Lineberger v. Lowe et al

Filing 80

ORDER granting in part and denying in part Dfts' Second 67 Motion for Summary Judgment. Signed by District Judge Richard Voorhees on 10/11/2016. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:14-CV-00137-RLV-DCK
ALVIN LINEBERGER,
Plaintiff,
v.

TOU-BER YANG, AND JAMIE LOWE,

Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on Defendants’ Second Motion for
Summary Judgment. (Doc. 67). Having been fully briefed and considered, the Defendants’
motion is now ripe for disposition. For the reasons stated below, Defendants’ Second Motion for
Summary Judgment (Doc. 67) is GRANTED IN PART and DENIED IN PART.

I.

BACKGROUND
This case concerns an interaction between Officer Tou-Ber Yang (“Yang”) and Officer

Jamie Lowe (“Lowe”) of the Newton Police Department and Plaintiff Alvin Lineberger. On
February 7, 2013, the Maiden Police Department responded to a call for assistance regarding a
domestic violence incident. (Doc. 54-3 at 3). When Maiden Police arrived, the victim identified
H.P., Lineberger’s twenty-five-year-old son, as the assailant and identified Lineberger’s residence

1

as a place where police might locate H.P.1 Id.; (Doc. 57-5). At the request of the Maiden Police
Department, Yang and Lowe went to Lineberger’s residence to try and locate H.P.. (Doc. 57-5).
Once at Lineberger’s residence, Lowe knocked on Lineberger’s front door. (Doc. 59 at 3).
Lineberger, who was in the shower when Lowe knocked, answered the door wearing only a small
towel. Id.; (Doc. 54-5 at 25-26). Lineberger, forty-four years of age at the time of the interaction,
informed Lowe that H.P. was not in his residence and did not live at his residence. (Doc. 54-5 at
5, 22). Lineberger then attempted to close the door to terminate his interaction with Yang and
Lowe; however, Lowe stuck his foot across the threshold of Lineberger’s front door, preventing
Lineberger from closing the door. Id. at 22.
According to Lineberger, Lowe refused to remove his foot from the threshold of the door
unless Lineberger consented to Yang and Lowe searching his residence. Id. at 22-23. Yang then
stated that he would arrest Lineberger if Lineberger did not consent to the search and that Yang
and Lowe would think up a charge to support the arrest. Id. When Lineberger declined to consent
to the search, Yang and Lowe demanded that Lineberger produce identification. Id. at 23.
Lineberger declined to comply with Yang and Lowe’s demand for identification even as Yang and
Lowe continued to threaten him with arrest. Id. With Lowe’s foot still in the threshold of
Lineberger’s front door and Yang and Lowe continuing to demand identification, Lineberger told
Yang and Lowe that they knew who he was and stated, allegedly in sarcasm, that he was “Jesse
James.”2 Id.

It is unclear from the record whether H.P. is Lineberger’s biological son or the son of his girlfriend. (See Doc. 54-5
at 5). This discrepancy, however, is not material to the disposition of Defendants’ Second Motion for Summary
Judgment.
2
The Court takes judicial notice that “Jesse James” was an infamous outlaw linked to multiple bank robberies, train
robberies, and murders in the mid to late 1800s.
1

2

Lineberger then called 911, informing the 911 operator that Yang and Lowe were trying to
force their way into his residence. (Audio Recording 2013000214(1) at 0:06-0:15); (see also Doc.
54-5 at 24). Lineberger requested “assistance in terminating the encounter with [Yang and Lowe]”
by asking the 911 operator to dispatch a detective or the sheriff to his residence. (Doc. 59 at 5);
(Audio Recording 2013000214(1) at 0:17-0:30). When asked by the 911 operator to provide his
name and address, Lineberger complied with the request. (Audio Recording 2013000214(1) at
0:23-0:38). The 911 operator initially advised Lineberger that he would dispatch an officer to
Lineberger’s address but then informed Lineberger that only Yang and Lowe could assist him. Id.
at 0:40-1:12.
Apparent to Lineberger that Yang and Lowe would not depart unless he produced
identification, Lineberger acceded to the request and retreated into his residence to retrieve his
identification. (Doc. 54-5 at 26; Doc. 59 at 5). Yang and Lowe fully entered Lineberger’s
residence, allegedly to keep Lineberger in their visual line of sight, while Lineberger retrieved his
identification. (Doc. 54-7 at 45-47). When Lineberger returned to the front of his residence with
his identification, he found Yang and Lowe inside of his residence with their Tasers drawn. (Doc.
54-5 at 27; Doc. 59 at 5-6). Lineberger requested that Yang and Lowe leave his residence. (Doc.
54-5 at 31; Doc. 59 at 6). Yang and Lowe refused to comply with Lineberger’s request, instead
demanding that Lineberger hand over his identification within five seconds. (Doc. 54-5 at 26-31;
Doc. 59 at 6). When Lineberger did not immediately remove his identification from his wallet,
Lowe “snatched” the wallet and identification. (Doc. 54-5 at 26, 28-29). Yang and Lowe then
arrested Lineberger on charges including obstruction and delay of an investigation and providing
false information. (Doc. 54-5 at 26-31; Doc. 54-7 at 50-51, 54; Doc. 54-9 at 39). Lineberger was
additionally charged with misuse of 911. (Doc. 54-8 at 3).

