ III broke loose from Brown, not knowing who he

was, and Hoy and Simmons thought they were criminals attacking
GT Russ III.
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As Plaintiffs-Appellees were seated in the limo they heard
a loud noise from GT Russ III being thrown against the hearse
and

a

lot

of

screaming.

surrounding the hearse.

They

went

over

to

the

commotion

During the scuffle with GT Russ III,

Brown’s back-up firearm had become dislodged and had fallen to
the pavement.

In an attempt to control the crowd, defendant

Jordan drew his Taser, which to Plaintiffs-Appellees appeared to
be a firearm.

Neither defendant Jordan nor defendant Brown had

identified themselves at this point.
Gause

who

refused

they

to

bystanders.

were

and

identify

what

they

themselves

When asked by Russ and
were

and

doing,

the

threatened

deputies
to

shoot

Plaintiffs-Appellees contend that during this time

the deputies were waving their Tasers wildly at the attendees
and pointing them at Plaintiffs-Appellees faces as they stood a
few feet away.

Brown then employed his Taser against GT Russ

III in order to subdue him.
during

all

this

time

Plaintiffs-Appellees allege that

neither

Brown

nor

Jordan

identified

themselves and that they and others at the funeral feared for
their lives.
At some point during the arrest of GT Russ III, Brown and
Jordan radioed for assistance.
had

been

maintaining

positions

Price and another deputy, who
around

the

funeral

home

to

prevent escape, responded and arrived at the scene at about the
time GT Russ III was placed in handcuffs.
11

After seeing GT Russ

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III handcuffed, attendees understood that these individuals were
law

enforcement

officers.

The

attendees

wanted

answers

from

Price as to why this happened, to which he responded that he
would take everyone to jail if they did not calm down.
further

alleged

that

further

Price

exacerbating

the

was

rude

during

situation.

this

It is

discussion,

Eventually,

Brown

and

Jordan transported GT Russ III to New Hanover County Detention
Center.
It
minutes

took
to

Andrews

restore

Valley

order

Mortuary

to

the

approximately

service

and

many

thirty

people

attendance did not continue to the cemetery for the burial.
Plaintiffs-Appellees went to the cemetery in shock.
day,

or

shortly

thereafter,

Russ

and

her

family

in
The

The next

requested

a

meeting with McMahon where McMahon apologized and indicated that
there was a miscommunication and that the arrest was supposed to
have occurred after the burial.
involved

in

the

arrest

were

The law enforcement officers
orally

reprimanded

by

Sheriff

Causey.
The events at the funeral were “the most horrible thing”
Russ

has

received
Consistent

ever

gone

closure
with

through

for

their

and

neither

husband

Plaintiffs-Appellees’

she
and

nor

father’s

experience,

attendees were mortified and shocked by what happened.

12

Gause

have

death.
funeral

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B.
Brown, Jordan, and Price are public officers shielded from
personal

liability

under

North

Carolina’s

doctrine

of

public

officer’s immunity unless it is alleged and proved that their
actions, or lack thereof, were of a nature that pierces the
cloak of this immunity. 4

Accordingly, in order to sustain a

personal or individual capacity suit against Brown, Jordan, and
Price

for

initially

the
make

state
a

law

prima

claims,
facie

Plaintiffs-Appellees

showing

that

the

“must

defendant-

official’s tortuous conduct falls within one of the immunity
exceptions.”

Trantham v. Lane, 488 S.E.2d 625, 627 (N.C.App.

1997).
As a preliminary matter, defendants assert that PlaintiffsAppellees’ claims for negligent infliction of emotional distress
and

negligence

are,

by

their

very

4

definition,

claims

for

It is well established that federal courts, when
interpreting North Carolina law, “must rule as the North
Carolina courts would, treating decisions of the Supreme Court
of North Carolina as binding . . . .” Iodice v. United States,
289 F.3d 270, 275 (4th Cir. 2002).
Consistent with this
deference to state law, holdings by the North Carolina Court of
Appeals on a point of North Carolina law are “not to be
disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would decide
otherwise.”
West v. Amer. Tel. & Tel. Co., 311 U.S. 223, 237
(1940); see also Comm’r of Internal Revenue v. Bosch, 387 U.S.
456, 465 (1967); Sanderson v. Rice, 777 F. 2d 902, 905 (4th Cir.
1985), cert. den., 475 U.S. 1027 (1986).

