Jerry Anderson v. Caldwell County

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to dismiss appeal [998875493-2] Originating case number: 1:09-cv-00423-MR-DLH Copies to all parties and the district court/agency. [999093553].. [11-2344]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2344

JERRY ANDERSON,
Plaintiff - Appellee,
v.
CALDWELL
COUNTY
SHERIFF'S
OFFICE;
ALAN
C.
JONES,
Individually and in his Official Capacity as Sheriff of the
Caldwell County Sheriff's Office; JEFFERY LEE STAFFORD,
Individually and in his Official Capacity as a Deputy
Sheriff of the Caldwell County Sheriff's Office; BRIAN
ANTHONY BENNETT, Individually and in his Official Capacity
as a Deputy Sheriff of the Caldwell County Sheriff's Office;
SHELLY HARTLEY, Individually and in her Official Capacity as
a Deputy Sheriff of the Caldwell County Sheriff's Office;
FIDELITY AND DEPOSIT COMPANY OF MARYLAND; THE OHIO CASUALTY
INSURANCE COMPANY,
Defendants – Appellants,
and
JOHN DOE, representing Other Unidentified Officers of the
Caldwell County Sheriff's Office, Individually and in his
Official Capacity as a Deputy Sheriff of the Caldwell County
Sheriff's Office; JANE DOE, representing Other Unidentified
Officers
of
the
Caldwell
County
Sheriff's
Office,
Individually and in her Official Capacity as a Deputy
Sheriff of the Caldwell County Sheriff's Office; DOE BOND
COMPANY; CHRISTOPHER BRACKETT, Individually and in his
Official Capacity as a Deputy Sheriff of the Caldwell County
Sheriff's Office; TRACY PYLE, Individually and in his
Official Capacity as a Deputy Sheriff of the Caldwell County
Sheriff's Office,
Defendants.

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Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cv-00423-MR-DLH)

Argued:

January 29, 2013

Decided:

April 24, 2013

Before DAVIS and KEENAN, Circuit Judges, and John A. GIBNEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.

Reversed in part, dismissed in part, and remanded by unpublished
per curiam opinion.

James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE & RICE, PLLC,
Winston-Salem, North Carolina, for Appellants.
Robert Mauldin
Elliot, ELLIOT, PISHKO & MORGAN, PA, Winston-Salem, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This case comes before the Court on an interlocutory appeal
of the district court’s denial of a motion for summary judgment
on

the

ground

of

qualified

immunity.

The

central

issue

is

whether law enforcement officers had probable cause to arrest
the plaintiff-appellee for the murder of his wife.

The Court

finds that probable cause existed for the arrest, entitling the
arresting

officers

to

qualified

immunity

appellee’s claims under 42 U.S.C. § 1983.
fail,

the

plaintiff-appellee’s

on

the

plaintiff-

Because those claims

derivative

federal

supervisory and local government liability also fail.

claims

of

The Court

also concludes that public officers’ and governmental immunity
shield

the

defendants-appellants

from

most

of

the

plaintiff-

appellee’s state law claims, but the Court lacks jurisdiction to
review the statutory bond claim.
I.
A.
Jerry Anderson (“Anderson”) commenced this action by filing
a complaint in which he alleged that the defendants had harmed
him in various ways.
claim

that

various

Specifically, under § 1983 he asserted a
Caldwell

County

Deputy

Sheriffs,

led

by

Captain Jeffery Lee Stafford (“Stafford”), violated his Fourth
Amendment rights.
(“CCSO”)

and

He sued the Caldwell County Sheriff’s Office

Sheriff

Alan

C.

Jones
3

(“Jones”)

for

failure

to

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train and supervise the deputy sheriffs.
law

claims

of

malicious

obstruction of justice.
insurer

and

bonding

He also asserted state

prosecution,

false

arrest,

and

Finally, he sued the CCSO’s liability

company

for

any

damages

caused

by

the

alleged violations of his rights. 1
The

defendants-appellants

filed

motions

for

summary

judgment on a number of bases, including qualified immunity,
public
district

officers’
court

immunity,
denied

and

those

governmental
motions,

immunity.

leading

The

to

this

wife,

Emily

interlocutory appeal. 2
B.
In
Anderson

December
(“Emily”)

2005,
went

County, North Carolina.

the

plaintiff-appellee’s

missing

from

their

farm

in

Caldwell

Nine days later, Stafford and the CCSO

investigative team found her body in the toolbox of her truck,
which had been abandoned in South Carolina.

