Gregory Robinson v. The City of South Charleston

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cv-00330 Copies to all parties and the district court/agency. [999953391].. [15-2200]

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 1 of 11

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2200

GREGORY ROBINSON,
Plaintiff - Appellee,
v.
THE CITY OF SOUTH CHARLESTON; S.W. MILLER, a/k/a Steven W.
Miller; E.M. PETERSON, a/k/a Eric M. Peterson; E.R. MOYER,
a/k/a Engracio R. Moyer,
Defendants - Appellants.

Appeal from the United States District Court for the Southern
District of West Virginia at Charleston.
Thomas E. Johnston,
District Judge. (2:14-cv-00330)

Argued:

September 21, 2016

Decided:

October 24, 2016

Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.

Vacated in part and remanded by unpublished opinion.
Judge
Harris wrote the opinion, in which Chief Judge Gregory and Judge
Niemeyer joined.

ARGUED: Molly Underwood Poe, PULLIN, FOWLER, FLANAGAN, BROWN &
POE, PLLC, Charleston, West Virginia, for Appellants. Alexander
Deane McLaughlin, THE CALWELL PRACTICE, LC, Charleston, West
Virginia, for Appellee.
ON BRIEF: Benjamin Dean Adams, THE
CALWELL PRACTICE, LC, Charleston, West Virginia, for Appellee.

1

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 2 of 11

PAMELA HARRIS, Circuit Judge:
Plaintiff Gregory Robinson alleges that police officers in
South Charleston, West Virginia, violated his Fourth Amendment
rights by twice arresting him without probable cause.

Because

the district court incorrectly applied a subjective standard to
the

probable

cause

question,

we

vacate

and

remand

for

the

requisite objective analysis of probable cause.

I.
A.
This

case

began

with

a

report

of

employee

theft

at

a

Walmart in South Charleston, West Virginia, in July of 2012.
Officer Steven Miller of the South Charleston police department
responded,

and

Protection

Manager.

surveillance

met

video

with

Paul

Higginbotham,

Higginbotham
had

captured

“associates,” stealing Apple iPods.
6,

2012,

included

images

informed

of

two

Walmart’s

Miller

three

Asset

that

store

employees,

or

The first video, from July
Walmart

associates,

Jeremy

Hartwell and Jirald Davis, and showed Hartwell removing iPods
from a display case.

In the second, filmed on July 10, a third

associate – Robinson – also is on the scene, and Hartwell again
is seen taking iPods from the case.

2

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 3 of 11

Miller sought an arrest warrant for Robinson on July 19,
2012,

and

submitted

an

affidavit

setting

out

the

support of probable cause (the “First Affidavit”).
Miller’s

affidavit,

the

July

10

facts

in

According to

surveillance

video

showed

Robinson and Hartwell walking toward the display case, followed
by Davis, who “begins to talk to [Robinson].”
Hartwell

“select[s]

conceals

it

[Hartwell]

in

and

merchandise”

his

pocket,

distract

the

from

“Davis
other

the

J.A. 1055.
display

continues

associate”

Robinson – “from noticing the activity.”

–

While

case

to

and

observe

presumably,

Id.

A Kanawha County magistrate judge subsequently issued an
arrest warrant for Robinson.

Robinson, who was on vacation at

the time, voluntarily turned himself in to the police on July
30, 2012.

The charges against Robinson were dismissed without

prejudice,

following

a

preliminary

hearing

at

which

neither

Miller nor witnesses from Walmart appeared.
Walmart’s Higginbotham urged the police to resolve the case
against Robinson, and on November 20, 2012, the police again
sought an arrest warrant.

Officers Eric Peterson and Engracio

Moyer filed the second application, accompanied by a slightly
amended affidavit (the “Second Affidavit”).

In this version,

video of the July 10 episode shows Hartwell entering the scene
with Robinson “present,” while Davis speaks with Robinson and
“appears

to

distract

the

other
3

associates”

–

presumably,

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 4 of 11

associates other than Robinson – “from noticing the activity.”
J.A. 1059 (emphasis added).
A

magistrate

judge

again

issued

an

arrest

warrant,

Robinson once again turned himself in on the warrant.

and
This

time, the relevant police officers – Peterson and Moyer – were
present at the hearing.
and

at

the

conclusion

But they were never called to testify,
of

the

hearing,

the

magistrate

judge

dismissed the charges against Robinson, without prejudice, for
lack of probable cause.
B.
In December 2013, Robinson brought a § 1983 action against
Officers

Miller,

Peterson

and

Moyer

(the

“individual

defendants”), alleging two Fourth Amendment violations:

first,

that the officers had sought arrest warrants based on affidavits
that failed to establish probable cause; and second, that the
officers had arrested Robinson without probable cause.

