Brandon Pegg v. Nathan Klempa
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cv-00173-FPS. Copies to all parties and the district court. [999843405]. [15-1889]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1889
BRANDON PEGG; KRISTINA PEGG, husband and wife,
Plaintiffs – Appellants,
v.
NATHAN TYLER KLEMPA, individually and in his capacity as
agent and employee of the City of Glen Dale Police
Department; GRANT HERRNBERGER,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge. (5:13-cv-00173-FPS)
Submitted:
March 15, 2016
Decided:
June 6, 2016
Before NIEMEYER, KING, and DIAZ, Circuit Judges.
Affirmed in part, and reversed in part by unpublished per curiam
opinion.
Robert G. McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling,
West Virginia; Paul J. Harris, HARRIS LAW OFFICES, Wheeling,
West Virginia, for Appellants. Montѐ L. Williams, Deva A.
Solomon, Robert L. Bailey, STEPTOE & JOHNSON, PLLC, Morgantown,
West Virginia; Keith C. Gamble, PULLIN, FOWLER, FLANAGAN, BROWN
& POE, PLLC, Morgantown, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Brandon Travis Pegg and Kristina Pegg appeal the district
court’s
grant
of
Defendants-Appellees
Herrnberger
on
the
summary
Nathan
basis
judgment
Tyler
of
Klempa
qualified
in
and
immunity.
favor
of
Grant
The
P.
Peggs
raised constitutional claims under 42 U.S.C. § 1983 (2012), as
well as related state law claims, against Klempa and Herrnberger
arising from a traffic stop of the Peggs’ vehicle.
The amended
complaint alleged: (1) unlawful arrest of Mr. Pegg; (2) unlawful
detention of Mrs. Pegg; (3) excessive force as to Mr. Pegg;
(4) intentional infliction of emotional distress as to both Mr.
and Mrs. Pegg; (5) battery of Mr. and Mrs. Pegg; and (6) civil
conspiracy to unlawfully detain and search the Peggs.
After the Peggs filed this action, Klempa and Herrnberger
moved for summary judgment, arguing that they were entitled to
qualified immunity.
The district court granted the defendants’
motions for summary judgment on the basis of qualified immunity.
In regard to Mr. Pegg’s claims, the court concluded that the
officers had not unreasonably extended the traffic stop and,
once
Mr.
existed
Pegg
to
refused
arrest
him
to
exit
for
his
vehicle,
obstruction.
probable
The
court
cause
also
determined that, because the arrest of Mr. Pegg was lawful, the
force applied by the officers was not excessive.
2
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As to Mrs. Pegg’s claims of unlawful detention, the court
concluded
that
dangerous
and
Herrnberger
was
reasonably
therefore
justified
believed
in
that
frisking
she
her.
was
The
court determined that, similar to Herrnberger’s frisk of Mrs.
Pegg,
Klempa’s
justified
by
searches
officer
of
safety
her
purse
and
concerns. 1
the
vehicle
Finally,
the
were
court
concluded that Mrs. Pegg had not been the victim of a battery as
a result of the frisk, and that the remainder of the Peggs’
state law claims were also barred by qualified immunity.
On appeal, the Peggs assert three errors in the district
court’s
decision.
First,
they
argue
that
the
officers
unnecessarily extended the duration of the traffic stop and did
not order Mr. Pegg from the vehicle because of safety concerns.
Therefore, they argue, Mr. Pegg’s arrest for failing to exit the
vehicle
was
unlawful.
Second,
they
argue
that
no
facts
establish an objective, reasonable suspicion that Mrs. Pegg was
armed and dangerous, and therefore the search of the vehicle,
frisk of Mrs. Pegg, and search of her purse violated the Fourth
1
The court noted that Mrs. Pegg had consented to the search
of her purse, but concluded that it was “unclear whether Mrs.
Pegg’s consent was voluntarily given.”
Because the court
determined that the search was valid regardless of consent, it
did not reach a determination as to whether consent was
voluntary.
3
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Amendment.
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Finally, they argue that Herrnberger’s frisk of Mrs.
Pegg constituted battery, as it involved offensive touching.
We “review the district court’s grant of summary judgment
de novo, applying the same standard as the district court . . .
[and] construing the evidence in the light most favorable to
[the Peggs], the non-movant[s].”
Walker v. Mod-U-Kraf Homes,
LLC, 775 F.3d 202, 207 (4th Cir. 2014).
Summary judgment is
appropriate if there is no genuine issue as to material fact and
“the movant is entitled to judgment as a matter of law.”
Fed.
R. Civ. P. 56(a).
“Qualified
constitutional
established
(en
protects
violations
law,
were lawful.”
2011)
immunity
could
but
who,
reasonably
officers
in
who
commit
of
clearly
light
believe
that
their
actions
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
banc).