13

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negligence

and

Date Filed: 02/24/2012

because

public

Page: 14 of 32

officers

may

not

be

held

personally liable for negligence, the officers are entitled to
public officer’s immunity as to these claims.
In support of this proposition, defendants’ cite to this
Court’s holding in Shaw v. Stroud that a “negligent infliction
of emotional distress claim, by its very definition, necessarily
alleges

only

negligence.

trooper]

[wa]s

negligent

infliction

Carolina law.”

Therefore,

absolutely
of

immune

emotional

[the

defendant

[individually]
distress

claim

state

from
under

any
North

Shaw v. Stroud, 13 F.3d 791, 803 (4th Cir. 1994)

(rejecting plaintiff’s claim that gross negligence is sufficient
to

pierce

public

official

immunity).

In

Shaw,

however,

the

plaintiff was arguing that gross negligence was sufficient to
pierce

an

officer’s

immunity.

There

were

no

allegations

of

malicious or corrupt actions or actions beyond the scope of the
officer’s duties, exceptions to public officer’s immunity that
this

Court

in

intentional,

Shaw

explicitly

malicious,

or

acknowledged.

corrupt

actions

Id.
may

(“While
pierce

an

officer’s immunity, the North Carolina Supreme Court has never
allowed a showing of gross negligence to suffice to pierce an
officer’s immunity . . . .”).

Further, the North Carolina Court

of Appeals has explicitly held that negligence actions can be
maintained

if,

in

addition

to

the

elements

of

a

negligence

claim, plaintiffs allege and prove that the officer’s actions
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Page: 15 of 32

were corrupt or malicious or beyond the scope of the officer’s
duties:
While
we
recognize
that
generally,
claims
of
negligence can not be maintained against public
officials in their individual capacity, these actions
may be maintained, if plaintiffs bring forth evidence
sufficient to ‘pierce the cloak of official immunity.’
Prior v. Pruett, 550 S.E.2d 166, 171 (N.C.App. 2001) (emphasis
added); see also, Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C.
App. 2000) (quoting Slade v. Vernon, 429 S.E.2d 744, 747 (N.C.
App. 1993)) (“Under the public officers’ immunity doctrine, ‘a
public official is [generally] immune from personal liability
for mere negligence in the performance of his duties, but he is
not shielded from liability if his alleged actions were corrupt
or malicious or if he acted outside and beyond the scope of his
duties’.”).
whether

a

It is not the elements of the claim that determine
public

immunity.

official

Rather,

it

is

is

entitled

whether

the

to

public

facts

officer’s

alleged

are

sufficient to pierce the cloak of immunity, so as to strip the
official

of

that

immunity

and

allow

plaintiffs

to

sue

the

official “as if the suit had been brought against ‘any private
individual.’”

Id.

Under North Carolina law, it is clearly established that
“where a defendant performs discretionary acts as part of his or
her

official

or

governmental

duties,

to

sustain

a

suit

for

personal or individual liability, a plaintiff must allege and
15

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prove

Document: 42

that

the

Schlossberg

v.

Date Filed: 02/24/2012

defendant’s
Goins,

Page: 16 of 32

were

S.E.2d

540

acts

49

malicious

or

(N.C.App.

corrupt.”

2000)

Wilkins v. Burton, 16 S.E.2d 406, 407 (N.C. 1941)).

(citing

Here, it is

undisputed that Brown, Jordan, and Price were on duty during the
afternoon of November 15.