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Lineberger was transported to jail wearing only the towel he had wrapped around his body
when he answered Lowe’s knock. (Doc. 54-5 at 29). At the jail, Lineberger’s towel fell off, fully
exposing Lineberger’s naked body to the magistrate judge, other arrestees, and jail employees. Id.
at 33. Lineberger remained in jail for a day until he could post bond on the aforementioned
charges. Id. 35-36. At trial, the aforementioned charges against Lineberger were dismissed,
partially because Yang and Lowe lacked a warrant. Id. at 37-38; (Doc. 54-8 at 57-59).
Lineberger filed a second amended complaint raising: (1) claims under 42 U.S.C. § 1983
(2012) for Fourth, Fifth, and Fourteenth Amendment violations based on Yang and Lowe’s search
of his residence, his arrest, and his imprisonment (Causes of Action One through Three); (2) a
claim under 42 U.S.C. § 1985(3) (2012) alleging that Yang and Lowe conspired to commit the
civil rights violations identified in his § 1983 claims (Cause of Action Four); and (3) state law
claims for trespass by public officer, negligence, gross negligence, negligent infliction of
emotional distress, intentional infliction of emotional distress, and malicious prosecution (Causes
of Action Five through Ten). (Doc. 59 at 8-16). Lineberger seeks compensatory and punitive
damages, as well as costs, expenses, and attorney’s fees. Id. at 18. With respect to Yang and
Lowe, this Court granted Defendants’ partial motion to dismiss as to Lineberger’s 42 U.S.C.
§ 1985(3) claim, his negligent infliction of emotional distress and intentional infliction of
emotional distress claims, and the portions of his § 1983 claims alleging Fifth Amendment and
standalone Fourteenth Amendment violations.

(Doc. 78).

Defendants move for summary

judgment, arguing that (1) Lineberger’s § 1983 claims are barred by the doctrine of qualified
immunity; (2) they are entitled to public official immunity on Lineberger’s state law claims that
survived the motion to dismiss; (3) Lineberger cannot demonstrate the existence of a policy or
custom for purposes of his § 1983 claims against Yang and Lowe in their official capacities; and

4

(4) Lineberger cannot demonstrate that Yang and Lowe’s conduct rose to a level to support
punitive damages.3 (Doc. 67-1 at 7-19, 22-25).
II.

DISCUSSION
1. Standard of Review
Summary judgment is appropriate only “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.” Fed. R.
Civ. P. 56(a) (2010). In order to support or oppose a summary judgment motion, a party is required
to cite to “materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, . . . admissions, interrogatory answers, or other materials;”
or show “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.” Fed. R. Civ. P.
56(c)(1); Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (applying former version of Rule 56);
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (same). A genuine dispute exists only if “the
evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson,
477 U.S. at 248. In conducting its analysis, the Court views the evidence in the light most favorable
to the non-moving party. Celotex Corp., 477 U.S. at 325.
2. Qualified Immunity
A.

Standard

Qualified immunity protects government officials from monetary damages in a suit brought
under 42 U.S.C. § 1983, so long as their conduct does not violate any clearly established
constitutional or statutory rights of which a reasonable person would have been aware. Harlow v.

3

As Defendants filed this motion for summary judgment on the same day they filed their motion to dismiss, the motion
for summary judgment contains several additional arguments rendered moot by this Court granting Defendants’
motion to dismiss. (See Doc. 67-1 at 17-18, 20-21).