After a lengthy

investigation, Stafford arrested Anderson for his wife’s murder.
1

Anderson sued the sheriff and deputies in both their
individual and official capacities.
Suits against public
officers in their official capacities actually raise claims
against the entity for which the officer works.
Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985).
We, therefore, will not
discuss the official capacity claims against the individual
defendants.
2

The district court did grant summary judgment (1) in favor
of Deputy Bennett in his individual capacity for all claims and
(2) in favor of all the defendants as to Anderson’s negligence
claims. These decisions are not relevant to this appeal.
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A grand jury indicted him about two weeks later for first-degree
murder.
the

Anderson stood trial for nine weeks in mid-2007, but

jury

could

not

reach

a

verdict.

The

judge

declared

a

mistrial, and ultimately the state dismissed the case without
prejudice.
The

following

facts

led

to

Anderson’s

arrest

and

prosecution:
On December 29, 2005, the day Emily disappeared, a worker
on Anderson’s farm heard Emily and Anderson arguing.

At 9:30

a.m., not long after the argument, Anderson and Emily drove to a
wooded area of their farm — Anderson drove a front-end loader
and Emily drove her pickup truck.

A neighbor heard the front-

end loader driving on Anderson’s farm near the wooded area, and
then heard two shots.

Another neighbor also heard two shots.

When the police later found Emily’s body, it had dirt and grass
on it, as well as two gunshot wounds.
One

half-hour

after

driving

out

to

the

wooded

area,

Anderson returned to the farm buildings in the front-end loader.
He told workers on the farm to clean the loader, paying special
attention to the bucket.

A worker told the officers that this

was an unusual request by Anderson.

Forensic analysis later

showed bloodstains on the bucket of the front-end loader.
Sometime between 10 a.m. and noon, Anderson had a worker
drive him to the wooded area, where Anderson got out of the
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vehicle with a large plastic bag.

The next day, he told his

employees to search the area for a cell phone.
Although none of the farm workers saw Anderson again until
the late afternoon, he instructed them to tell anyone who asked
that he had been at the farm all day.

To bolster this story, he

later changed oil filters on some farm equipment, backdated the
documentation of the repair to December 29, 2005, and told a
worker to lie about the date they had changed the filters.
The CCSO unearthed additional evidence relating to Emily’s
death, most of it pointing to Anderson as the culprit.

In

summary, the evidence is as follows:
•

Several

people

unhappily

indicated

married,

and

that

that

the

Emily

Andersons

planned

to

were
leave

Anderson.
•

Anderson had found cards to Emily from a man named
Bill.

He also had found indications that someone had

sent her flowers.
•

When the deputies told Anderson about Emily’s death,
he showed no emotion and, in fact, laughed and “told
stories.”

•

Not

long

before

Emily’s

disappearance,

Anderson

had

applied for and received a new passport, listing his
sister as his emergency contact.

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Emily had $4.5 million in life insurance with Anderson
and their company as beneficiaries.

Anderson’s first

wife, Teresa Martin, told officers that Anderson had
her

get

life

beneficiary.

insurance

designating

him

as

the

Martin stated that at some point during

the marriage she woke up disorientated in the trunk of
the car.

Anderson said he planned to hide her away

and collect the insurance money, but eventually he let
her out of the trunk.
•

Bank of America notified the deputies that there had
been no activity on Emily’s account since December 23,
2005.

•

Alltel,

the

Andersons’

phone

company,

reported

that

Emily’s phone showed no activity after December 28,
2005.

The deputies found her phone attached to her

belt.