“Moreover the decisions made by [the

officers] in attempting to restrain and arrest [an individual]
were

discretionary

performing

their

Schlossberg,

540

decisions
official

S.E.2d

made

during

duties

at

540.

as

Because

the

course

public
the

of

officers.”

deputies

were

engaged in discretionary acts as part of their official duties
and

Plaintiffs-Appellees

do

not

allege

that

the

deputies’

actions were corrupt, the only relevant question for purposes of
the public officer’s immunity analysis is whether PlaintiffsAppellees

have

put

forth

sufficient

evidence

of

malice

to

survive summary judgment.
The district court found that the plaintiffs “put forward
sufficient

evidence

of

reckless

indifference”

overcome

the

presumed

that

defense
a

extreme
to

of

public

and

support
public

a

outrageous
showing

officer’s

official

in

the

of

conduct

and

malice

and

immunity.
performance

It
of

is
his

official duties “acts fairly, impartially, and in good faith and
in the exercise of sound judgment or discretion, for the purpose
of

promoting

interest.”

the

public

good

and

protecting

the

public

Greene v. Town of Valdese, 291 S.E.2d 630, 632 (N.C.
16

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Date Filed: 02/24/2012

1982) (citations omitted).

Page: 17 of 32

“Thus, to overcome the presumption

of good faith in favor of a public official, the burden is on
the

plaintiff

to

offer

a

sufficient

forecast

of

evidence

to

establish . . . the public officials’ actions were malicious.
. . .”

Crocker v. Griffin, No. COA09-1000, 2010 WL 1961258 at

*6 (N.C.App. May 18, 2010).
Acts of malice are one exception to the doctrine of public
officer’s immunity, a doctrine where “public officials cannot be
held individually liable for damages caused by mere negligence
in

the

performance

duties.”

of

their

governmental

or

discretionary

Meyer v. Walls, 489 S.E.2d 880, 889 (N.C. 1997).

“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).

The Supreme Court of North Carolina explained that “[a]n 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 (quoting Givens v. Sellers, 159 S.E.2d

530,

(N.C.

535

grafted

into

1968)).

the

When

definition

of

the

definition

“malice,”

Grad

of

“wanton”

is

establishes

a

three pronged framework providing that malice, for the purposes
of

piercing

the

cloak

of

public

officer’s

immunity,

may

be

demonstrated by conduct: (1) “when done needlessly, manifesting
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Date Filed: 02/24/2012

Page: 18 of 32

a reckless indifference to the rights of others,” 321 S.E.2d at
890-91; (2) “which a [person] of reasonable intelligence would
know to be contrary to [their] duty,” id. at 90 and (3) “which
[is] intend[ed] to be prejudicial or injurious to another.”

Id.

Regarding the first prong, we agree with the district court
that Plaintiffs-Appellees put forth sufficient evidence that the
officers needlessly engaged in conduct, manifesting a reckless
indifference to the rights of others.

Our conclusion is based

on the Plaintiffs-Appellees’ evidence of the following conduct
of Brown, Jordan, and Price:

Brown and Jordan grabbed GT Russ

III during his father’s funeral while GT Russ III was putting
the

casket

themselves

into
as

the

police

hearse;

the

officers;

deputies

Jordan

failed

to

identify

threatened

to

use

his

Taser on elderly and particularly emotional bystanders attending
the funeral; Price planned the arrest and threatened to arrest
other funeral attendees who sought explanation; and the officers
and their supervisors were brutish and bullying toward grieving
family and friends.
Further,

Plaintiffs-Appellees

have

presented

evidence

sufficient to show that the actions of Brown, Jordan, and Price
were actions an officer “of reasonable intelligence would know
to be contrary to his duty.”
and

Jordan

passed

a

Basic

Grad, 321 S.E.2d at 890.
Law

Enforcement

Training

Brown

(“BLET”)

course and exam, which provides the “minimum standards” for law
18

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Date Filed: 02/24/2012

Page: 19 of 32

enforcement officers in the state of North Carolina.

The BLET

course discussed the proper procedure for arresting individuals.
The policies are listed as follows:

“(1) Identify Self as an

officer, (2) Inform suspect he or she is ‘under arrest’ and (3)
State reason(s) for the arrest.”

