Brandon Pegg v. Grant Herrnberger
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cv-00116-JPB. [999997475]. [15-1999]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1999
BRANDON PEGG,
Plaintiff - Appellee,
v.
GRANT HERRNBERGER, individually and in his capacity as agent
and employee of the West Virginia State Police,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
John Preston Bailey,
District Judge. (5:14-cv-00116-JPB)
Argued:
October 27, 2016
Decided:
January 4, 2017
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Reversed and remanded with instructions by published opinion.
Judge Agee wrote the opinion, in which Judge Niemeyer and Judge
King joined.
ARGUED: Monte Lee Williams, STEPTOE & JOHNSON PLLC, Morgantown,
West Virginia, for Appellant. Robert G. McCoid, MCCAMIC, SACCO
& MCCOID, P.L.L.C., Wheeling, West Virginia, for Appellee.
ON
BRIEF: Deva A. Solomon, Robert L. Bailey, STEPTOE & JOHNSON
PLLC, Morgantown, West Virginia, for Appellant. Paul J. Harris,
HARRIS LAW OFFICES, Wheeling, West Virginia, for Appellee.
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AGEE, Circuit Judge:
Brandon
Pegg
sued
West
Virginia
State
Trooper
Grant
Herrnberger, alleging that Herrnberger used excessive force in
effectuating
federal law.
the
arrest
of
Pegg,
in
violation
of
state
and
Herrnberger appeals the district court’s denial of
his motion for summary judgment based upon that court’s holding
Herrnberger was not, as a matter of law, entitled to qualified
immunity.
For the reasons that follow, we reverse the district
court’s order denying Herrnberger’s motion for summary judgment
and
remand
with
instructions
to
enter
judgment
in
favor
of
Herrnberger.
I. Factual Background
On August 4, 2013, Herrnberger and another trooper, William
Beck, were examining an abandoned vehicle on the side of the
road when Brandon Pegg drove by slowly in his truck with the
driver’s side window open.
Herrnberger noticed the truck had an
expired inspection sticker and called out to Pegg to stop the
vehicle.
Pegg did not stop and sped away.
The troopers then
left in pursuit of Pegg’s truck and eventually pulled him over.
Beck
approached
the
driver’s
side
of
Pegg’s
vehicle
to
speak with Pegg while Herrnberger approached the passenger side
to
speak
with
the
front
passenger,
2
Robert
Beever.
When
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Herrnberger asked to see Beever’s identification, Pegg asked why
Beever needed to produce identification.
Herrnberger contends that Pegg then reached for something
between his legs, a claim Pegg denies.
Herrnberger asserts that
Pegg’s reaching motion appeared suspicious, so he approached the
driver’s door and ordered Pegg out of his truck.
and
followed
Herrnberger
Herrnberger
then
instructed
to
the
Pegg
rear
face
to
of
the
Pegg complied
Pegg’s
truck,
hands behind his back, and lock his hands together.
turned
to
face
the
truck,
Herrnberger
truck.
put
his
Before Pegg
demonstrated
how
Pegg
should lock his hands together.
Pegg placed his left hand at the small of his back and
began
to
bring
his
right
arm
behind
interlock his hands as instructed.
right arm.
his
back,
but
did
not
Herrnberger grabbed Pegg’s
Pegg then turned and said “Why is this happening or
something along those lines” to Herrnberger and pulled his right
arm away from the trooper.
J.A. 46.
Herrnberger then pushed
Pegg against the truck with his left arm, and attempted to pull
Pegg’s right arm back, which Pegg resisted.
Herrnberger then
took Pegg to the ground, and both troopers pinned Pegg there and
handcuffed him in an event that took less than forty seconds
before Pegg was helped to his feet.
suffered
minor
scrapes
and
As a result, Pegg claims he
abrasions
3
on
his
head,
which
he
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treated with peroxide and Neosporin, but did not seek medical
attention.
The troopers arrested Pegg for assaulting a police officer
(W. Va. Code § 61-2-10b(e)), obstructing an officer (W. Va. Code
§ 61-5-17(a)), and driving with an expired inspection sticker
(W. Va. Code § 17C-16-9).
released.
