Kelly v. Conner et al
MEMORANDUM AND ORDER granting 38 Motion for Summary Judgment; granting 39 Motion to Dismiss and/or Summary Judgment; granting 41 Motion for Summary Judgment; denying 43 Motion for Partial Summary Judgment; granting 44 Motion to Dismiss and Motion for Summary Judgment. The Complaint is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge David S. Cayer on 5/27/2015. (tmg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 3:13-CV-00636-DSC
JUSTIN SHERILL KELLY,
SARAH H. CONNER, et al.,
MEMORANDUM AND ORDER
THIS MATTER is before the Court on Defendants’ City of Charlotte and Rodney
Monroe, in his official capacity as the Police Chief for the Charlotte Mecklenburg Police
Department (“CMPD”) “Motion for Summary Judgment,” Doc. 38; Defendants’ Michael Ford,
William Murray, Eric Mickley, Jason Kerl and Gilberto a/k/a Gil Narvaez, individually and in
their official capacity as law enforcement officers with the CMPD “Motion for Summary
Judgment,” Doc. 39; “Defendant Sarah Conner’s Motion to Dismiss and/or Summary
Judgment…,” Doc. 41; “Defendant North Carolina Private Protective Services Board’s Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and Motion for Summary Judgment…,” Doc. 44; and
“Plaintiff’s Motion for Partial Summary Judgment,” Doc. 43, as well as the parties’ associated
briefs, affidavits, and exhibits. See Docs. 40, 42, 45-60, 68-71.
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and
these Motions are now ripe for the Court’s determination.
Having carefully considered the parties’ arguments, the record, and the applicable
authorities, the Court grants Defendants’ Motions for Summary Judgment and denies Plaintiff’s
Motion for Partial Summary Judgment, as discussed below.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Justin Sherill Kelly seeks damages pursuant to 42 U.S.C. § 1983 for violation of
his Fourth Amendment rights to be free from false arrest and unreasonable search and seizure. He
also asserts state law claims for false arrest, intentional infliction of emotional distress, negligent
infliction of emotional distress, malicious prosecution, abuse of process, trespass to chattels,
conversion, and state RICO violations.
Plaintiff also alleges violation of his Fourteenth
Amendment rights to Due Process and Equal Protection and seeks declaratory and injunctive relief
related to the general application of the Private Protective Services Act, Chapter 74C of the North
Carolina General Statutes (“the Act”).
Pursuant to Chapter 74C, Defendant Private Protective Services Board (the “Board”), an
agency of the State of North Carolina and a part of the Attorney General's Office at the time of the
events herein (and now under the Department of Public Safety), is tasked with licensing
individuals and businesses that engage in private protective services in North Carolina, maintaining
the registration of armed and unarmed security guards employed by licensed businesses and
maintaining the registration of armed security guards for companies with proprietary security
services. Any person, firm, corporation or individual engaged in private security activities is
required by Chapter 74C to be licensed and registered with the Board.
Club Kalipzo is a public club located at 5920 North Tryon Street in Charlotte, North
Carolina. Club Kalipzo has a permit to sell alcohol but is not licensed by the Board. On January
22, 2011, Plaintiff was working as a security guard in the parking lot of Club Kalipzo. An
unknown patron stabbed a bouncer at the club and Charlotte Mecklenburg Police (“CMPD”) were
called. While waiting for CMPD officers to arrive, the unknown patron ran across the parking lot
and began firing a handgun at Plaintiff. Plaintiff drew his handgun and the unknown patron fled
the scene. When CMPD officers arrived, Officer J. Moore wrote an incident report and Plaintiff
voluntarily surrendered his handgun for testing.
On February 12, 2011 Officer Moore advised Plaintiff that he was being charged with
working as an “armed security guard” without having his firearm registered with the Board in
violation of the Act. Plaintiff surrendered himself and was detained for approximately six hours
before being released on an unsecured bond.
On June 1, 2011, Plaintiff was tried before Mecklenburg County District Court Judge Matt
Osman. Judge Osman found Plaintiff not guilty and ordered his firearm returned to him. In July
2011, CMPD returned Plaintiff’s firearm.
Plaintiff continued to work as a security guard for Club Kalipzo and carry a firearm for his
In early October 2011, Detective Jason Kerl was assigned to CMPD’s Alcoholic Beverage
Control (ABC) unit. Officers assigned to this unit had enforcement authority under a grant from
the Mecklenburg ABC Commission. Detective Kerl was asked by a supervisor to investigate the
armed security guards working in the parking lots of some nightclubs and determine if they were
Detective Kerl contacted the Board’s Investigator Sarah Conner and asked her to
accompany him on the inspections. Detective Kerl devised an operational plan to inspect
approximately twelve nightclubs.