This evidence -- when viewed

in the light most favorable to Plaintiffs-Appellees –- makes
clear that defendants failed to follow even one of those basic
rules of law enforcement before effectuating the arrest of GT
Russ III.

In addition, N.C. Gen. Stat § 15A-401(c) supports the

BLET tenets for making an arrest:
(2) Upon making an arrest, a law-enforcement officer must:
a. Identify himself as a law-enforcement officer
unless his identity is otherwise apparent
b. Inform the arrested person that he is under
arrest, and
c. As
promptly
as
is
reasonable
under
the
circumstances, inform the arrested person of
the cause of the arrest, unless the cause
appears to be evident.
N.C. Gen. Stat § 15A-401(c).
Contrary to the dissent’s assertion, the relevant “duty” of
the officers —- rather than a duty to refrain from arresting Mr.
Russ at the funeral home, post at 28 —- was the duty not to
engage in extreme and outrageous conduct intended to cause, and
in

fact

Appellees.
prong

of

causing,

severe

emotional

distress

to

Plaintiffs-

In this regard, and thus in respect of the second
malice,

it

is

relevant
19

that

the

officers’

alleged

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Date Filed: 02/24/2012

conduct occurred during a funeral.

Page: 20 of 32

The Supreme Court of North

Carolina has long recognized that a funeral is a solemn event
that

creates

certain

rights

in

mourners

special care be taken by third parties.

and

requires

that

Floyd v. Atl. Coast

Line Ry. Co., 83 S.E. 12, 12-13 (N.C. 1914) (“There is a duty
imposed by the universal feelings of mankind to be discharged by
someone toward the dead, a duty, and we may also say a right, to
protect from violation, and a duty on the part of others to
abstain from violation.”); cf. Parker v. Quinn-McGowen Co., 138
S.E.2d 214 (N.C. 1964) (noting that next of kin has a quasiproperty

right

in

a

deceased

body

for

its

burial

and

there

arises out of that right an emotional interest which should be
protected

and

intentionally

which
or

others

negligently);

have

a

duty

not

to

Lamm

v.

Shingleton,

55

injure
S.E.2d

810, 813 (N.C. 1949) (“The tenderest feelings of the human heart
center around the remains of the dead.”).
Other states, and other courts, have similarly recognized
the

rights

burials.

and

protections

afforded

by

law

to

funerals

and

See, e.g., Holland v. Metalious, 198 A.2d 654, 656

(N.H. 1964) (“The right to ‘decent’ burial is one which has long
been recognized at common law, and in which the public as well
as the individual has an interest”); King v. Elrod, 268 S.W.2d
103, 105 (Tenn. 1953) (“[T]he right to decent burial is well
guarded by the law, and relatives of a deceased are entitled to
20

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Page: 21 of 32

insist upon legal protection for any disturbance or violation of
this right.” (citation omitted)); Koerber v. Patek, 102 N.W. 40,
43 (Wis. 1905) (“We can imagine no clearer or dearer right in
the gamut of civil liberty and security than to bury our dead in
peace and unobstructed. . . . [N]one where the law need less
hesitate to impose upon a willful violator responsibility for
the uttermost consequences of his act.”); cf. Snyder v. Phelps
__ U.S. __, __, 131 S.Ct. 1207, 1227-1228 (2011) (Alito, J.,
dissenting)
bereaved

(explaining

relatives

is

that

“the

emotional

particularly

well-being

vulnerable”

at

of

funerals

because intrusions “may permanently stain their memories of the
final moments before a loved one is laid to rest,” and, as a
result, “funerals are unique events at which special protection
against

emotional

assaults

is

in

order”);

Nat’l

Archives

&

Records Admin. v. Favish, 541 U.S. 157, 167-70 (2004) (noting
that “[b]urial rites or their counterparts have been respected
in almost all civilizations from time immemorial,” and further
noting that funerals “are a sign of the respect a society shows
for the deceased and for the surviving family members”). 5

5

Indeed, a number of states have gone so far as to create a
special category within the common law tort of negligent
infliction of emotional distress for interference with proper
burials.
See Restatement (Third) Torts § 46 (Tentative Draft
No. 5 2007).