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Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, the Supreme Court identified the two
inquiries governing the qualified immunity analysis: (1) “whether a constitutional right would have
been violated on the facts alleged” and (2) whether, assuming a constitutional right was violated,
the right was “clearly established.” 533 U.S. 194, 200 (2001).
As to the second inquiry, whether an official may be held personally liable for an
unconstitutional act “generally turns on the objective legal reasonableness of the action, assessed
in light of the legal rules that were clearly established at the time it was taken.” Messerschmidt v.
Millender, 132 S. Ct. 1235, 1245 (2012) (internal quotation marks omitted). “A Government
official’s conduct violates clearly established law when, at the time of the challenged conduct, the
contours of a right are sufficiently clear that every reasonable official would have understood that
what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (internal
quotation marks and brackets omitted). A case directly on point is not required, “but existing
precedent must have placed the statutory or constitutional question beyond debate.” Id. “[I]n gray
areas, where the law is unsettled or murky, qualified immunity affords protection to an officer who
takes an action that is not clearly forbidden—even if the action is later deemed wrongful.” Rogers
v. Pendelton, 249 F.3d 279, 286 (4th Cir. 2001). “The deference given to the judgments of law
enforcement officers acting in good faith is particularly important in cases involving law
enforcement officials investigating serious crimes.” Id. (internal quotation marks omitted). In
sum, the qualified immunity doctrine protects “all but the plainly incompetent and those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
B.

Entry into Lineberger Residence

Basic to the rights afforded by the Fourth Amendment is the protection against
unreasonable searches of an individual’s home. “‘At the very core’ of the Fourth Amendment

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‘stands the right of a man to retreat into his own home and there be free from unreasonable
governmental intrusion.’” Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v.
United States, 365 U.S. 505, 511 (1961)). Absent consent or exigent circumstances, “the entry
into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment
unless done pursuant to a warrant.” Steagald v. United States, 451 U.S. 204, 211 (1981). The
protection afforded to the home under the Fourth Amendment, extends to “the land immediately
surrounding and associated with the home,” known as the “curtilage,” where “intimate activity
associated with the ‘sanctity of a man’s home and the privacies of life’” occur. Oliver v. United
States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)); see
also Rogers, 249 F.3d at 287 (“[T]he curtilage is entitled to the same level of Fourth Amendment
protection extended to the home, so that, as with the home, probable cause, and not reasonable
suspicion, is the appropriate standard for searches of the curtilage.”).
The Fourth Amendment, however, does not restrict police from, in the course of an
investigation, engaging in conduct that a member of the public could lawfully engage in. See
California v. Greenwood, 486 U.S. 35 (1988) (finding no Fourth Amendment violation where
police searched the contents of garbage can that was deposited on curb under theory that public at
large could have accessed the garbage can). Applying this concept, police officers, who are
without a warrant, may approach a home and knock on the door in hopes of speaking with the
home’s occupant just like any member of the public might. Kentucky v. King, 563 U.S. 452, 46970 (2011). As police are limited to the authority of a member of the public when conducting a
“knock-and-talk,” the occupant is under no obligation to answer the door and speak with the
officers and if the occupant opts not to answer the door, “the investigation will have reached a
conspicuously low point.” Id. at 470. Furthermore, “if an occupant chooses to open the door and

7

speak with the officers, the occupant need not allow the officers to enter the premises and may
refuse to answer any questions at any time.” Id. (emphasis added). Upon the occupant instructing
the officers to leave the property, the officers continued presence on the property “exceed[s] the
legitimate reasons for their entry” and reasonable suspicion that a crime has been committed is
insufficient to permit the officers to search the curtilage or the home. Rogers, 249 F.3d at 288-90
(holding that contemplated search of curtilage based on reasonable suspicion of underage drinking
would have been unreasonable under Fourth Amendment where occupant, in course of “knock and
talk,” instructed officers to leave his property).
Turning to the first inquiry of the qualified immunity analysis and viewing the facts in the
light most favorable to Lineberger, it is apparent that Yang and Lowe violated Lineberger’s Fourth
Amendment right to be free from unreasonable searches. Based on the belief that H.P. might be
in Lineberger’s residence, Yang and Lowe approached the residence and commenced a knock and
talk. Lineberger answered the door, informed Yang and Lowe that H.P. neither lived at nor was
in the residence, and then expressed a desire to terminate the encounter and not answer any further
questions. Rather than permitting Lineberger to close his door and terminate the encounter as
Lineberger had the right to do, Lowe, by placing his foot in the threshold of the door, entered
Lineberger’s residence, or at least the curtilage of the residence. Cf. United States v. Jones, 132
S. Ct. 945 (2012) (finding that trespass onto private property can serve as basis for finding illegal
search). Over Lineberger’s continued protest to Yang and Lowe’s presence on his property, Lowe
refused to remove his foot from the threshold of the door. Furthermore, Yang and Lowe’s full
entry into Lineberger’s residence when Lineberger retrieved his identification, while arguably
justified by concerns of officer safety at that juncture, was a product of Yang and Lowe continuing
their interaction with Lineberger in violation of Lineberger’s Fourth Amendment rights. Cf. King,

