Brandon Pegg v. Grant Herrnberger


PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cv-00116-JPB. [999997475]. [15-1999]

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Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 1 of 19 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. Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 2 of 19 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 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 3 of 19 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 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 4 of 19 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 Appeal: 15-1999 Doc: 34 court’s ruling Filed: 01/04/2017 as to the Pg: 5 of 19 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. 5 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 6 of 19 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. 6 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 7 of 19 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 7 Appeal: 15-1999 Doc: 34 (2001). In Filed: 01/04/2017 Atwater, the Pg: 8 of 19 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. 8 Appeal: 15-1999 of Doc: 34 traffic Filed: 01/04/2017 offenses that Pg: 9 of 19 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 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 10 of 19 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) 10 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 11 of 19 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.”). 11 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 12 of 19 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 Appeal: 15-1999 the Doc: 34 officer’s relevant.” To Filed: 01/04/2017 motives, Pg: 13 of 19 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. 13 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 14 of 19 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 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 15 of 19 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. 15 Appeal: 15-1999 Doc: 34 Accordingly, Filed: 01/04/2017 his contact Pg: 16 of 19 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; 16 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 17 of 19 (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 17 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 18 of 19 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 18 Appeal: 15-1999 Doc: 34 Filed: 01/04/2017 Pg: 19 of 19 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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