Thus,
to
successfully
avail
themselves
of
qualified immunity, Klempa and Herrnberger must show either that
no constitutional violation occurred or that the right was not
clearly
established
at
the
time it
2
was
violated. 2
Id.
In
West Virginia law similarly follows a two-step inquiry to
determine whether an officer is entitled to qualified immunity:
“(1) does the alleged conduct set out a constitutional or
statutory violation, and (2) were the constitutional standards
clearly established at the time in question?” Hutchison v. City
of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996). Additionally,
an official is not entitled to qualified immunity if his or her
conduct was “fraudulent, malicious, or otherwise oppressive.”
Id.
4
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evaluating whether the right was clearly established, we look
“not to whether the right allegedly violated was established ‘as
a broad general proposition’ but whether ‘it would be clear to a
reasonable
official
that
situation he confronted.’”
(4th
Cir.)
(quoting
his
conduct
was
unlawful
in
the
Raub v. Campbell, 785 F.3d 876, 882
Saucier v.
Katz,
533
U.S.
194,
201–02
(2001), cert. denied, 136 S. Ct. 503 (2015).
With
regard
to
Mr.
Pegg’s
claim
of
unlawful
arrest,
we
conclude that the district court did not err in finding that the
officers
are
entitled
constitutionality
of
a
to
qualified
traffic
stop
immunity.
is
analyzed
The
under
a
two-prong standard: first, we determine “whether the officer’s
reason
for
the
traffic
stop
was
legitimate”
and,
if
so,
we
examine “whether the officer’s actions during the seizure were
reasonably related in scope to the basis for the traffic stop.”
United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015)
(internal quotation marks omitted).
tolerable
duration
of
police
“Like a Terry stop, the
inquiries
in
the
traffic-stop
context is determined by the seizure's ‘mission’—to address the
traffic violation that warranted the stop, and attend to related
safety concerns.”
Rodriguez v. United States, 135 S. Ct. 1609,
1614 (2015) (internal citations omitted).
The central question
is whether the officer’s action, “viewed objectively and in its
totality, is reasonably directed toward the proper ends of the
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United States v. Digiovanni, 650 F.3d 498, 508 (4th Cir.
2011).
As to the first prong, Mr. Pegg concedes that his vehicle
had an inoperative license plate light and therefore the initial
justification for the traffic stop was valid.
Regarding the
second prong of the inquiry, we conclude the officers’ actions
up to and including ordering Mr. Pegg from the vehicle were
reasonably directed toward the proper purpose of the traffic
stop.
After
stopping
conversation
with
conversation
that
recalcitrance.
the
Mr.
was
Mr.
Peggs’
Pegg
vehicle,
regarding
extended
Pegg
Klempa
the
by
eventually
had
a
traffic
Mr.
stop,
Pegg’s
turned
brief
a
initial
over
his
documentation and Klempa ran checks on the documentation, all of
which was proper.
Digiovanni, 650 F.3d at 507.
minutes
the
elapsed
by
time
Klempa
returned
to
Only five
Mr.
Pegg’s
vehicle.
Klempa wanted Mr. Pegg to exit the vehicle for two reasons:
(1) because of concerns for officer safety; and (2) to show Mr.
Pegg the burned-out light and issue a verbal warning.
This
directive was not unconstitutional.
As
an
initial
matter,
the
traffic
stop
itself
had
not
concluded as Klempa had not yet issued the warning to Mr. Pegg.
See United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008)
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(“once . . . the police officer has issued the requisite warning
or ticket, the driver must be allowed to proceed on his way”).
Moreover, when viewed in context, ordering Mr. Pegg from the
vehicle was reasonably related to the purpose of the traffic
stop.
From the moment the stop began, Mr. Pegg was agitated and
expressed
incredulity
traffic stop.
Klempa
to
notified
of
the
reason
for
the
Therefore, while it was perhaps unnecessary for
order
reasonably
when
Mr.
directed
Pegg
toward
from
the
the
proper
vehicle,
purpose
it
of
was
the
also
stop—
demonstrating to Mr. Pegg that there was a legitimate defect
with his vehicle, and issuing a verbal warning relating to that
defect.
Furthermore, Mr. Pegg confirmed during his deposition
that, at the time he was asked to exit his vehicle, the officers
were standing in or near the lane of traffic.
The stop occurred
in the evening on New Year’s Eve, an evening when, as the Peggs’
expert
testified,
drunk driving.
there
is
a
higher-than-usual
likelihood
of
Thus, ordering Mr. Pegg from his vehicle was
also justified by concerns for officer safety.
Because it was reasonably directed toward the purpose of
the stop, Klempa’s decision to order Mr. Pegg from the vehicle
did
not
unreasonably
detention.
extend
duration
of
Mr.