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As to the third prong of malice under Grad, PlaintiffsAppellees

must

produce

at

evidence

Kaasa, 321 S.E.2d at 890; see Hawkins v. State of
S.E.2d

233,

242

or

the

another.”

453

prejudicial

that

“intend[ed]

Carolina,

be

some

defendants

North

to

least

(N.C.App.

injurious

1995).

to

North

Carolina courts have found summary judgment inappropriate where
there is a genuine issue of fact as to an officer’s state of
mind when engaging in allegedly tortious conduct. 6

See, e.g.,

Showalter v. N.C. Dept. of Crime Control & Public Safety, 643
S.E.2d

649

(N.C.App.

2007)

(finding

summary

judgment

inappropriate on public officer’s immunity where trooper stated
he did not act maliciously but where trooper’s actions in macing
plaintiff and dragging him from car during traffic stop created
a genuine issue of fact as to whether actions were done with
malice);

Thompson

v.

Town

of

Dallas,

6

543

S.E.2d

901,

905

Although allegations of “reckless indifference” in the
complaint may be insufficient to survive a motion to dismiss,
see, e.g., Jones v. Kearns, 462 S.E.2d 245, 248 (N.C. App.
1995), evidence of conduct manifesting a reckless indifference
to the rights of others may in some cases be “substantial
evidence” from which a jury may properly infer specific intent
to injure. See, e.g., State v. Barlowe, 337 N.C. 371, 379, 446
S.E.2d 352, 357 (1994) (“Intent must normally be proved by
circumstantial evidence, and an intent to kill may be inferred
from the nature of the assault, the manner in which it was made,
the conduct of the parties, and other relevant circumstances.”
(quotation marks and alterations omitted)).

22

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Page: 23 of 32

(N.C.App. 2001) (finding that genuine issue of material fact as
to

whether

officer

acted

with

malice

in

arresting

motorist

precluded summary judgment on punitive damages claim).
Arguably, the very act of selecting the moment a grieving
son places his father’s casket into a hearse to execute his
arrest in front of his family and innocent third party attendees
demonstrates an intent to injure him, his family, and anyone
else at the funeral grieving the decedent’s death.

This is

especially

were

numerous

the

sheriff’s

true

opportunities
office

had

to

where,
serve

previously

the

as

here,

warrant

promised

not

there
elsewhere,

to

take

any

action

until

after the funeral, and the officers did not believe there was
any threat necessitating an immediate arrest.

As Plaintiffs-

Appellees allege, the conduct of Brown, Jordan, and Price is
sufficient to create a genuine issue of fact material to the
issue

of

public

officer’s

immunity,

particularly

as

to

the

officers’ intent in creating and executing the arrest plan.

II.
For the reasons given above, we affirm the district court’s
denial of summary judgment.
AFFIRMED

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Page: 24 of 32

KING, Circuit Judge, dissenting:
With the utmost respect for my distinguished colleagues in
the

majority,

I

dissent

from

their

decision

to

permit

the

plaintiffs to attempt to hold the arresting deputies and their
immediate

supervisor

individually

liable

botched arrest at the funeral home.
conclude

from

defendants

the

acted

record

with

the

on

at

trial

for

the

No reasonable jury could

summary

requisite

judgment

malice

that
that

such

these
their

entitlement to the immunity routinely afforded public officials
under North Carolina law ought to be abrogated.

Perhaps more

importantly, and no matter the deputies’ subjective intentions
toward GT Russ III (“Mr. Russ”) in taking him into custody,
there is simply no evidentiary basis to deduce that they meant
any harm whatsoever to the plaintiffs.
The majority’s analysis correctly focuses on the question
of malice; there is no legitimate allegation that, in arresting
Mr. Russ, the deputies were corruptly influenced or undertook an
act

outside

S.E.2d

888,

their
890

job
(N.C.

description.
1984)

(“As

See
long

Grad
as

a

v.