The phone company told the CCSO that the phone

had been in South Carolina since December 29, 2005.
•

An

Alltel

representative

told

the

CCSO

that

he

believed that Anderson had turned his cell phone off
between

the

hours

December 29, 2005.

of

12:04

p.m.

and

4:51

p.m.

on

Turning the phone off would avoid

cell site registry during that time.

In addition,

Anderson had Emily’s calls forwarded to his phone.

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Although

he

told

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the

deputies

he

owned

no

guns,

Anderson actually owned several firearms.
•

Cadaver dogs had indicated that a corpse had been in
the wooded area of Anderson’s farm.

Based on the foregoing, Stafford and the deputies developed
a theory of the crime.

They believed that while in the wooded

area on the morning of December 29, 2005, Anderson had fatally
shot Emily.

He then loaded her body into the toolbox on her

truck, and drove her to South Carolina, where he abandoned the
truck in a motel parking lot.
Not all the evidence, however, indicated Anderson’s guilt.
The

following

evidence

surfaced

casting

some

doubt

on

the

deputies’ theory:
•

Anderson

passed

a

polygraph

test

at

the

CCSO’s

request.
•

A Waffle House cook in South Carolina told Stafford
that he had received a call on the day they discovered
the body.

The anonymous caller said that the truck of

the “missing woman from North Carolina” was in the
parking lot of the Quality Inn located next to the
Waffle

House.

The

cook

said

he

believed

truck had been parked there for two weeks.

8

that

the

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The Waffle House cook said that, during that time, he
thought he had seen the driver’s side door open and a
white male approximately 5’8” to 5’9” with blond hair
and a crew cut standing next to the door.
was

not

certain,

however,

that

the

The manager

individual

was

standing next to Emily’s truck.
•

A pathologist and a medical examiner offered opinions
that

Emily

had

most

likely

died

one

to

three

days

before the discovery of her body on January 7, 2006.
They could not rule out, however, that she had died up
to ten days earlier.
Finally,

the

deputies

received

some

information,

the

significance of which is unclear, because they simply did not
follow up on the leads:
•

The CCSO did not question people who had registered at
the

Quality

Inn

during

the

time

Emily’s

truck

was

there.
•

The cleaning crew at the motel found some eyeglasses
in a room after the police found her body.

Emily was

missing her eyeglasses when the police discovered her
body.
•

Two Waffle House employees said they had seen a woman,
matching

Emily’s

description,

9

wearing

an

Old

Navy

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shirt; Emily had been wearing a similar shirt when the
police found Emily’s body.

The woman had entered the

Waffle House several times late on the night before
the

police

found

her

body.

This

person

had

been

accompanied by a white male.
•

Motel employees saw a white male and female pull up
beside Emily’s truck in the parking lot.

•

A man reported to Stafford’s secretary that he had
seen Emily either on December 28 or 29 at 8:30 a.m. at
a convenience store in Caldwell County with a man with
dark hair in a mullet haircut (short on the sides,
long in the back).

With

the

foregoing

evidence

in

hand,

Stafford

appeared

before a magistrate, testified under oath, and secured an arrest
warrant.

The magistrate kept no recording or other record of

precisely what Stafford said to obtain the warrant.
II.
As

an

initial

matter,

the

Court

must

determine

the

propriety and scope of the appeal.
The

defendants-appellants

appeal

the

district

court’s

denial of summary judgment on the grounds of qualified immunity,
public

officers’

immunity,

and

governmental

immunity.

Ordinarily, courts of appeals will only hear appeals of final
orders, Bailey v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003),
10

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and

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“[d]enials

of

summary

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judgment

are

not

final

orders,”

Hensley v. Horne, 297 F.3d 344, 347 (4th Cir. 2002). Certain
immunities, however, present an exception to the general rule.
Bailey, 349 F.3d

at 738–39.

Qualified immunity is not only an immunity from liability,
but also immunity from the burdens of facing trial.

Brown v.

Gilmore, 278 F.3d 362, 366–67 (4th Cir. 2002) (citing Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985)).

When a district court

denies a motion based on qualified immunity, the defendant can
appeal immediately, before a full trial on the merits.
v.