Pegg’s
The officers therefore maintained authority to order
Mr. Pegg from the vehicle.
111 (1977).
the
Pennsylvania v. Mimms, 434 U.S. 106,
When Mr. Pegg refused the lawful command given by
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the officers, they had probable cause to believe that Mr. Pegg
was
obstructing
Botkins,
719
an
officer.
S.E.2d
863,
872
refused
to
comply
[with
officer
may
have
believed
obstruct the officer”).
See
City
(W.
the
Va.
of
2011)
officer’s
the
refusal
Saint
(“Once
order],
to
be
Albans
a
an
v.
Appellee
reasonable
attempt
to
The arrest was lawful, and Mr. Pegg’s
claim for unlawful arrest therefore fails, as do his related
claims.
Turning
to
warrantless
the
search
searches
unreasonable,”
several
of
of
the
a
vehicle
exceptions
Peggs’
vehicle,
are
exist.
“presumptively
United
Holmes, 376 F.3d 270, 274-75 (4th Cir. 2004).
although
States
v.
Of relevance to
this case,
the search of the passenger compartment of an
automobile, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police
officer
possesses a
reasonable
belief
based
on
specific and articulable facts which, taken together
with
the
rational
inferences
from
those
facts,
reasonably warrant the officers in believing that the
suspect is dangerous and the suspect may gain
immediate control of weapons.
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (internal quotation
marks omitted).
such
safety
belief
of
Thus, to conduct a lawful search pursuant to
concerns,
both
(1)
“an
the
officer
suspect’s
must
possess
dangerousness
a
reasonable
and
(2)
the
possibility that the suspect might gain immediate control of any
weapons inside the vehicle.”
United States v. Griffin, 589 F.3d
8
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148, 153 (4th Cir. 2009).
We examine “the totality of the
circumstances
whether
in
determining
suspicion existed.”
the
requisite
reasonable
United States v. McCoy, 513 F.3d 405, 411
(4th Cir. 2008).
By the time Klempa performed a search of the vehicle, Mr.
Pegg had been handcuffed and placed in the back of Klempa’s
vehicle.
Consequently, any concern for officer safety had to be
based on a threat posed by Mrs. Pegg, rather than Mr. Pegg.
The
district court determined that the officers had a reasonable
suspicion
that
Mrs.
Pegg
was
dangerous
because:
(1) it
was
evening on New Year’s Eve; (2) prior to being arrested, Mr. Pegg
had been agitated and failed to follow officer commands; (3) it
would be “reasonable . . . to believe that . . . Mrs. Pegg[] was
also agitated and a risk” to officer safety; and (4) Mrs. Pegg
had opened her car door and asked why her husband was being
arrested.
Certainly, the fact that the stop occurred at nighttime on
New Year’s Eve supports reasonable suspicion.
Even assuming
that Mr. Pegg’s agitation and failure to comply with officer
commands
is
circumstances
relevant
fall
to
well
Mrs.
short
Pegg’s
of
the
dangerousness,
requisite
reasonable
suspicion needed to believe that Mrs. Pegg was a threat.
9
these
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No evidence demonstrates that Mrs. Pegg was nervous, angry,
or
irritated. 3
To
the
contrary,
compliant during the traffic stop.
she
was
cooperative
and
When Mr. Pegg was initially
uncooperative with Klempa, Mrs. Pegg encouraged him to comply
with Klempa’s order.
When asked, Mrs. Pegg: (1) produced her
identification; (2) closed her door and stayed quiet; (3) exited
the vehicle to be searched; and (4) lifted her shirt and coat to
expose
her
torso
to
Herrnberger.
During
his
deposition,
Herrnberger was unable to remember or articulate a single fact
that supported a reasonable suspicion that Mrs. Pegg presented a
threat.
3
Contrary to the district court’s determination, it is
entirely reasonable for an individual, upon witnessing her
spouse being handcuffed and placed in a police cruiser, to ask
if and why her spouse was being arrested. Nor is it suspicious
that Mrs. Pegg opened the door to do this, as she did so merely
to gain the attention of one of the officers.
See United
States v.
McCraney,
674
F.3d
614,
621
(6th
Cir.
2012)
(concluding that, where an individual exits the vehicle not to
flee but to get the officer’s attention, such behavior does not
contribute to reasonable suspicion).
Additionally,
we
question
the
district
court’s
determination that it would be reasonable to assume that Mrs.
Pegg was agitated.
There is no indication that Mrs. Pegg was
angry, agitated, or irritated during or after her husband’s
arrest or that the officers believed she was agitated and,
absent such evidence, reaching that assumption on summary
judgment inappropriately ignored the requirement that facts be
viewed in the light most favorable to Mrs. Pegg, and that all
reasonable inferences be drawn in her favor.