On October 14, 2011, at around 9:00 p.m., ten to twelve CMPD officers and Investigator
Conner arrived at Club Kalipzo. CMPD officers observed Plaintiff dressed in black including a
black tactical vest with a pistol strapped to the front. Detective Eric Mickley and another officer
approached Plaintiff and asked if he had a permit to carry the weapon. Plaintiff advised that he
did not have a permit from the Board and this was confirmed by Investigator Conner. Plaintiff
was placed under arrest by Detective Mickley for working as an armed security guard without a
permit in violation of the Act. Two guns and a knife were seized from Plaintiff.
On February 23, 2012, Mecklenburg County District Court Judge Kimberly Best-Staton
found Plaintiff guilty on all charges. Plaintiff appealed to Superior Court.
On March 21, 2012, while the state charges were on appeal, a federal Grand Jury returned
an Indictment charging Plaintiff with possession of a firearm after having been convicted of a
misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). A Superseding
Indictment added a charge under 18 U.S.C. § 922(a)(6) for making false statements during the
purchase of two firearms. The Indictment charged that Plaintiff falsely represented that he had not
been convicted of a misdemeanor crime of domestic violence on ATF Form 4473. Chief U.S.
District Judge Frank D. Whitney was assigned to this case, United States v. Justin Kelly, No. 3:12cr-108-FDW-DSC.
On April 10, 2012, in deference to the pending federal Indictment, the Mecklenburg
County District Attorney dismissed the state charges brought under the Act.
In the federal case, Plaintiff filed a Motion to Suppress the seizure of the two firearms taken
during his arrest on October 14, 2011. On August 29, 2012, Judge Whitney found that the officers
had probable cause to arrest Plaintiff for violating the Act and that the two firearms were in plain
view and thus lawfully seized.
On January 7, 2013, Judge Whitney ruled that Plaintiff’s prior  state conviction for
assault on a female did not qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C.
§ 922(g)(9) and dismissed Count One of the federal Indictment. Two weeks later, on January 22,
2013, Judge Whitney dismissed the second Count thereby concluding the federal case.
On November 11, 2013, Plaintiff filed the instant action against Defendants Sarah Conner
in her individual and official capacities as an Investigator for the Board, the Board, CMPD Officers
Michael Ford, William Murray, Gilberto a/k/a Gil Narvaez, Jason Kerl and Eric Mickley in their
individual and official capacities, Chief of Police Rodney Monroe, James Kevin Galyan1 and the
City of Charlotte.
The Parties’ Motions for Summary Judgment have been fully briefed and are ripe for
II. DISCUSSION OF CLAIMS
Standard of Review
Federal Rule of Civil Procedure 56(a) provides:
A party may move for summary judgment, identifying each claim or defense-or the
part of each claim or defense—on which summary judgment is sought. The court
shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.
The court should state on the record the reasons for granting or denying the motion.
Fed.R.Civ.P. 56(a). The Rule provides procedures for establishing the presence or absence of any
genuine dispute as to any material fact:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
Plaintiff obtained a default judgment against Galyan on April 9, 2014.
purposes of the motion only), admissions, interrogatory answers,
or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials,
but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Although the moving party bears the initial burden of stating the basis for the motion and
identifying what evidence demonstrates the absence of a genuine issue of material fact, summary
judgment must be entered “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The facts must be viewed in
the light most favorable to the non-moving party, and where the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. See
Ricci v. DeStefano, 557 U.S. 557, 585 (2009) (citations omitted).
“The nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory
allegations to defeat a motion for summary judgment.” Coleman v. United States, 369 F. App’x
459, 461 (4th Cir. 2010) (citing Baber v. Hosp. Corp. of Am., 977 F.2d 872, 875 (4th Cir.1992)).
The party asserting that a fact cannot be or is genuinely disputed must cite to particular materials
in the record, including depositions, documentary evidence, affidavits and declarations.
Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–
48 (1986) (emphasis in original).
The nexus of Plaintiff’s claims is that Defendants misapplied the Act, resulting in his false
arrest on two occasions and the subsequent unlawful search and seizure of his property. Section
1983 provides relief for civil rights violations committed under color of state law. Jenkins v.
Medford, 119 F.3d 1156, 1159–60 (4th Cir.1997). “Under [ ] § 1983, a plaintiff must establish
three elements to state a cause of action: (1) the deprivation of a right secured by the Constitution
or a federal statute; (2) by a person; (3) acting under color of state law.” Id.