Kaasa,

public

321

officer

lawfully exercises the judgment and discretion with which he is
invested by virtue of his office, keeps within the scope of his
official authority, and acts without malice or corruption, he is
protected from liability.”).

There is likewise no indication

that, in performing their jobs, the deputies lacked probable
24

Appeal: 10-2016

cause

Document: 42

to

arrest

entitlement

to

Date Filed: 02/24/2012

Mr.
park

Russ
at

or

the

Page: 25 of 32

that

they

funeral

were

home

without

and

legal

traverse

its

grounds.
The

execution

of

tactless and clumsy.
on

the

the

arrest

warrant

was

indisputably

In denying the deputies summary judgment

individual-capacity

claims,

the

district

court

went

farther, observing that the plaintiffs “put forward sufficient
evidence

of

extreme

indifference.”
(E.D.N.C.

Russ

2010).

and
v.
Even

outrageous
Causey,
if

one

732

conduct
F.

and

Supp.

concurs

in

2d
the

reckless
589,

613

court’s

characterization, the difficulty with its ruling is that neither
“extreme

and

outrageous

conduct”

nor

“reckless

indifference”

equates to malice under North Carolina law.
“Extreme and outrageous conduct” is an element of a claim
for intentional infliction of emotional distress, but the term
merely describes the necessary predicate act.

See Johnson v.

Antioch United Holy Church, Inc., 714 S.E.2d 806, 811 (N.C. Ct.
App. 2011) (reciting essential elements of claim as “(1) extreme
and outrageous conduct by the defendant (2) which is intended to
and does in fact cause (3) severe emotional distress” (citation
and internal quotation marks omitted)).

The conduct alone is

not actionable unless accompanied by a particular mental state,
i.e., the intent to inflict a cognizable psychic injury upon the
plaintiff, with the result that such injury consequently occurs.
25

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Page: 26 of 32

“Reckless indifference,” on the other hand, does describe a
mental

state

—

one

that

is

potentially

actionable

in

many

contexts — but one that falls short of the rigorous threshold
for malice.

Indeed, the North Carolina courts have squarely

held that “[a] plaintiff may not satisfy this burden [of showing
malice

or

corruption]

indifference.”

through

allegations

of

mere

reckless

Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C.

Ct. App. 2000).

A public official “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.”
(citation

omitted).

purpose,

or

when

A
done

“wanton”

act

needlessly,

Grad, 321 S.E.2d at 890
is

one

“done

manifesting

indifference to the rights of others.”

of
a

wicked

reckless

Id. at 891 (citation

omitted).
A considered reconciliation of the above excerpts from Grad
reveals that a wanton act, even one tending less toward wicked
and more toward needless (from which a general state of reckless
indifference

might

be

inferred),

insufficient to establish malice.

is,

standing

alone,

Such an act must also be

objectively contrary to the officer’s duty and target a specific

26

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Date Filed: 02/24/2012

person for detriment. 1

Page: 27 of 32

Thus, although the deputies may have

callously and boorishly invaded the solemnity of the funeral
proceedings, it does not follow that their zeal translated into
malice.

It is also not determinative that the deputies may have

contravened

the

prescribed

arrest

procedure

by

neglecting

identify themselves prior to engaging Mr. Russ.

to

The majority

elevates this technical breach to the violation of a statutory
duty, see ante at 17-18, but even assuming the correctness of
the majority’s position, it was a violation without meaning in
this case.
The fracas did not occur because the deputies failed to
identify
cause,

themselves;

vigorously

it

occurred

resisted

arrest.

because
The

Mr.

Russ,

record

without

conclusively

establishes that Mr. Russ is, without question, a scofflaw who,

1

The majority errs in overemphasizing the initial component
of the Grad framework, making the unjustified logical leap that
“[w]hen the definition of ‘wanton’ is grafted into the
definition of ‘malice,’” ante at 16, the incorporation within
wantonness of an inchoate aura of reckless indifference is
determinative of malice if a police officer is found to have
breached any duty (not necessarily one related to the alleged
injury) and intends to harm or injure any person (not
necessarily the plaintiff).
See id. at 17-22.
The majority’s
approach, in effect, squarely contravenes the admonition in
Schlossberg that the conduct of police officers in the field be
evaluated under the rigorous causal and targeting requirements
accompanying the malice standard, and not under the more
amorphous, less accommodating reckless indifference standard.