Pegg was jailed for 8–12 hours before
A magistrate judge dismissed the assault charge for
lack of probable cause, and the prosecuting attorney dismissed
the rest of the charges for reasons not apparent on the record.
Pegg then filed a complaint in the U.S. District Court for
the
Northern
District
of
West
Virginia
against
Herrnberger,
individually and in his official capacity pursuant to 42 U.S.C.
§
1983.
arrest,
The
complaint
retaliatory
alleged
arrest,
and
federal
excessive
claims
of
force,
unlawful
and
state
claims of outrage/intentional infliction of emotional distress
and battery.
Herrnberger filed a motion for summary judgment,
arguing that the suit was barred against him in his official
capacity
based
on
sovereign
immunity
and
in
his
individual
capacity because of qualified immunity.
The district court granted Herrnberger’s motion for summary
judgment in part and denied it in part.
All claims against
Herrnberger in his official capacity were dismissed as barred by
sovereign
immunity.
Pegg
does
4
not
challenge
the
district
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court’s
ruling
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as
to
the
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official
capacity
claims. 1
The
district court denied summary judgment for the claims against
Herrnberger
in
his
individual
capacity,
ruling
he
was
not
entitled to qualified immunity.
Herrnberger filed a timely appeal, and we have jurisdiction
of the appeal under 28 U.S.C. § 1291. See Am. Civil Liberties
Union, Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th Cir. 1993)
(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (stating
questions of law surrounding qualified immunity are appealable
as final decisions within the meaning of § 1291).
II.
Analysis
“We review de novo a district court’s denial of summary
judgment and qualified immunity, construing all facts in the
light most favorable to the nonmovant.”
F.3d 442, 445 (4th Cir. 2008).
Orem v. Rephann, 523
Thus, for purposes of our review
here, we construe all facts in the light most favorable to Pegg
as non-moving party.
For issues concerning qualified immunity,
we have jurisdiction to consider purely legal questions, but not
over
the
district
court’s
“determination
that
the
summary
judgment record in this case raised a genuine issue of fact”
1
A fifth claim, for false imprisonment, was dismissed as
barred by the statute of limitations and is also not at issue on
appeal.
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because that is not a final decision for purposes of 28 U.S.C. §
1291.
Johnson v. Jones, 515 U.S. 304, 313 (1995). 2
Put another
way, “we possess no jurisdiction over a claim that a plaintiff
has not presented enough evidence to prove that the plaintiff’s
version
of
the
events
actually
occurred,
but
we
have
jurisdiction over a claim that there was no violation of clearly
established law accepting the facts as the district court viewed
them.”
Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997).
Consequently,
we
accept
the
facts
as
the
district
court
articulated them when it determined whether summary judgment was
appropriate,
and
then
we
determine
“whether,
based
on
those
facts, a reasonable person in the defendant’s position could
have believed that he or she was acting in conformity with the
clearly established law at the time.”
Gray-Hopkins v. Prince
George’s Cty., 309 F.3d 224, 229 (4th Cir. 2002).
“Qualified
constitutional
established
immunity
violations
law,
were lawful.”
could
“whether
the
but
who,
reasonably
officers
in
believe
who
of
light
that
commit
clearly
their
actions
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc).
established
protects
at
the
right
When evaluating whether a right was clearly
time
of
allegedly
a
violation,
violated
2
was
courts
do
not
established
ask
‘as
a
The opinion omits internal quotation marks, alterations,
and citations here and throughout, unless otherwise noted.
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broad general proposition’ but whether ‘it would be clear to a
reasonable
official
that
his
situation he confronted.’”
conduct
was
unlawful
in
the
Raub v. Campbell, 785 F.3d 876, 882
(4th Cir. 2015) (quoting Saucier v. Katz, 533 U.S. 194, 201–202
(2001)).
A.
Qualified Immunity for Unlawful Arrest
The district court determined that Herrnberger’s arrest of
Pegg
was
unlawful
because
it
believed
Herrnberger
did
not
“principally” arrest Pegg for the expired inspection sticker.
Instead,
the
obstructing
district
an
court
officer
only
opined
after
question during the traffic stop.”