Bass,

106

F.3d

525,

528-29

(4th

Cir.

1997)

Winfield

(en

banc).

Otherwise the protection against the burdens of trial is lost,
regardless of the outcome of the appeal.

Mitchell, 472 U.S. at,

526.
Similarly,

“under

North

Carolina

immunity is an immunity from suit.”

law,

public

officers’

Bailey, 349 F.3d at 738–39

(citing Summey v. Barker, 544 S.E.2d 262, 264 (N.C. Ct. App.
2001)). So, too, is governmental immunity, which “bars action
against, inter alia, the state, its counties, and its public
officials

sued

in

their

official

capacity.”

Arrington

v.

Martinez, 716 S.E.2d 410, 414 (N.C. Ct. App. 2011).
As in all motions for summary judgment, the existence of a
genuine dispute of material issues of fact precludes a district
court from granting summary judgment on the basis of immunity.
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If the factual conflicts form the basis of the denial of summary
judgment, an appellate court cannot decide the issues, and it
lacks jurisdiction over the case.
529.

“If,

immaterial

however,
to

underlying

resolution

whether

legal

See Winfield, 106 F.3d at
of

immunity

question

the

factual

about

should

be

whether

afforded,

immunity

afforded remains and may be appealed . . . .”
102 F.3d 722, 727 (4th Cir. 1996).

dispute

is

to

is
the
be

Jackson v. Long,

In the instant case, the

district court found that material issues of fact prevented it
from awarding summary judgment.

Based on this ruling by the

trial court, the plaintiff-appellee moves to dismiss the appeal.
The

district

court

did

not

issue

a

written

opinion.

Rather, the court stated its reasoning in a relatively brief
oral

ruling.

It

believed

that

material

questions

of

fact

existed as to (1) whether Stafford lied to the magistrate to get
the arrest warrant; (2) whether Stafford obtained the arrest
warrant

by

omitting

whether

Hartley

substantial

participated

with

exculpatory
Stafford

evidence;
in

getting

(3)
the

warrant; and (4) whether probable cause would exist when the
court

excised

the

impermissible

elements

from

Stafford’s

presentation to the magistrate.
It goes without saying, of course, that parties frequently
raise

factual

judgment.

disputes

Courts

can

when

litigating

grant

summary
12

motions

judgment

for
to

a

summary
movant,

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however,

as

favorable

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long

to

the

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as

are

the

party

facts

opposing

taken

summary

in

the

light

judgment.

most

Scott

v.

Harris, 550 U.S. 372, 378 (2007); Brown, 278 F.3d at 362 n.2.
This rule applies in cases involving immunity, as in any other
summary judgment context.

Scott, 550 U.S. at 378; Brown, 278

F.3d at 366 n.2. The obligation of the Court, in such cases, is
to decide whether, as a matter of law, viewing the facts in the
light

most

favorable

to

the

prevail based on immunity.

plaintiff,

the

defendant

Scott, 550 U.S. at 378.

should

That the

parties differ about the facts does not necessarily preclude
appellate

review.

Rather,

“this

[factual

conflict]

usually

means adopting . . . the plaintiff's version of the facts.”

Id.

This is precisely the function of the Court in this case.
We do not decide disputed facts, but rather questions of law —
whether the facts taken in the light most favorable to Anderson
establish
immunity,
immunity.

the

defendants-appellants’

public

officers’

entitlement

immunity,

and/or

to

qualified

governmental

The Court has jurisdiction to make such a ruling, and

we deny the plaintiff-appellee’s motion to dismiss the appeal.
III.
The defendants-appellants argue that the officers in their
individual capacities are entitled to qualified immunity on the
federal claims. For the reasons set forth herein, we agree.

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A.
We review de novo a district court’s denial of an officer’s
claim of entitlement to qualified immunity.
v.

Greene,

593

F.3d

officials

performing

qualified

immunity

348,

353

(4th

discretionary

from

liability

Cir.

See, e.g., Melgar
2010).

functions
for

are

civil

Government
entitled

damages

to

to
the

extent that “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).

