Birdsong v. City of Wilson et al

Filing 32

ORDER denying 22 Motion for Summary Judgment. Signed by US District Judge Terrence W. Boyle on 5/2/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-273-BO
JEROME BIRDSONG,
Plaintiff,
v.
JESSE J. EMORY, individually and as an
employee of the City of Wilson, North
Carolina; and THE CITY OF WILSON,
NORTH CAROLINA,
Defendants.

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ORDER

This cause comes before the Court on defendants' motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded, defendants
have replied, and the matter is ripe for ruling. A hearing was held on the motion before the
undersigned on April 13, 2017, at Raleigh, North Carolina. For the reasons that follow,
defendants' motion is denied.
BACKGROUND
On the evening of Friday June 29, 2012, plaintiff was walking down Lane Street in
Wilson, North Carolina after having made a purchase at Nancy's Market, a conveni~nce store.
The area around the market is known to police for hand to hand drug sales. When plaintiff was
about one hundred feet from the market, a group of police officers got out of an unmarked van to
conduct a "jump out" - a tactic in which a group of police officers will quickly exit an unmarked
vehicle and attempt to engage people in an area in conversation. Plaintiff had previously been
stopped, questioned, and frisked as a part of a 'jump out" and on this night continued walking

away from the market. Two officers, defendant Emory and Officer Snider, who is not named as
a defendant, called out to plaintiff but did not give him a command to stop.
Plaintiff continued walking away from the officers and denies doing anything suspicious;
Emory testified in his deposition that while plaintiff was walking away he could be seen
engaging in furtive movements around his waistband. The officers began to run toward plaintiff
and plaintiff began to run as well. Plaintiff contends that after running from the officers for a
brief time he came back to the street and decided to give himself up in a public area. Plaintiff
testified that after he stopped running he complied with a command from the officers to put his
hands over his head. Plaintiff states that he was then struck from behind, lifted by one of the
officers in the air, and slammed to the ground, injuring his right cheek. The officers have stated
that they did not give plaintiff a command to put his hands on his head, that plaintiff did not put
his hand on his head, and that plaintiff never stopped running on his own but rather was brought
to the ground by Officer Snider in a "controlled fall" maneuver. Once on the ground plaintiff
was handcuffed.
Plaintiff states that he was then strip searched on the street in plain view of others; the
statement of witnesses who could see plaintiff being strip searched have been proffered by
plaintiff. After being searched by both police officers and K-9, no weapons or contraband were
found either on plaintiff or on the path that plaintiff took while being pursued by the officers.
Plaintiff was briefly examined by emergency medical technicians (EMTs) and was then brought
before a Wilson County magistrate who found probable cause based on defendant Emory's
testimony to arrest plaintiff for willfully and unlawfully resisting, delaying and/or obstructing a
police office in discharging or attempting to discharge a duty of his office in violation ofN.C.
Gen. Stat. § 14-223. Plaintiff was released without a bond and the charge was ultimately

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dismissed by an assistant district attorney before trial. Two days following the incident, plaintiff
sought medical treatment for the injury to his face and was diagnosed with a fracture to his right
orbital bone.
Plaintiff filed this suit under 42 U.S.C. §§ 1983 and 1988 for violations of his federal
constitutional rights, specifically his liberty interest in bodily integrity under the due process
clause of the Fourteenth Amendment, his Fourth Amendment right to be free from excessive
force and unreasonable search and seizure, and his Fourteenth Amendment right to due process
prior to infliction of corporal punishment. Plaintiff has also alleged a § 1983 claim for malicious
prosecution as well as state law claims for battery, gross negligence, and malicious
prosecution/abuse of process. Defendants have moved for summary judgment in their favor on
all claims and have raised the affirmative defense of qualified immunity.
DISCUSSION
A motion for summary judgment may not be granted unless there are no genuine issues
of material fact for trial and the movant is entitled to judgment as a matter oflaw. Fed. R. Civ.
P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has
been met, the non-moving party must then come forward and establish the specific material facts
in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a
trial court views the evidence and the inferences in the light most favorable to the nonmoving
party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla
of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A dispute is

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genuine if a reasonable jury could return a verdict for the nonmoving party.... and [a] fact is
material if it might affect the outcome of the suit under the governing law." Libertarian Party of
Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted).
Speculative or conclusory allegations, however, will not suffice. Thompson v. Potomac Elec.
Power Co., 312 F.3d 645, 649 (4th Cir. 2002).