Herrnberger
argues
that
denies
purported
that
the
he
asked
was
“for
[Herrnberger]
a
J.A. 376.
motivation
subjective
arrest
reasons
and,
for
in
any
event,
arresting
Pegg
should not enter into the qualified immunity analysis because
Pegg’s violation of West Virginia law constituted probable cause
for
the
arrest.
Therefore,
with
probable
cause
to
arrest,
Herrnberger contends he is entitled to qualified immunity.
We
agree with Herrnberger.
The Supreme Court has stated unequivocally that “[i]f an
officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he
may,
without
offender.”
violating
the
Fourth
Amendment,
arrest
the
Atwater v. City of Lago Vista, 532 U.S. 318, 354
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(2001).
In
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Atwater,
the
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arrestee
committed
violation punishable only by a fine.
Court
held
that
the
Fourth
Pegg
admits
Amendment
does
forbid
a
Id.
inspection sticker in violation of West Virginia law. 3
See W.
Herrnberger’s
vehicle
not
expired
in
his
belt
an
Va. Code § 17C-16-9.
that
seat
Nonetheless, the Supreme
warrantless arrest for such a minor violation.
Here,
a
had
Further, he admits this violation occurred
presence.
Therefore,
just
as
in
Atwater,
though Pegg’s offense was minor, the Fourth Amendment does not
forbid a warrantless arrest for such a violation.
The
Supreme
Court
specifically
rejected
in
Atwater
the
argument Pegg makes here: that the Fourth Amendment would forbid
“custodial
arrest,
even
upon
probable
cause,
when
could not ultimately carry any jail time . . . .”
U.S. at 346.
conviction
Atwater, 532
Under Atwater, therefore, whether or not a § 17C-
16-9 violation is a jailable offense is irrelevant for purposes
of the application of qualified immunity.
Pegg attempts to distinguish Atwater by arguing that unlike
the Texas seatbelt statute at issue in that case, § 17C-16-9 is
not an offense subject to a custodial arrest or punishable by
incarceration.
He argues that § 17C-16-9 is not among the list
3
“Request No. 1: Admit that on August 4, 2013, at
approximately 11:30 a.m., you were operating a vehicle that had
an expired inspection sticker. Response: Admitted.” J.A. 101.
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traffic
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offenses
that
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a
separate
enumerates as warranting arrest.
statute,
§
17C-19-3,
But that contention –- even if
a correct recitation of state law –- is of no consequence under
Atwater for Fourth Amendment qualified immunity purposes.
Id.
In any event, under West Virginia law, police officers have
the authority to effect an arrest for minor traffic violations,
including the one at issue here.
The language of § 17C-19-3
does not support the reading of the statute that Pegg advances.
See § 17C-19-3 (prescribing arrest for traffic violations in
“any of the following cases,” not in “only the following cases”)
(emphasis
added).
Similarly,
the
statute
that
controls
the
procedure for issuing traffic citations, § 17C-19-4, does not
prohibit an officer from making an arrest instead of issuing a
citation.
That these two provisions do not prohibit an officer
from making arrests for certain minor offenses is supported by
yet
another
regulations,
West
§
Virginia
17C-19-5,
statute
which
pertaining
provides
that
to
“the
traffic
procedure
prescribed [in Chapter 17] shall not otherwise be exclusive of
any
other
method
prescribed
by
law
for
the
arrest
prosecution of a person for an offense of like grade.”
alternative
empowers
method
West
is
Virginia
described
State
in
§
Troopers
15-2-12(b)(1),
to
make
and
Such
which
warrantless
arrests when witness to “any offense or crime” (emphasis added).
As
noted
earlier,
Pegg
does
not
9
deny
that
his
offense
of
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operating a motor vehicle with an expired inspection sticker
occurred in the presence of Herrnberger.
As a result, under
Atwater and the West Virginia statutes, Herrnberger had probable
cause
to
arrest
Pegg
for
the
expired
inspection
sticker
violation.
The
district
court’s
determination
that
Herrnberger
arrested Pegg “in practicality” for assault and obstruction of
justice,
instead
ultimately
of
the
irrelevant.
expired
J.A.
inspection
375.
The
sticker,
proper
is
focus
also
of
the
inquiry is not any subjective reason for arresting Pegg, but
only the objective facts surrounding the arrest.