When ruling on a qualified immunity claim, we must

consider

two

questions:

(1)

whether

a

constitutional

or

statutory right would have been violated on the facts alleged by
the plaintiff, and (2) whether the right asserted was clearly
established at the time of the alleged violation.

Saucier v.

Katz, 533 U.S. 194, 200 (2001). 3
The district court erred in denying summary judgment to the
officers on Anderson’s Fourth Amendment claims.

Based on our

review of the record, we conclude that probable cause existed at
the time that Stafford sought the arrest warrant and arrested

3

The Court need not consider these issues in any particular
order.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A
resolution of either question in the defendants’ favor mandates
a judgment in favor of the defendants.

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Anderson. 4
Amendment

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Thus, Stafford did
right

to

be

free

not violate Anderson’s Fourth
from

an

unreasonable

seizure.

Because no constitutional violation occurred, the Court need not
proceed to the second step of the Saucier qualified immunity
analysis.
B.
“The

Fourth

Amendment

prohibits

law

enforcement

officers

from making unreasonable seizures, and seizure of an individual
effected without probable cause is unreasonable.”

Brooks v.

City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996) (citing
Graham v. Conner, 490 U.S. 386, 396–97 (1989)).

So long as the

officer supports the arrest with probable cause, the police have
not committed a constitutional violation. See S.P. v. City of
Takoma Park, Md., 134 F.3d 260, 274 (4th Cir. 1998).
When a police officer acts pursuant to a warrant, he is
entitled

to

qualified

immunity

if

he

could

have

reasonably

believed that probable cause existed to support the application.
Porterfield v. Lott, 156 F.3d 563, 570 (4th Cir. 1998) (citing
Malley v. Briggs, 475 U.S. 335, 344–45 (1986)).

For probable

cause

evidence

to

exist,

there

need

only

4

be

sufficient

to

Regardless of what Stafford actually said to the
magistrate, probable cause still existed for Anderson’s arrest.
Thus, the alleged uncertainty as to what Stafford told the
magistrate does not give rise to a genuine dispute over a
material fact.
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warrant the belief of a reasonable officer that an offense has
been or is being committed.

Brown v. Gilmore, 278 F.3d at 367.

See also Wong Sun v. United States, 371 U.S. 471, 479 (1963).
The

law

does

not

require

that

the

officer

sufficient to convict the criminal defendant.
at 367.

have

evidence

Brown, 278 F.3d

Once a neutral and detached magistrate deems an arrest

reasonable by finding that probable cause exists for the arrest,
the

continuing

reasonable.

seizure

of

the

criminal

defendant

is

also

Brooks, 85 F.3d at 184; Taylor v. Waters, 81 F.3d

at 436.
The Supreme Court defines probable cause as a “commonsense,
nontechnical” concept that deals “with the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.”

Ornelas v. United States, 517

U.S. 690, 695 (1996) (internal quotation marks omitted) (citing
Illinois v. Gates, 462 U.S. 213, 231 (1983)).

This Court has

stated that the probable cause standard does not require that
the officer's belief be more likely true than false.

United

States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004) (citing
United States v. Jones, 31 F.3d 1304, 1313 (4th Cir. 1994)).
Thus, a probable cause determination turns on the assessment of
probabilities.

Gates,

462

U.S.

at

232.

“[O]nly

the

probability, not a prima facie showing, of criminal activity is
the standard of probable cause.”
16

Id. at 235.

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A court makes a finding of probable cause based on the
totality of the circumstances known to the officer at the time
of the arrest.

Brown, 278 F.3d at 367.

Yet, an officer “may

not disregard readily available exculpatory evidence of which he
is aware.”
2000).

Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir.

“Objective

inquiry

into

the

reasonableness

of

an

officer’s perception of the critical facts leading to an arrest
. . . . must charge him with possession of all the information
reasonably discoverable by an officer acting reasonably under
the circumstances.”