27

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Page: 28 of 32

over the years, has made a habit of evading capture. 2

In this

particular instance, Mr. Russ was well aware that the Sheriff’s
Office possessed a warrant for his arrest.

Five days before the

funeral, Mr. Russ barricaded himself inside his parent’s house
to keep from being arrested, and, two days after that, broke a
promise to turn himself in.
that

Mr.

Russ

did

not

There can be no credible contention
understand

perfectly

well

who

was

accosting him at the funeral home, notwithstanding that he may
not have been personally acquainted with the arresting deputies.
See N.C. Gen. Stat. § 15A-401(c)(2) (disposing of identification
requirement
apparent”). 3

if

arresting

officer’s

“identity

is

otherwise

Furthermore, under the circumstances present here,

2

For example, Deputy Mario Gonzalez filed an uncontested
declaration that “Mr. Russ . . . was known within the New
Hanover County Sheriff’s Office to be an elusive individual who
could be very difficult to locate and apprehend . . . .
On
repeated occasions, he had promised me over the telephone that
he would turn himself in, but he invariably failed to do so.”
J.A. 70 (citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal).
3

The plaintiffs’ own witness, Ronald Simmons, submitted an
affidavit that Mr. Russ, prior to being subdued, acknowledged
that the men engaging him were police officers by stating that
“I had permission to turn myself in.”
J.A. 833.
That the
bystanders were momentarily at sea concerning the deputies’
identity is immaterial, as it was solely Mr. Russ who was
responsible for escalating the encounter.
Mr. Simmons’s
particular expression of bewilderment:
“I thought what was
going on was some kind of [M]afioso type hit,” id., does not
(Continued)
28

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Date Filed: 02/24/2012

Page: 29 of 32

whatever duty the deputies might have short-circuited by virtue
of their subterfuge was countermanded by their overriding duty
to

take

Mr.

jurisdiction.

Russ

into

custody

before

he

could

leave

the

See State v. Harvey, 187 S.E.2d 706, 712 (N.C.

1972) (“When a warrant . . . is placed in the hands of an
officer for execution, it is his duty to carry out its demands
without

delay,

and

he

incurs

no

liability

for

its

proper

execution, however disastrous may be the effect on the person
against whom it is issued.”).

That duty the deputies fulfilled,

albeit inelegantly. 4

exactly inspire confidence in the plaintiffs’ contention that
Mr. Russ lacked culpability for the incident.
4

Though the majority plainly hangs its hat on the alleged
violation of the deputies’ duty to identify themselves, it
conflates that supposed misstep with several other actions it
considers “brutish and bullying” or otherwise objectionable,
ante at 17, to declare that the officers were bound to observe a
considerably broader “duty not to engage in extreme and
outrageous conduct.”
Id. at 18.
Such a general mandate might
constitute useful public policy in the realm of everyday tort
law. It is of limited utility, however, to guide the actions of
police officers, who routinely fulfill their duties by lawfully
engaging in conduct that would be considered extreme if done by
an ordinary citizen. Tellingly, none of the cases cited by the
majority as establishing a special legal status for funerals and
burials, see ante at 19-20, remotely involved police conduct,
and none have discussed the need for balancing society’s
interest
in
the
solemnity
of
death
rituals
with
the
countervailing interest in the effective execution of criminal
justice.

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Page: 30 of 32

Perhaps more importantly for the purposes of our analysis,
any injury or prejudice that the deputies may have intended by
virtue of their actions was directed solely at Mr. Russ.

There

is no indication in the record of any animosity or ill-will
between the deputies and the plaintiffs.