I.

Section 1983 and 1988 claims
Defendants contend, and plaintiff does not contest, that plaintiffs liberty interest,

excessive force, and malicious prosecution claims are properly analyzed under a Fourth
Amendment rubric as these claims all flow from his allegedly unreasonable seizure both at the
time he was stopped and at the time he was arrested. See Graham v. Connor, 490 U.S. 386, 3945 (1989); see also Lambert v. Williams, 223 F.3d 257, 262 (4th Cir. 2000) (noting "there is no
such thing as a'§ 1983 malicious prosecution' claim.").
Qualified immunity shields government officials from liability so long as they could
reasonably believe that their conduct does not violate clearly established law. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en bane). It protects "all but the plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S.

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341 (1986); see also Reichle v. Howards, 566 U.S. 658,

132 S. Ct. 2088, 2093 (2012). A court employs a two-step procedure for determining whether
qualified immunity applies that "asks first whether a constitutional violation occurred and second
whether the right violated was clearly established." Melgar v. Greene, 593 F.3d 348, 353 (4th
Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194 (2001)). Again, the facts are construed in the
light most favorable to plaintiff. Id

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It is undisputed that plaintiff was seized by defendant Emery and Officer Snider. As
there are genuine issues of material fact in the record as to whether a reasonable articulable
suspicion existed to support plaintiffs seizure or whether probable cause existed to support
plaintiffs arrest, the motion for summary judgment on plaintiffs Fourth Amendment and
derivative claims is denied. See Pritchett v. Alford, 973 F .2d 307, 313 (4th Cir. 1992) (while
determination of whether a right is clearly established is a legal question always answerable at
summary judgment, where there are issues of fact with respect to the officer's conduct or its
reasonableness summary judgment is inappropriate).
In order to justify a brief, investigatory stop of a citizen on a public street, an officer must
have reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1,
21 (1968). Reasonable suspicion is a less demanding standard than probable cause, but an
officer "must be able to articulate more than an inchoate and unparticularized suspicion or
'hunch' of criminal activity." Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000) (internal
quotation marks omitted) (quoting Terry, 392 U.S. at 27). Although the character of the area and
a subject's flight from officers will weigh in favor of a reasonable suspicion of criminal activity,

Wardlow, 528 U.S. at 124, the record here, when taking the facts in the light most favorable to
plaintiff, does not support finding that defendant Emery is entitled to qualified immunity at this
stage. Plaintiff asserts that he was merely walking away from the officers, unhurriedly, when
they called out to him, and it is undisputed that no command to stop was given prior to the chase.

See Florida v. Royer, 460 U.S. 491, 498 (1983) (refusal to listen or answer police after being
approached on the street does not provide a basis for detention). Plaintiff denies making
"furtive" movements near his waistband and contends that he only began to run after the officers
began to chase him. Further, as to the second step of the inquiry, a citizen's right to Q_e free from

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an investigatory seizure in the absence of a reasonable articulable suspicion of criminal activity
was plainly established at the time of this incident.
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Where, as here, an individual was arrested pursuant to an arrest warrant issued by a
neutral and detached magistrate, the seizure will be found to be unreasonable only ifthe officer
did not have probable cause to seek the warrant. Malley, 475 U.S. at 344 n.7 (1986) (issuance of
a warrant does not "break the causal" chain between the complaint and the arrest). The question
then is "whether a reasonably well-trained officer in [defendant's] position would have known·
that his affidavit failed to establish probable cause and that he should not have applied for the
warrant." Id. at 345. Probable cause is a result of a practical, common-sense consideration of all
of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983); Smith v. Munday, 848 F.3d
248, 253 (4th Cir. 2017). Probable cause "requires more than a bare suspicion" but less than
evidence sufficient to convict. United States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998). It is an
objective standard which "turns on two factors: the suspect's conduct as known to the officer,
and the contours of the offense thought to be committed by that conduct." Smith, 848 F.3d at
253 (internal quotation marks and citation omitted); see also Graham v. Gagnon, 831 F.3d 176,
183 (4th Cir. 2016) ("we have repeatedly held that arrest warrants do not confer immunity if it
was objectively unreasonable to conclude there was probable cause for the arrest."). Only the
information known to the officer at the time he sought the arrest warrant is relevant. Smith, 848
F.3d at253.
Plaintiff's flight from defendant Emery and Officer Snider forms the basis for his arrest
for resisting a public officer in violation ofN.C. Gen. Stat. § 14-223. The elements of that crime
are
1) that the victim was a public officer;