Sevigny v. Dicksey, 846 F.2d 953, 957 n.5

(4th Cir. 1988).
Although

an

officer

may

not

disregard

readily

available

exculpatory evidence that he knows about, the failure to pursue
potentially exculpatory leads will not negate probable cause.
Wadkins, 214 F.3d at 541 (citing Torchinsky v. Siwinski, 942
F.2d

257,

264

(4th

Cir.

reasonable

law

potentially

exculpatory

suspect's

guilt

1991)).

lead

before

law

officers

enforcement

The

to

or

resolve

probable

does

require

“exhaust

every

cause

not

is

doubt

every
about

a

established.”

Torchinsky, 942 F.2d at 264 (citing Krause v. Bennett, 887 F.2d
362, 371 (2d Cir. 1989) (“[P]robable cause does not require an
officer

to

be

certain

that

subsequent

arrestee will be successful.”)).

17

prosecution

of

the

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Here, the plaintiff-appellee asks the Court to judge the
CCSO

investigation

plaintiff-appellee

through

the

complains

lens

that

of

hindsight.

Stafford

relied

on

The
a

great

deal of “questionable” evidence, did not properly evaluate the
credibility

of

witnesses,

and

clearly

magistrate about “exculpatory” evidence.

did

not

tell

the

But even assuming the

plaintiff-appellee is correct in his arguments about the facts,
probable cause still existed.
First,

as

noted

above,

the

failure

to

follow

up

on

potentially exculpatory leads does not control the ruling in
this case.

“[T]he failure to pursue a potentially exculpatory

lead is not sufficient to negate probable cause.”

Wadkins, 214

F.3d at 541.
Moreover, the fact that no contemporary record exists to
show

what

Stafford

said

to

the

magistrate

when

seeking

the

arrest warrant does not undermine the showing in this record of
the

existence

of

probable

cause.

While

this

practice

of

providing only oral testimony is of concern to the Court in a
general sense, for the purposes of this analysis, the Court need
not delve into this issue.

Based on a review of the facts

available to Stafford, probable cause existed at the time he
sought the arrest warrant and arrested Anderson.
Without
undisputed

repeating
evidence

the

showed

evidence
that
18

the

in

great

Andersons

detail,
had

a

the
rocky

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marriage, that Anderson and Emily had gone into a wooded area on
the farm on the morning of December 29, 2005, that the sound of
gunshots emanated from the wooded area, that Anderson drove a
front-end

loader

to

the

wooded

area,

that

forensic

analysis

showed the presence of blood in the bucket of the front-end
loader,

that

Anderson

was

not

seen

most

of

the

day

Emily

disappeared, and that Anderson had instructed his employees to
lie concerning his presence on the day Emily disappeared.

In

addition, the undisputed evidence showed that Anderson had a
large insurance policy on Emily’s life, that he had firearms,
that it appeared he had turned his phone off for several hours
on the day Emily disappeared, and that Emily’s phone was in
South Carolina starting on the day she disappeared.
Probable cause existed to believe Anderson killed his wife,
and the arrest of Anderson therefore did not violate the Fourth
Amendment.

Moreover, even considering all of the potentially

exculpatory

evidence

cited

by

Anderson

that

was

known

to

Stafford, alongside the inculpatory evidence set forth above,
there

was

still

probable

cause

to

arrest

Anderson.

Having

concluded that no constitutional violation occurred, we need not
proceed to the second step of the Saucier qualified immunity
analysis.

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C.
Because no Fourth Amendment violation occurred, the sheriff
and the CCSO may not be held liable for failure to train or
supervise the Caldwell County deputies. 5

No actionable claim

against supervisors or local governments can exist without a
constitutional violation committed by an employee.
Angeles

v.

Heller,

475

U.S.

796,

799

(1986)

City of Los
(per

curiam);

Giancola v. State of W. Va. Dep’t of Pub. Safety, 830 F.2d 547,
550

(4th

Cir.

1987).

Thus,

Anderson’s

training or supervision cannot proceed.
F.2d

32,

36

(4th

Cir.

1990).

Sheriff

claims

of

inadequate

Belcher v. Oliver, 898
Jones

and

the

CCSO,

therefore, are not liable under § 1983.
IV.
The defendants-appellants argue that the officers in their
individual capacities are entitled to public officers’ immunity
on

Anderson’s

state

law

claims

against

them.