Court
has
previously
explained,
the
As the Supreme
“subjective
reason
for
making the arrest need not be the criminal offense as to which
the known facts provide probable cause.”
543
U.S.
146,
153
(2004).
Instead,
Devenpeck v. Alford,
the
Fourth
Amendment
requires an analysis under which a police officer’s action is
not
invalidated
objectively,
“‘as
justify
long
that
as
the
action.’”
circumstances,
Id.
(quoting
viewed
Whren
United States, 517 U.S. 806, 813 (1996)) (emphasis added).
v.
The
objective and undisputed fact of Pegg’s violation of § 17C-16-9
is fully sufficient, in and of itself, to justify his arrest. 4
4
Pegg’s violation of § 17C-16-9 established probable cause
for his arrest and a search incident to that arrest.
Accordingly, we need not consider whether Herrnberger’s actions
(Continued)
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Thus, Herrnberger did not violate the Fourth Amendment and he is
entitled to qualified immunity on this claim as a matter of law.
The district court erred in failing to grant summary judgment to
Herrnberger on Pegg’s claim of unlawful arrest.
B.
Qualified Immunity for Retaliatory Arrest
The probable cause inherent in Pegg’s violation of § 17C16-9 also defeats his First Amendment retaliatory arrest claim.
The Supreme Court “has never recognized a First Amendment right
to
be
free
from
probable cause.”
(2012).
a
retaliatory
arrest
that
is
supported
by
Reichle v. Howards, 132 S. Ct. 2088, 2093
Since the Reichle decision, no such right has been
recognized, so the Reichle principle is fully controlling here.
Pegg’s violation of § 17C-16-9 gave Herrnberger probable cause
to arrest Pegg; therefore his arrest was not retaliatory.
Contrary
to
the
district
court’s
conclusion,
it
is
not
enough, that Pegg “simply plead ‘an absence of probable cause’”
for his claim to survive summary judgment.
J.A. at 377 (citing
Tobey v. Jones, 706 F. 3d 379, 392 (4th Cir. 2013)).
The basis
for that rule is the assumption that “‘probable cause or its
were also permitted under Terry v. Ohio, 392 U.S. 1 (1968). See
United States v. Robinson, 414 U.S. 218, 235 (1973) (“A
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under U.S. Const. amend. IV; that intrusion
being lawful, a search incident to the arrest requires no
additional justification.”).
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absence will be at least an evidentiary issue in practically all
cases.’”
Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013)
(quoting Hartman v. Moore, 547 U.S. 250, 265 (2006)).
But in
distinction from the appeal in Tobey from the denial of a motion
to dismiss, the instant case is a decision on summary judgment.
This case is not one where probable cause remains an evidentiary
issue; it is undisputed that Pegg violated § 17C-16-9 in the
arresting officer’s presence, thereby establishing the probable
cause for his arrest.
Herrnberger is thus entitled to qualified
immunity on this claim as well and the district court erred in
not granting his motion for summary judgment.
C.
The
Qualified Immunity for Excessive Force
district
court
concluded
that
Herrnberger
was
not
entitled to qualified immunity for Pegg’s claim of excessive
force
on
the
“potentially
[Pegg].”
.
basis
.
.
of
its
finding
pre-disposed
to
that
using
Herrnberger
force
to
was
arrest
Herrnberger denies any such subjective predisposition,
but argues again that any subjective motivations in the mind of
the police officer do not factor into the qualified immunity
analysis.
We again agree with Herrnberger.
An inquiry into any predisposition for force on the part
of Herrnberger is an improper mode of analysis for a Fourth
Amendment excessive force claim.
12
“Subjective factors involving
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the
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officer’s
relevant.”
To
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motives,
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intent,
or
propensities
are
not
Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).
determine
whether
a
police
officer
applied
excessive
force in violation of the Fourth Amendment, we instead examine
officers’
actions
“in
light
of
the
facts
and
circumstances
confronting them, without regard to their underlying intent or
motivation.”
Graham
v.
Connor,
490
U.S.
386,
397
(1989).
Specifically, we examine “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.”
Id. at 396.