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563 U.S. at 469-71 (distinguishing situations where police created exigency is the result of “actual
or threatened violation of the Fourth Amendment” from situations where exigency is the result of
lawful police conduct). Further, as nothing suggests that Lowe removed his foot from the threshold
of the door and exited the residence prior to both officers fully entering the residence, Yang and
Lowe’s full entry into Lineberger’s residence was a continuation of their presence in Lineberger’s
residence, rather than a separate entry. Accordingly, viewing the facts in the light most favorable
to Lineberger, Lowe’s placement of his foot in the threshold of the door constituted a violation of
Lineberger’s Fourth Amendment rights and Yang and Lowe’s full entry into the residence
constituted an escalation of that violation.
Turning to the second inquiry of the qualified immunity analysis, the contours of the Fourth
Amendment both with respect to an officer’s ability to enter a home, or the curtilage of the home,
and with respect to an officer’s limited authority when conducting a “knock and talk” were well
defined by the United States Supreme Court and the United States Court of Appeals for the Fourth
Circuit prior to Yang and Lowe arriving at Lineberger’s residence. See King, 563 U.S. at 469-70;
Oliver, 466 U.S. at 180; Steagald, 451 U.S. at 211; see also Rogers, 249 F.3d at 287-90.4 Yang

In Rogers, officers received a noise complaint in relation to a party and arrived at Rogers’ residence with the intent
of searching the curtilage of Rogers’ home for evidence of the noise violation and underage drinking. When they
arrived at Rogers’ residence, they observed Rogers drinking alcohol in front of his house, and allegedly observed
individuals who appeared under the age of twenty-one “scurrying” away. Rogers, 249 F.3d at 284, 286. Officers
spoke with Rogers and Rogers informed them that he owned the property and that they were to leave his property. Id.
at 284. Rather than terminate the encounter, the officers remained on the property and arrested Rogers for public
drunkenness and impeding an officer. Id. at 284, 286. The Rogers Court held that the search the officers intended to
perform would have violated Rogers’ Fourth Amendment rights because it would have constituted a conversion of the
officers’ “limited license to do what any citizen may do—approach the house and speak to the inhabitant or owner—
into a license to search for ‘evidence’ and speak to various guests at a party after speaking to Rogers and being asked
to leave.” Id. at 294. The Rogers Court also held that reasonable suspicion is insufficient to support an investigatory
search of the curtilage because “probable cause plus either a warrant or exigent circumstances” is required.” Id. at
288-90. Here, Yang and Lowe lawfully entered Lineberger’s property, spoke with Lineberger, and then entered the
curtilage of Lineberger’s home in an effort to search for H.P. and/or to gather information about Lineberger’s identity
over Lineberger’s request that Yang and Lowe leave his property. In other words, Yang and Lowe, seemingly without
a warrant, performed a search akin to that which the officers in Rogers intended to perform and that the Fourth Circuit
concluded would have been unconstitutional.
4

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and Lowe contend that while their interaction with Lineberger commenced as a knock and talk, it
turned into an investigatory detention based on reasonable suspicion or probable cause and that no
binding case law holds that it is unconstitutional to conduct an investigatory detention in a home.5
(Doc. 67-1 at 10-12). In support of this argument, Yang and Lowe assert that Lineberger’s refusal
to provide his name created reasonable suspicion that Lineberger was H.P.
Yang and Lowe’s argument suffers from three shortcomings. As an initial matter, Rogers
clearly established that “as with the home, probable cause, and not reasonable suspicion, is the
appropriate standard for searches of the curtilage.” 249 F.3d at 287. Thus, probable cause, not
merely reasonable suspicion, was needed before Lowe could continue the knock and talk over
Lineberger’s objection and place his foot in, at least, the curtilage of Lineberger’s home.
Separately, crediting Lineberger’s account of the interaction, Lowe placed his boot in the
threshold of Lineberger’s door before Lowe asked Lineberger for his name or identification.6
Thus, if the interaction transitioned from a “knock and talk” to an investigatory detention, the
alleged basis for Yang and Lowe’s reasonable suspicion in support of the investigatory detention
occurred after Lowe continued the interaction over Lineberger’s objection. 7 Finally, although