1. Section 1983 Claim for False Arrest
Defendants CMPD officers argue that they had probable cause to arrest Plaintiff. They
also assert that they are entitled to qualified immunity.
There is no cause of action for false arrest under § 1983 where the arresting officer had
probable cause. Street v. Surdyka, 492 F.2d 368, 372–73 (4th Cir. 1974). A police officer may
arrest an individual without a warrant if he “has probable cause to believe that an individual has
committed even a very minor criminal offence in his presence[.]” Ross v. Early, 746 F.3d 546, 561
(4th Cir. 2014) (quoting Atwater v. Lago Vista, 532 U.S. 318, 354 (2001)). Probable cause exists
when the facts and circumstances known to the officer are sufficient to warrant an objectively
reasonable person in believing “that the suspect has committed, is committing, or is about to
commit an offense.” Id. (quoting Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992)). “Whether
probable cause exists in a particular situation ... always turns on two factors in combination: the
suspect's conduct as shown to the officer, and the contours of the offense thought to be committed
by that conduct.” Id. (quoting Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001)).
The Fourth Circuit Court has held:
The qualified immunity defense “‘protects government officials from civil damages
in a § 1983 action insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Bland v. Roberts, 730 F.3d 368, 391 (4th Cir.2013) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 250 (4th Cir.1999)). Consequently, “[i]n determining
whether a defendant is entitled to qualified immunity, [we] must decide (1) whether
the defendant has violated a constitutional right of the plaintiff and (2) whether that
right was clearly established at the time of the alleged misconduct.” Id. (citing
Walker v. Prince George's Cnty., 575 F.3d 426, 429 (4th Cir.2009)).
Ross, 746 F.3d at 560.
Defendants’ actions are assessed from the perspective of an objectively reasonable officer
charged with knowledge of established law. The Defendants’ motives are irrelevant to the
qualified immunity inquiry. Anderson v. Creighton, 438 U.S. 635, 641 (1987). This assessment
also depends upon the reasonableness of the officer’s perceptions, and not those of the Plaintiff or
bystanders. Gooden v. Howard Co., 954 F.2d 960, 965 (4th Cir. 1992). The Supreme Court has
held that qualified immunity “applies regardless of whether the government official's error is a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and citation omitted).
Qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Put differently, qualified immunity
“protects law enforcement officers from ‘bad guesses in gray areas' and ensures that they are liable
only ‘for transgressing bright lines.’” Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005)
(quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).
The Supreme Court has “recognized that it is inevitable that law enforcement officials will
in some cases reasonably but mistakenly conclude that probable cause is present” and “those
officials-like other officials who act in ways they reasonably believe to be lawful-should not be
held personally liable.” Anderson, 483 U.S. at 641. “If every mistaken seizure were to subject
police officers to personal liability under § 1983, those same officers would come to realize that
the safe and cautious course was always to take no action. The purposes of immunity are not served
by a police force intent on escaping liability to the cumulative detriment of those duties which
communities depend upon such officers to perform.” Gooden, 954 F.2d at 966-67.
Applying these legal principles to the facts taken in the light most favorable to the Plaintiff,
Defendant officers’ and Defendant Conner’s Motions for Summary Judgment on Plaintiff's § 1983
false arrest claim must be granted.
The officers had probable cause to arrest Plaintiff on both
occasions. The officers and Investigator Conner observed Plaintiff carrying a firearm in plain view
at the club parking lot and knew he was not registered with the Board. Plaintiff’s arrest in February
2011 took place under nearly identical circumstances to his October 14, 2011 arrest. Judge
Whitney found that the second arrest was supported by probable cause. Since Defendants had
probable cause to arrest Plaintiff, there was no constitutional violation.
Even assuming arguendo that Plaintiff established that application of the Act violated his
constitutional rights, he has not shown the existence of a “right [that] was clearly established at
the time of the alleged misconduct.” Ross, 746 F.3d at 560. Plaintiff has not cited any authority
establishing that the Act could not lawfully be applied under the circumstances present here, and
the Court is aware of none. Accordingly, Defendants are entitled to qualified immunity.
For these reasons, the Court grants Defendants’ Motions for Summary Judgment on
Plaintiff’s § 1983 claim for false arrest.
2. Section 1983 Claim for Unreasonable Search and Seizure
The Fourth Amendment protects individuals against “unreasonable searches and seizures.”