As when examining the lawfulness of an arrest, “[w]hether an
officer has used excessive force is analyzed under a standard of
objective reasonableness.”
Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011).
Though
Pegg’s
resisted arrest. 5
than
necessary
crime
was
not
severe,
he
admits
that
he
We conclude Herrnberger applied no more force
to
overcome
that
resistance.
Viewing
the
evidence in the light most favorable to Pegg, after Pegg placed
his left hand behind his back he failed to interlock his hands
as Herrnberger had just demonstrated to him seconds earlier.
5
“Request No. 6: Admit that you resisted Trooper
Herrnberger’s attempt to secure your hands behind your back.
Response: Admitted.” J.A. 101.
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Pegg then attempted to withdraw his right arm from Herrnberger's
grasp.
Herrnberger then briskly, but safely, took Pegg to the
ground.
no
Pegg remained on the ground for less than a minute and
longer
than
the
time
Herrnberger
needed
to
handcuff
him.
According to Pegg’s own statements, Herrnberger did not strike,
kick, or verbally abuse him.
simple maneuver
handcuffed,
to
ensure
Herrnberger
Instead, Herrnberger performed a
Pegg’s
assisted
compliance.
Pegg
back
Once
to
Pegg
a
was
standing
position and refrained from any further physical contact.
As a
result of the encounter, Pegg claims abrasions minor enough that
he treated them at home with Neosporin and peroxide and did not
seek
medical
resisting
minimis
assistance.
suspect
that
injuries
Herrnberger’s
An
causes
does
actions
efficient,
the
not
were
lawful
suspect
constitute
objectively
to
arrest
suffer
excessive
reasonable
entitled to qualified immunity as a result.
and
of
only
a
de
force.
he
is
The district court
erred in holding to the contrary.
D.
Qualified Immunity for West Virginia State Law Claims
Pegg’s
claims
for
complaint
battery
also
and
alleged
outrage
West
Virginia
(intentional
emotional distress) against Herrnberger.
state
infliction
law
of
Under West Virginia
law, a police officer is not entitled to qualified immunity when
his
or
her
conduct
results
in
constitutional or statutory violation.
14
a
clearly
established
See Hutchinson v. City
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of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).
A police
officer is also not entitled to qualified immunity under West
Virginia law if his or her conduct is “fraudulent, malicious, or
otherwise oppressive.”
Id.
1.
Battery
Battery under West Virginia law tracks the elements set
forth
in
the
Restatement
(Second)
of
Torts:
an
individual
commits battery when “(a) he acts intending to cause a harmful
or offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b) a
harmful
contact
with
indirectly results.”
the
person
of
the
other
directly
W. Va. Fire & Cas. v. Stanley, 602 S.E.2d
483, 494 (W. Va. 2004) (quoting the Restatement).
lawful
arrests
are
or
excluded
from
the
scope
of
Moreover,
West
Virginia
battery.
A person lawfully performing an arrest is afforded a
privilege
to
jurisdiction,
engage
so
in
long
arrests
as
within
the
force
is
the
limit
not
of
their
excessive.
Restatement (Second) at § 118; 132.
Relying on its analysis of the claims for unlawful arrest
and excessive force, the district court held that a reasonable
trier of fact could conclude “the force [Herrnberger] used was
unreasonable in the instant case.”
evident
from
our
analysis
of
the
J.A. 383.
foregoing
As should be
federal
claims,
Herrnberger did not apply excessive force when arresting Pegg.
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Accordingly,
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his
contact
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with
Pegg
would
be
privileged
for
qualified immunity purposes so long as it was not fraudulent,
malicious,
or
otherwise
oppressive.
Pegg
has
made
no
such
argument and there is nothing in the record that would allow a
conclusion that Herrnberger’s alleged actions were malicious or
oppressive.
Herrnberger
remained
calm
throughout
the
interaction and applied no more force than necessary to effect a
lawful arrest.
Moreover, that force was momentary and slight.
Herrnberger is thus entitled to qualified immunity on this claim
as well.
2.
The district court erred in finding otherwise.
Outrage, or Intentional Infliction of Emotional Distress
Pegg
argued,
and
the
district
court
agreed,
that
Herrnberger effected an unlawful arrest with excessive force,
which Pegg characterized as a violation of the special trust
society bestows upon law enforcement officers egregious enough
to support an outrage claim.