We

review

the

denial of public officers’ immunity de novo. Bailey, 349 F.3d at
739.

5

Since the CCSO does not enjoy qualified immunity,
ordinarily we would lack jurisdiction to consider its liability
in an interlocutory appeal. But because the CCSO’s liability is
“inextricably intertwined” with the deputies’ liability, the
Court will assume pendent jurisdiction over the CCSO’s appeal.
Altman v. City of High Point, 330 F.3d 194, 207 n.10 (4th Cir.
2003).
20

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Under
officials

Filed: 04/24/2013

North
who

governmental

Carolina

are
duties

malicious” actions.

engaged

Pg: 21 of 26

law,
in

plaintiffs

the

personally

may

exercise

liable

of

only

hold

public

discretionary,

for

“corrupt

or

Smith v. Hefner, 68 S.E.2d 783, 787 (N.C.

1952); Bailey, 349 F.3d at 742.
Anderson does not argue that the officers undertook their
actions in a corrupt manner.

Rather, Anderson argues that the

officers undertook their actions maliciously.

“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.”
Kaasa, 321 S.E.2d 888, 890 (N.C. 1984).

Grad v.

The North Carolina

Supreme Court classifies an act as wanton when “done of a wicked
purpose,

or

when

done

needlessly,

indifference to the rights of others.”

manifesting

a

reckless

Id. at 890–91.

The Court of Appeals of North Carolina recently held that
if probable cause existed for the issuance of an arrest warrant,
public officer’s immunity shields the defendants from individual
liability.

Beeson v. Palombo, 727 S.E.2d 343, 346 (N.C. Ct.

App. 2012).
Not only did probable cause exist for Anderson’s arrest,
but Anderson has not put forth evidence that the officers acted
with reckless indifference to his rights.
probable

cause

existed,

a

person
21

of

Additionally, because

reasonable

intelligence

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would

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not

Further,

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know

that

Anderson

his

has

Pg: 22 of 26

actions

not

put

were

forth

contrary
any

to

his

evidence

duty.

that

the

officers intended for their acts to be prejudicial to Anderson.
Thus, public officer’s immunity bars the state law claims
against

the

officers

in

their

individual

capacities.

Accordingly, we hold that the district court erred in failing to
enter

summary

judgment

in

favor

of

the

officers

in

their

individual capacities on the plaintiff-appellee’s various state
law claims.
V.
The defendants-appellants argue that the CCSO is entitled
to governmental immunity on the state law claims against it.
“The existence of sovereign immunity is a question of law that
we review de novo.” S.C. Wildlife Fed’n v. Limehouse, 549 F.3d
324, 332 (4th Cir. 2008) (internal quotation marks omitted).
Under North Carolina law, “the doctrine of governmental, or
sovereign
state,

immunity[,]

its

counties,

bars
and

action

its

against,

public

inter

officials

alia,

sued

in

the
their

official capacity.” Arrington, 716 S.E.2d at 414 (N.C. Ct. App.
2011).

“Suits

doctrine
performing

against

public

officials

of

governmental

immunity

a

governmental

function,

are

where
such

as

the

by

the

official

is

providing

services.” Id. (internal quotation marks omitted).

22

barred

police

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Counties

Filed: 04/24/2013

and

their

officials

immunity by purchasing insurance.
744,

746

(N.C.

Ct.

App.

Pg: 23 of 26

1993),

may

waive

governmental

Slade v. Vernon, 429 S.E.2d
implied

overruling

on

other

grounds recognized in Boyd v. Robeson County, 621 S.E.2d 1 (N.C.
Ct. App. 2005).

If a county purchases liability insurance, it

only waives its governmental immunity by the amount of insurance
purchased by the county.

Evans v. Housing Auth. of Raleigh, 602

S.E.2d 668, 673 (N.C. 2004).