U.S. Const., amend. IV. Warrantless searches “are per se unreasonable under the Fourth
Amendment-subject only to a few specifically established and well-delineated exceptions.” United
States v. Bush, 404 F.3d 263, 275 (4th Cir.2005) (quoting Mincey v. Arizona, 437 U.S. 385, 390
(1978)). One of the well-recognized exceptions to the warrant requirement is a search incident to
a lawful arrest. See United States v. Currence, 446 F.3d 554, 556 (4th Cir.2006). Under this
exception, law enforcement officers may search “the arrestee's person and the area within his
immediate control” following a lawful arrest. Id. (quoting Chimel v. California, 395 U.S. 752,
763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)).
Having concluded that Defendants lawfully arrested Plaintiff on both occasions, their
subsequent search of his person and seizure of weapons were also lawful. And for the same reasons
discussed above, Defendants are also entitled to qualified immunity on this claim as well.
Accordingly, Defendants’ Motions for Summary Judgment on Plaintiff’s § 1983 search and seizure
claim are granted.
3. Section 1983 Claim against City of Charlotte
Municipal liability exists generally under § 1983 when actions taken pursuant to an official
policy or custom cause the deprivation of a constitutional right. See Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 690–92 (1978) (interpreting the language of § 1983). However, the court need not
make this determination in the absence of any constitutional violation. See City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986). Therefore, “[i]f a person has suffered no constitutional injury at
the hands of the individual police officer, the fact that the departmental regulations might have
authorized the use of constitutionally excessive force is quite beside the point.” Id.
Since the Court has determined that Plaintiff's constitutional rights were not violated by his
arrest and the subsequent search and seizure, it is unnecessary to scrutinize the City’s policies or
customs. Consequently, the Court grants Defendant City of Charlotte’s Motion for Summary
Judgment on Plaintiff’s § 1983 claims.
4. Section 1983 Claim for Violation of Due Process and Equal Protection
Plaintiff seeks declaratory and injunctive relief claiming that Defendants’ application of
the Act violated his rights under the Due Process and Equal Protection clauses of the Fourteenth
However, the Complaint contains only general allegations that the Act is “too
ambiguous.” Complaint at paragraphs 313-315 (document #1). Despite being giving an additional
opportunity to address this issue in a supplemental brief, Plaintiff has failed to articulate how
application of the Act violated his rights. Moreover, the North Carolina appellate courts have
considered the Act and found it to be constitutional. Shipman v. North Carolina Private Protective
Services Board, 346 S.E. 2d 295 (N.C. App.), petition for disc. rev. den., 349 S.E. 2d 866 (N.C.
1986). Noting that the petitioner was challenging “the entire Act,” the Court of Appeals held that
the statute served a legitimate purpose of state government and was rationally related to achieving
that purpose. Id. 346 S.E. 2d at 445. For these reasons, Plaintiff’s Motion for Summary Judgment
as to his Fourteenth Amendment claims is denied and Defendants’ Motions for Summary
Judgment as to those same claims is granted.
State Law Claims
1. State Rico Violations
Plaintiff concedes that he is unable to forecast evidence as to the “for pecuniary gain”
element of this claim. Consequently, the Court will grant Defendants’ Motion for Summary
Judgment as to this claim.
2. Remaining State Law Claims
As noted above, the nexus of Plaintiff’s claims is that misapplication of the Act resulted in
his false arrest on two occasions and the subsequent unlawful search and seizure.
evidence in the light most favorable to Plaintiff, the Court finds that the arrests, search, and seizure
were supported by probable cause and that the statute is constitutional. For the same reasons,
Plaintiff’s state law claims for false arrest, intentional infliction of emotional distress, negligent
infliction of emotional distress, malicious prosecution, abuse of process, trespass to chattels, and
conversion fail as well. Accordingly, Defendants’ Motions for Summary Judgment are granted
as to those claims.
NOW, THEREFORE, IT IS HEREBY ORDERED:
Defendants’ City of Charlotte and Rodney Monroe, in his official capacity as the
Police Chief for the Charlotte Mecklenburg Police Department (“CMPD”),
“Motion for Summary Judgment,” Doc. 38, is GRANTED.
Defendants’ Michael Ford, William Murray, Eric Mickley, Jason Kerl and Gilberto
a/k/a Gil Narvaez, individually and in their official capacity as law enforcement
officers with the CMPD, “Motion for Summary Judgment,” Doc. 39, is
“Defendant Sarah Conner’s Motion to Dismiss and/or Summary Judgment…,”
Doc. 41, is GRANTED.
“Defendant North Carolina Private Protective Services Board’s Motion to Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(6) and Motion for Summary Judgment…,” Doc. 44,
“Plaintiff’s Motion for Partial Summary Judgment,” Doc. 43, is DENIED.
The Complaint is DISMISSED WITH PREJUDICE.
The Clerk is directed to send copies of this Memorandum and Order to counsel for
Signed: May 27, 2015
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