Robinson

also sued the City of South Charleston, claiming that the City
was liable under § 1983 for its failure to train its police
officers with respect to probable cause. See Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658 (1978).

Finally,

Robinson raised state-law malicious prosecution claims against
each of the individual defendants.
The

defendants

Robinson’s claims.

moved

for

summary

judgment

on

all

of

With respect to Robinson’s Fourth Amendment
4

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 5 of 11

claims under § 1983 – central to this appeal – the individual
defendants argued, in part, that they were entitled to qualified
immunity.
summary

Robinson opposed the defendants’ motion and sought

judgment

on

his

Fourth

Amendment

deficient-affidavit

claims against the individual defendants.
The district court granted Robinson’s motion as to Officer
Miller and denied summary judgment to the defendants.

The First

Affidavit, the district court held, was a “textbook example of
an

affidavit

that

utterly

fails

basis” for an arrest warrant.

to

provide

J.A. 1075.

a

probable

cause

The affidavit did no

more than put Robinson in the vicinity of illegal activity at
his

own

workplace,

and

actually

provided

the

“exculpatory

statement” that another employee “distract[ed]” Robinson during
the theft.

J.A. 1076.

Because Officer Miller’s decision to

seek a warrant based on this “patently insufficient” affidavit,
id., was objectively unreasonable, the district court concluded,
Miller was not protected by qualified immunity.
The Second Affidavit, filed by Officers Peterson and Moyer,
fared little better.
language,”

J.A.

Robinson’s

Though it no longer contained “exculpatory

1079,

presence

it

at

continued

the

scene,

to

rest

without

entirely
including

on
any

information suggesting actual involvement in criminal activity.
But

despite

establish

finding

probable

that

cause,

the
the

Second
district

5

Affidavit
court

failed

denied

to

summary

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 6 of 11

judgment to Robinson on this claim.

Because Peterson and Moyer

consulted with a prosecutor before seeking the arrest warrant,
the district court held, they might be entitled to qualified
immunity – a question that could not be resolved on summary
judgment because of factual disputes regarding the nature of
that consultation.
The

district

court

turned

next

to

Robinson’s

allegation

that he was arrested without probable cause, treating it as a
separate Fourth Amendment claim analogous to the common-law tort
of

malicious

prosecution.

The

critical

question,

the

court

held, was whether the information known to the officers at the
time

of

criminal

Robinson’s
activity.

arrests
And

on

amounted
that

to

probable

question,

too,

cause

the

of

district

court found “pervasive discrepancies” in the record, J.A. 1102,
precluding

an

award

of

summary

judgment

to

the

individual

defendants on their qualified immunity defense.

Among those

issues

whether

of

officers

material

the

court

“interpreted”

had

fact,

the

Walmart

held,

was

surveillance

video

the
as

showing evidence of Robinson’s involvement in criminal activity.
J.A. 1104.
Finally, the district court denied the defendants’ motion
for summary judgment on Robinson’s § 1983 Monell claim against
the

City

and

defendants.

on

his

state-law

claims

against

Defendants timely noted this appeal.
6

the

individual

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 7 of 11

II.
A.
Under

28

U.S.C.

§

1291,

we

have

jurisdiction

“final decisions” of the district courts.

to

review

As a general rule, a

decision like the one below – granting the plaintiff partial
summary judgment and denying summary judgment to the defendants
– would not qualify as a final decision because it does not
“end[]

the

litigation

on

the

merits,”

resolving

all

of

the

parties’ claims and leaving “nothing for the court to do but
execute the judgment.”

Porter v. Zook, 803 F.3d 694, 696 (4th

Cir. 2015) (citation and internal quotation marks omitted); see
Bellotte v. Edwards, 629 F.3d 415, 426 (4th Cir. 2011) (holding
partial grant of summary judgment is not “final decision” for
purposes of 28 U.S.C. § 1291).
But “notwithstanding the absence of a final judgment,” we
do have jurisdiction to review “a district court’s denial of a
claim of qualified immunity, to the extent that it turns on an
issue of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);

Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007).

Our review

is limited to questions of law; in this posture, we may not
review a district court determination that “the pretrial record
sets forth a ‘genuine’ issue of fact for trial.”
7

Gould v.

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 8 of 11

Davis, 165 F.3d 265, 268 (4th Cir. 1998) (citation and internal
quotation marks omitted).
We review de novo the district court’s denial of summary
judgment and qualified immunity.