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2) that the defendant knew or had reasonable grounds to believe that the victim
was a public officer;
3) that the victim was discharging or attempting to discharge a duty of his office;
4) that the defendant resisted, delayed, or obstructed the victim in discharging or
attempting to discharge a duty of his office; and
5) that the defendant acted willfully and unlawfully, that is intentionally and
without justification or excuse.
State v. Sinclair, 191 N.C. App. 485, 488-89 (2008) (citation omitted). "The third element of the
offense presupposes lawful conduct of the officer in discharging or attempting to discharge a
duty of his office." Id (citation omitted). Because there is question of fact as to the validity of
the Terry stop initiated against plaintiff, the Court finds there further to be a question of fact as to
whether a reasonable officer would have found probable cause to arrest plaintiff for resisting a
public officer. The state courts have held that flight from a consensual encounter cannot be used
as evidence of a violation of §14-223, and that in the absence of a lawful investigatory stop an
officer does not have sufficient evidence to charge resisting a public officer. Id at 491-2; see
also State v. Joe, 213 N.C. App. 148, 156 (2011), vacated in part on other grounds, 365 N.C.
538 (2012) (flight from consensual encounter not evidence ofresisting a public officer charge).
Accordingly, a determination as to whether qualified immunity is applicable to plaintiffs claims
concerning his arrest are premature at this time.
The first question of the qualified immunity analysis as it relates to plaintiffs excessive
force claim addresses whether the officers violated plaintiffs right to be free from seizure by
excessive force. Schultz v. Braga, 455 F.3d 470, 476 (4th Cir. 2006). Whether an officer used
excessive force to effect a seizure is analyzed under an objective reasonableness standard,
without regard to the officer's subjective intention or motivation. Id at 477. A court does
consider, however, the facts and circumstances confronting the officer, and it must focus its
attention on the moment the force was employed. Henry, 652 F .3d at 531 (citations omitted).

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Specific factors to be considered are the severity of the crime at issue, whether the suspect poses
an immediate threat, and whether the suspect is actively resisting or attempting to flee. Graham
v. Connor, 490 U.S. 386, 396 (1989). Whether the officer's conduct was reasonable is a question

of law to be decided after determining "the relevant set of facts and draw[ing] all inferences in
favor of the nonmoving party to the extent supportable by the record." Scott v. Harris, 550 U.S.
372, 381 n.8 (2007) (emphasis removed).
At this stage of the proceeding, the record supports the presence of facts which, when
viewed in the light most favorable to plaintiff, support a finding that the force employed when
effecting plaintiffs seizure was excessive. Plaintiffs statements support that he had stopped
running, that he had raised his hands above his head, that he was struck from behind by one of
the officers with a blow, and that he was lifted into the air and slammed to the ground. The level
of force allegedly employed to stop a stationary person who is not resisting was excessive.
"Tackling a stationary individual, who is not resisting arrest or attempting to flee, constitutes
excessive force in violation of the Fourth Amendment." Geba v. Norris, No. 2:14CV612, 2016
WL 8730898, at *6 (E.D. Va. Apr. 4, 2016); see also Sloan v. Dulak, 868 F. Supp. 2d 535, 541
(W.D. Va. 2012) (listing cases holding same). The facts as viewed in the light most favorable to
plaintiff further do not support defendant's belief that plaintiff was possibly armed or attempting
to conceal contraband in his waistband. Thus, in the absence of fact finding as to whether
plaintiff had stopped running and whether he was struck from behind and thrown to the ground,
the Court cannot determine whether qualified immunity would apply.
Plaintiff further alleges that his being subjected to a strip search on the street in view of
others violated his constitutional rights and has proffered evidence in support of such claim. See,
e.g. Barnes Dep. at 37-38. "Strip searches of detainees are constitutionally constrained by due