Any assumed
agitation cannot, therefore, support a particularized suspicion
that Mrs. Pegg was dangerous.
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evidence
establishes
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that
Mrs.
criminal history or history of violence.
Pegg
had
no
known
At the time the search
was conducted, no individuals were near the officers other than
Mrs. Pegg, and the officers outnumbered Mrs. Pegg three to one.
There is no evidence that the location of the traffic stop was a
high crime area.
Nor is there any evidence that the officers
actually believed that Mrs. Pegg posed a threat; indeed, they
left her entirely unattended, prompting her to open her door
simply to gain an officer’s attention.
We therefore conclude
that no reasonable officer would have believed that Mrs. Pegg
was dangerous.
Moreover, Mrs. Pegg’s right to be free from a search under
these circumstances was clearly established at the time of the
traffic stop.
Cir. 2009).
See United States v. Neely, 564 F.3d 346 (4th
Police may conduct a frisk of a passenger during a
traffic stop where: (1) “it is lawful for police to detain an
automobile and its occupants pending inquiry into a vehicular
violation;” and (2) the police “harbor reasonable suspicion that
the
person
subjected
to
the
frisk
is
armed
and
dangerous.”
Arizona v. Johnson, 555 U.S. 323, 327 (2009).
Reasonable suspicion must be particularized and objective.
“The officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
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or that of others was in danger.”
United States v. Powell, 666
F.3d 180, 186 (4th Cir. 2011) (quoting Terry v. Ohio, 392 U.S.
1, 27 (1968)).
This determination must be “based on commonsense
judgments and inferences about human behavior and it is measured
by the totality of the circumstances.”
Id. (quoting Illinois v.
Wardlow, 528 U.S. 119, 125 (2000)).
As
detailed
supports
a
believed
that
above,
conclusion
Mrs.
the
that
Pegg
evidence
no
was
in
this
reasonable
dangerous.
case
officer
Although
strongly
would
have
the
stop
occurred after dark, and Mr. Pegg was somewhat uncooperative but
not threatening during the stop, there is simply no evidence
that Mrs. Pegg presented any threat.
Furthermore, at the time of the search, a number of our
cases
made
clear
that
something
more
than
the
circumstances
facing Klempa and Herrnberger was required to support a belief
that Mrs. Pegg was dangerous.
See Powell, 666 F.3d at 187-88
(knowledge of a past criminal record and providing officers with
false
information
was
insufficient
to
create
reasonable
suspicion); United States v. Massenburg, 654 F.3d 480, 488-91
(4th Cir. 2011) (presence in a high crime area shortly after
police received anonymous tip concerning random gunfire in the
area does not create reasonable suspicion); United States v.
Foster, 634 F.3d 243, 246-49 (4th Cir. 2011) (knowledge of a
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suspect’s criminal history, sudden movements, and arm shifting
were insufficient).
We
thus
conclude
that,
at
the
summary
judgment
stage,
Herrnberger is not entitled to qualified immunity for his frisk
of Mrs. Pegg, and Klempa is not entitled to qualified immunity
for his search of Mrs. Pegg’s purse. 4
Finally, in West Virginia, an individual commits the tort
of battery where “(a) he acts intending to cause a harmful or
offensive
contact
with
the
person
of
the
other
or
a
third
person, or an imminent apprehension of such a contact, and (b) a
harmful
contact
with
indirectly results.”
the
person
of
the
other
directly
or
W. Va. Fire & Cas. Co. v. Stanley, 602
S.E.2d 483, 494 (W. Va. 2004) (quoting Restatement (Second) of
Torts, § 13 (1965)).
We
conclude
that
an
unauthorized
battery.
See Terry, 392 U.S. at 24-25 (“Even a limited search
outer
annoying,
clothing
for
frightening,
and
satisfy
weapons
perhaps
.
.
the
.
requirements
an
contact
the
to
constitutes
offensive
of
sufficient
frisk
must
humiliating
surely
be
for
an
experience”).
Moreover, because Herrnberger conducted a frisk that was not
4
As previously noted, the district court did not resolve
the question of whether Mrs. Pegg voluntarily consented to the
search of her purse.
Because the issue of consent was not
decided by the district court and has not been raised on appeal,
we leave resolution of this issue to the district court.
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necessary for officer safety, he was not privileged to create
that offensive contact with Mrs. Pegg.
See Restatement (Second)
of Torts § 10 (2)(b) (1965) (A privilege may be based upon . . .
the fact that its exercise is necessary for the protection of
some interest . . .”).
We therefore conclude that the district
court erred in granting summary judgment in favor of Herrnberger
on this claim.
Accordingly,
district
court’s
we
affirm
order,
in
and
consistent with this opinion.
part
remand
and
for
reverse
further
in
part
the
proceedings
We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART,
REVERSED IN PART
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