Am. Civil Liberties Union of

Maryland, Inc. v. Wicomico Cty., Md., 999 F.2d 780, 784 (4th
Cir. 1993).
B.
We begin – and end, as explained below – with Robinson’s
claim

that

he

was

district

court’s

summary

judgment

defendants

argue

arrested

decision
on
that

their
the

without

to

deny

probable
the

qualified
court

cause,

individual

immunity

committed

a

and

the

defendants

defense.
legal

error

The
in

denying qualified immunity, applying a subjective rather than
objective standard to the question of probable cause.
“The

Fourth

Amendment

prohibits

law

We agree.

enforcement

officers

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

Brooks v.

City of Winston-Salem, N.C., 85 F.3d 178, 183 (4th Cir. 1996).
Whether there is probable cause to justify an arrest turns on
the “facts and circumstances” known to the officer at the time
of the arrest, Michigan v. DeFillippo, 443 U.S. 31, 37 (1979),
and whether those known facts give rise to a “fair probability”
that the suspect has committed a crime, Florida v. Harris, 133
S. Ct. 1050, 1055 (2013) (defining probable cause).
8

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Critically,
subjectively.

probable

Pg: 9 of 11

cause

is

measured

objectively,

not

United States v. Gray, 137 F.3d 765, 769 (4th

Cir. 1998) (defining probable cause as “objective standard of
probability
everyday
knowledge

that

life”).
of

reasonable
While

arresting

we

and

prudent

“examine

officers

to

the

persons
facts

determine

apply
within

whether

in
the
they

provide a probability on which reasonable and prudent persons
would act[,] we do not examine the subjective beliefs of the
arresting officers to determine whether they thought that the
facts constituted probable cause.”

Id. (emphasis in original).

The district court appears to have done just that, taking a
distinctly

subjective

determination.

approach

to

the

probable

cause

All of the individual defendants pointed to the

images captured on the Walmart surveillance video as a critical
factor giving rise to probable cause that Robinson had engaged
in criminal activity.

But the district court did not watch the

video, though it was made a part of the record, and so the court
could not determine for itself whether the video contributed to
probable cause as an objective matter.

Instead, the district

court considered whether the officers “interpreted” the video as
suggestive of Robinson’s involvement in the theft.
see id. at 1099, 1109 n.13.
the

officers

themselves

J.A. 1104;

And it was on this point – whether

believed

that

the

video

indicated

Robinson’s complicity – that the district court identified a
9

Appeal: 15-2200

Doc: 41

factual

Filed: 10/24/2016

dispute

precluding

the

Pg: 10 of 11

award

of

summary

judgment,

reasoning that the descriptions of the video provided in the
First and Second Affidavits suggested that the officers did not
interpret the video in a way that incriminated Robinson.
Under

the

correct

Fourth

Amendment

standard,

how

the

individual defendants subjectively interpreted the surveillance
video is not a “material fact.”

Cf. Bostic v. Schaefer, 760

F.3d 352, 370 (4th Cir. 2014) (“Summary judgment is appropriate
when ‘there is no genuine dispute as to any material fact and
the

movant

is

entitled

to

judgment

as

a

matter

of

law.’”)

(quoting Fed. R. Civ. P. 56(a)).

The only relevant question is

whether

persons,”

along

“reasonable

with

any

and

other

prudent

evidence

within

the

viewing

the

knowledge

video

of

the

officers at the time of Robinson’s arrest, would be warranted in
believing to a fair probability that Robinson had engaged in
criminal activity.
is

sufficiently

Gray, 137 F.3d at 769.

close

that

an

objectively

And if the question
reasonable

officer

could conclude that probable cause existed, then the individual
defendants

are

entitled

to

qualified

immunity.

See,

e.g.,

Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001).
Accordingly, we cannot affirm the district court’s denial
of qualified immunity to the officers on Robinson’s claim that
he was arrested without probable cause.

10

Instead, we vacate that

Appeal: 15-2200

Doc: 41

Filed: 10/24/2016

Pg: 11 of 11

ruling and remand to the district court so that it may undertake
the requisite objective inquiry into probable cause.
We recognize that a district court finding that Robinson’s
arrest was supported by probable cause might affect Robinson’s
other

claims,

sufficient

as

to

well.

justify

For
a

instance,

public

probable

arrest

under

cause

the

is

Fourth

Amendment, regardless of the validity of the arrest warrants
obtained by the officers or any deficiencies in the affidavits
supporting them.

See Graves v. Mahoning Cty., 821 F.3d 772,

774-76

2016).

(6th

Cir.

And

whether

the

officers

in

fact

arrested Robinson without probable cause also may be relevant to
Robinson’s failure-to-train claim against the City and to his
state-law malicious prosecution claims.

We express no view on

those issues, and leave it to the district court to consider in
the

first

instance

what

effect,

if

any,

its

disposition

of

Robinson’s claim that he was arrested without probable cause has
on the remainder of this case.

VACATED IN PART AND REMANDED

11