See J.A. 379, 596

(documenting plaintiffs’ deposition admissions that defendants
bore them no personal animus).
are

that

the

Sheriff’s

To the contrary, all indications

Office

extended

the

plaintiffs

every

consideration and courtesy throughout the days leading up to the
incident

and

beyond.

See

id.

at

76

(memorializing

Deputy

Gonzalez’s condolences to Peggy Russ on her husband’s death and
forgoing confrontation concerning her son’s whereabouts); id. at
145 (setting forth Chief Deputy McMahon’s accession to Peggy
Russ’s

pleas

period);

to

id.

at

stay
369

away

from

residence

(acknowledging

during

McMahon’s

mourning

apology

to

plaintiffs).
The majority pays little heed to the targeting requirement,
suggesting

that

the

deputies’

timing

of

Mr.

Russ’s

arrest

arguably “demonstrates an intent to injure him, his family, and
anyone else at the funeral grieving the decedent’s death.”
at 22.

Ante

The majority’s supposition finds no support in North

Carolina law, and it in fact appears to be an attempt to engraft
the

negligence

circumscribes

the

concept
contours

of
of

foreseeability
duty
30

and

(which

damages)

onto

usually
a

very

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Date Filed: 02/24/2012

Page: 31 of 32

different type of claim, the successful prosecution of which has
heretofore required a specific malevolent or uncaring intent on
the part of the defendant. 5

This unwarranted expansion of the

universe of potential plaintiffs is also in contravention of the
state’s statutory scheme regarding the award of punitive damages
in cases where the defendant has acted maliciously.
Gen. Stat. § 1D-15(a)(2).

See N.C.

In such instances, the plaintiff must

prove malice “toward the claimant that activated or incited the
defendant
resulted

to
in

perform
harm

to

the
the

act

or

undertake

claimant.”

5

Id.

the

conduct

§ 1D-5(5)

that

(emphasis

The majority cites Prior v. Pruett, 550 S.E.2d 166 (N.C.
Ct. App. 2001), for the uncontroversial proposition, echoed in
Schlossberg, that “generally, claims of negligence can not be
maintained
against
public
officials
in
their
individual
capacity, [but] these actions may be maintained if plaintiffs
bring forth evidence sufficient to pierce the cloak of official
immunity.”
Id. at 171
(citation and internal quotation marks
omitted).
It was probably no accident that the court in Prior
distinguished
between
“claims
of
negligence”
and
“these
actions.” An action arises out of a specific occurrence or set
of circumstances that, under the applicable law, may engender
myriad claims supporting the imposition of liability.
When it
is demonstrated that a defendant public official has acted
culpably enough to pierce the cloak of immunity, the plaintiff
no longer has a claim for ordinary negligence; instead, the
claim is for an intentional tort (assault and battery in
Schlossberg, and here, infliction of emotional distress) or some
functional equivalent.
Indeed, the denial of summary judgment
to the police defendants in Prior was based on the court’s
determination that genuine issues of material fact remained with
respect to the officers’ allegedly wanton conduct and gross
negligence. See id. at 171-72, 174.

31

Appeal: 10-2016

Document: 42

added).
began,

Date Filed: 02/24/2012

Page: 32 of 32

Here, the record is clear that, when the commotion
the

plaintiffs

were

in

a

limousine

procession to the gravesite to commence.
their

vehicle

and

walk

around

the

waiting

for

the

That they had to exit

building

to

see

what

was

happening belies the conclusion that the deputies intended them
any harm at all.
I would hold that the district court erred in withholding
public officials immunity from the arresting deputies and their
supervisor, and I would reverse the denial of summary judgment
on

that

basis.

I

would

remand

with

instructions

to

grant

summary judgment to all defendants as to the entirety of the
plaintiffs’ action, including the negligence claims, concluding
that as distasteful as the entire episode undoubtedly was, the
defendants owed no cognizable legal duty to the plaintiffs to
refrain from arresting Mr. Russ at the funeral home.

Because my

good friends in the majority disagree and will allow this matter
to proceed to trial, I respectfully dissent.

32