But insurance policies can include

explicit exclusions of coverage for any claim that governmental
immunity would ordinarily cover.
The

insurance

policies

purchased

by

the

CCSO

explicitly

exclude coverage for “[a]ny claim, demand, or cause of action
against any Covered Person as to which the Covered Person is
entitled to sovereign immunity or governmental immunity under
North Carolina law.”
862, 1115.

See J.A. 731, 734, 782, 794; see also J.A.

Thus, the county’s purchase of insurance has not

waived governmental immunity as to the state law claims against
the CCSO, and these claims fail as a matter of law.
VI.
The only remaining cause of action is the statutory bond
claim against the CCSO’s sureties under § 58-76-5 of the North
Carolina General Statutes. Section 58-76-5 provides that
[e]very person injured by the neglect, misconduct, or
misbehavior in office of any . . . sheriff . . . or
other officer, may institute a suit or suits against
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said officer . . . and [his] sureties upon [the]
respective bonds for the due performance of [his]
duties in office in the name of the State . . . and
every such officer and the sureties on the officer’s
official bond shall be liable to the person injured
for all acts done by said officer by virtue or under
color of that officer's office
Anderson

has

asserted

a

claim

only

against

the

sheriff’s

sureties. See J.A. 223–24.
The defendants-appellees argue that “the state tort claim[]
against . . . the Sheriff’s sureties . . . [is] based solely on
respondent
“the

[sic]

individual

superior”
officers

and
are

“cannot

be

entitled

supported”

to

public

because

officer’s

immunity.” Opening Br. 58. But “[b]y expressly providing for
th[e] [statutory bond] cause of action, the General Assembly has
abrogated common law immunity where a public official causes
injury

through

performance

of

neglect,
his

misconduct,

official

duties

or
or

misbehavior
under

color

in

the

of

his

office.” Smith v. Jackson County Bd. of Educ., 608 S.E.2d 399,
411-12 (2005) (internal quotation marks omitted). “Immunity is
thus immaterial with respect to a claim on a bond under N.C.
Gen.Stat. § 58–76–5.” Id.; see also Slade, 429 S.E.2d at 747.
Whether

Anderson’s

statutory

bond

claim

fails

on

other

grounds is beyond this Court’s jurisdiction. 6 “Our exercise of

6

Although the sureties joined in the notice of appeal filed
in this case, they have not filed separate briefs explaining why
we have jurisdiction over their appeal. As we explain in the
(Continued)
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pendent appellate jurisdiction is proper only when an issue is
(1)

inextricably

court

to

deny

intertwined

.

.

.

with

immunity

or

the
(2)

decision

of

the

consideration

lower

of

the

additional issue is necessary to ensure meaningful review of the
. . . immunity question.”

Evans v. Chalmers, 703 F.3d 636, 658

(4th Cir. 2012). “Claims are ‘inextricably intertwined’ when the
resolution of one claim necessarily resolves the other claim.”
Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007).
Here,

our

review

of

officers’,

and

governmental

the

issues

immunity

of

qualified,

does

evaluation of the state statutory bond claim.
decline

to

exercise

pendent

appellate

not

public

require

any

Accordingly, we

jurisdiction

over

that

claim.
VII.
For the reasons stated above, we dismiss the appeal of the
district

court’s

ruling

as

to

the

statutory

bond

claim,

and

reverse the denial of summary judgment on the remaining claims.
The arresting officers are entitled to qualified immunity on the
federal claims; the derivative federal claims of supervisory and

text, we do not have, and in any event, we decline to exercise,
such jurisdiction. The sureties’ apparent reliance on Turner v.
City of Greenville, 677 S.E.2d 480 (N.C. App. 2009), and Altman
v. High Point, 330 F.3d 194 (4th Cir. 2003), is plainly
misplaced, as there was no bond claim in either of those cases.

25

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local government liability fail because no actionable claim can
exist

without

subordinate

a

constitutional

employee;

public

violation
officers’

committed
and

by

a

governmental

liability shield the officers and the CCSO from Anderson’s state
law

claims;

and

the

Court

lacks

jurisdiction

to

review

the

statutory bond claim against the sureties.
REVERSED IN PART,
DISMISSED IN PART,
AND REMANDED

26