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process requirements ofreasonableness under the circumstances." Logan v. Shealy, 660 F.2d
1007, 1013 (4th Cir. 1981). The need for a particular search must be balanced against the
invasion of rights it causes, and the scope of the search, the manner in which it was conducted,
and the justification for the search must all be considered. Bell v. Wolfish, 441 U.S. 520, 559
(1979).
Here, because "[t]he facts surrounding [plaintiff]'s strip search [are] inextricably
intertwined with the facts surrounding his initial confrontation with the police [and] his arrest ...
it is impossible to isolate the inquiry into the constitutionality of the strip search from the other
facts." Abshire v. Walls, 830 F.2d 1277, 1283 (4th Cir. 1987). Summary judgment is therefore
inappropriate on plaintiff's due process claim.
Plaintiff has also alleged a policy or custom claim against the City and Emory in his
official capacity. There is no respondeat superior liability under§ 1983; rather, in order to hold a
municipality liable for a violation of a person's constitutional rights, a plaintiff must demonstrate
that the City was aware of the constitutional violation and either "participated in, or otherwise
condoned, it." Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004) (see also Monell v. Dep 't

ofSoc. Servs., 436 U.S. 658, 691 (1978)). Municipal liability only results "when execution of a
government's policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury." Monell 436 U.S. at 694.
Defendants have proffered a number of training records to demonstrate that the City of
Wilson has properly trained its police officers. See [DE 25-1]. Plaintiff claims, however, that
the Wilson Police Department engaged in a pattern of conduct against plaintiff that amounts to
harassment and that any violation of plaintiff's constitutional rights was the product of a policy
or custom of the Wilson Police Department. In support, plaintiff points to his repeated seizures

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and searches resulting from 'jump outs" conducted by Wilson police officers, as well as
evidence that Officer Snider was permitted to continue to work with the public jn spite of
personal problems and a recommendation that he seek mental health counseling. See Snider
Dep. at 69-78. Plaintiff contends that the result of Officer Snider not receiving counseling was at
least two incidents, plaintiffs and another - a depiction of which plaintiff has proffered as video
evidence [DE 29], where an individual was unjustifiably slammed to the ground and detained.
The Court finds that plaintiff has sufficiently rebutted defendants' evidence regarding proper
training and that his Monell policy or custom claim may proceed.
II.

State law claims
Plaintiff has also filed state law claims for battery, gross negligence, and malicious

prosecution/abuse of process. Defendants have raised the defense of public officer immunity.
Because the question of qualified remains open as to the Fourth Amendment claims, the Court
declines to consider whether the defense of governmental immunity applies to plaintiffs state
law claims. See Cooper v. Sheehan, 735 F.3d 153, 160 (4th Cir. 2013) (merits of battery, gross
negligence claims tied to reasonableness of officers' actions, and thus go forward with excessive
force claims) (citing Rowland v. Perry, 41F.3d167, 174 (4th Cir. 1994); Bailey v. Kennedy, 349
F.3d 731, 745 (4th Cir. 2003) (assault and battery claim available if officer used excessive force);
Beroth Oil Co. v. Whiteheart, 173 N.C. App. 89, 99 (2005) (absence of probable cause element
of malicious prosecution claim).
CONCLUSION
In sum, genuine issues of material fact preclude a finding on the availability of the
defenses of qualified immunity and public officer immunity under state law at this time.

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Defendants' motion for summary judgment [DE 22] is therefore DENIED. The clerk is
DIRECTED to refer this matter for pretrial conference.

SO ORDERED, this-$- day of May, 2017.

~l.J.
RRENCEW.

BOYLE
UNITED STATES DISTRICT JUDGE

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