Herrnberger responded that the
arrest was lawful and performed with only the necessary force
and
therefore
cannot
form
the
basis
of
an
outrage
claim.
Herrnberger is correct.
Under West Virginia law, to establish the tort of outrage,
more
commonly
known
as
intentional
infliction
of
emotional
distress, the plaintiff must establish four elements:
(1)
that the defendant’s conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency;
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(2)
that the defendant acted with the intent to
inflict emotional distress, or acted recklessly
when it was certain or substantially certain
emotional distress would result from his conduct;
(3)
that the actions of the defendant caused
plaintiff to suffer emotional distress and;
(4)
that the emotional distress suffered by the
plaintiff was so severe that no reasonable person
could be expected to endure it.
the
Loudin v. Nat’l Liab. & Fire Ins., 716 S.E.2d 696, 705 (W. Va.
2011).
It
is
difficult
to
overstate
the
high
burden
of
proof
required to sustain a tort claim for intentional infliction of
emotional
distress/outrage.
West
Virginia
courts
only
find
liability for outrage “‘where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.’
standard indeed.”
This is a high
Keyes v. Keyes, 392 S.E.2d 693, 696 (W. Va.
1990) (quoting Harless v. First Nat’l Bank, 289 S.E.2d 692, 703–
04, n. 20 (W. Va. 1982)).
Viewed objectively and in the light most favorable to Pegg,
his
outrage
threshold.
battery,
outrage.
claim
does
not
come
close
to
meeting
the
legal
Herrnberger’s conduct does not rise to the level of
much
less
clear
the
much
higher
bar
required
for
A lawful arrest performed without excessive force is,
at worst, conduct that is “merely annoying, harmful of one’s
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rights or expectations, uncivil, mean-spirited, or negligent.”
Courtney v. Courtney, 413 S.E.2d 418, 423 (W. Va. 1991), rev’d
on other grounds, Courtney v. Courtney, 437 S.E.2d 436 (W. Va.
1993)).
Herrnberger’s arrest of Pegg was lawful and without
excessive force and does not “constitute outrageous conduct.”
Id.
The facts of this case are markedly milder than the kind of
conduct courts applying West Virginia law have found necessary
to
support
claim.
an
intentional
infliction
of
emotional
distress
See, e.g., Heldreth v. Marrs, 425 S.E.2d 157, 161–62 (W.
Va. 1992) (allowing an outrage claim to proceed when a husband
suffered a heart attack after witnessing his wife get struck by
a car and die); Hutchinson v. W. Virginia State Police, 731 F.
Supp.
2d
521,
531
(S.D.
W.
Va.
2010)
(finding
a
legally
cognizable claim for outrage for a female suspect who was pulled
from the shower by the hair during the execution of a search
warrant and forced to lie down naked for at least 45 minutes in
the presence of eleven male law enforcement officers, one of
whom slapped her behind) aff’d sub nom. Hutchinson v. Lemmon,
436 F. App’x 210 (4th Cir. 2011).
But see Keyes, 392 S.E.2d at
694 (disallowing an outrage claim when a family excluded a son
from his father’s obituary, burial plans, and the car ride to
the funeral); Lee v. City of S. Charleston, 668 F. Supp. 2d 763,
779 (S.D. W. Va. 2009) (disallowing outrage claim based on a
roadside public strip search that exposed arrestee’s genitals to
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the arresting officer); Lowe v. Spears, 2009 WL 1393860, at * 6
(S.D. W. Va. May 15, 2009) (disallowing outrage claim when an
officer arrested an individual for a minor offense, possibly in
response to arrestee’s use of profanity toward the officer).
Herrnberger is entitled to qualified immunity on this claim
and the district court erred in concluding otherwise.
III. Conclusion
For the foregoing reasons, we reverse the district court’s
order denying Herrnberger’s motion for summary judgment.
He was
entitled to qualified immunity for all claims as a matter of
law.
The case is therefore remanded to the district court for
the entry of judgment in favor of Herrnberger on all claims.
REVERSED AND REMANDED
WITH INSTRUCTIONS
19
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