5

Yang and Lowe cite Moore v. Pederson, 806 F.3d 1036 (11th Cir. 2015), for the proposition that no binding precedent
exists foreclosing an officer’s ability to lawfully conduct an investigatory detention based on reasonable suspicion in
a home. Although Moore involved an interaction that commenced as a “knock and talk” and ended with Moore being
arrested, within his home, for failing to provide identification, nothing in Moore suggests that Moore attempted to
terminate the interaction or otherwise instruct the officers to leave his residence. See 806 F.3d at 1040-41; see also
Moore v. Seminole Cty., Fla., 2014 WL 4278744, at *1-2 (M.D. Fla. Aug, 29, 2014). Thus, while then-existent case
law may or may not have clearly prohibited an investigatory detention within a home absent the homeowner’s
objection, Lineberger’s claim presents the added allegation that he did object to Yang and Lowe’s presence and did
attempt to terminate the encounter.
6
Defendants assert that Lineberger testified that he tried to close his door after refusing to provide his name. (Doc.
67-1 at 17). Contrary to Defendants’ representation of Lineberger’s deposition testimony, Lineberger clearly stated
that he tried to close his door before Lowe asked for his name and identification.
7
To the extent Yang and Lowe suggest that Lineberger providing the name “Jesse James” gave them reasonable
suspicion to believe Lineberger committed the offense of providing a false name, Yang and Lowe’s argument suffers
from the same temporal problem in that Lowe exceeded his authority in violation of Lineberger’s Fourth Amendment
rights before Lineberger stated that he was “Jesse James.” Furthermore, Yang and Lowe’s argument is dependent on
the resolution of a genuine issue of material fact—whether Lineberger said he was “Jesse James” with such sarcasm
that no reasonable officer could have thought that Lineberger actually and willfully represented that he was “Jesse
James.” See e.g. N.C. Gen. Stat. § 14-225(a).

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probable cause plus a warrant or an exigent circumstance satisfies the Fourth Amendment
reasonableness threshold for searching the curtilage of a home, it is not apparent that Yang and
Lowe had a warrant and the exigent circumstance Yang and Lowe rely on for entering Lineberger’s
residence arose well after Lowe placed his foot in the threshold of the door.
Even, however, putting the temporal shortcomings in Yang and Lowe’s argument aside, it
is not apparent, at this stage of litigation, that an officer in Yang or Lowe’s position could have
objectively believed that there was probable cause to conclude that Lineberger was H.P. First,
Lineberger is nineteen years older than H.P., and in his deposition, Lowe testified that he received
a description of H.P. before approaching Lineberger’s residence. (Doc. 54-7 at 24). Second, were
a jury to credit Lineberger’s deposition testimony, the jury could conclude that Lowe was familiar
with Lineberger and with H.P. from a prior encounter with both individuals such that a reasonable
officer in Lowe’s position and with a description of H.P. could not have objectively believed that
Lineberger was H.P. Accordingly, even if a finding of probable cause alone was sufficient to
shield Lowe from liability for his entry into the threshold of Lineberger’s door, absent resolution
of the aforementioned issues of material fact—whether a warrant was issued, the extent of the
description of H.P. Lowe received, whether Lowe knew Lineberger or H.P., whether Lineberger
and H.P. are sufficiently similar in appearance to allow a reasonable officer to mistake Lineberger
for H.P.—it is not possible to conclude that a reasonable officer could have believed he had
probable cause to think that Lineberger was H.P. Therefore, Lineberger’s claim under § 1983 that
Yang and Lowe violated his Fourth Amendment right to be free from unreasonable searches
survives Yang and Lowe’s assertion of qualified immunity. 8

Lineberger’s first cause of action under § 1983 alleges that, in addition to an unreasonable search of his residence,
Yang and Lowe unreasonably seized him. (Doc. 59 at 9). This allegation is apart from his claim of false arrest. (See
Doc. 59 at 9). The parties do not explicitly brief the issue of when Yang and Lowe seized Lineberger. Implicitly, it
would appear that Yang and Lowe concede that a seizure occurred when the “knock and talk” transformed into an
8

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C.

Arrest and Imprisonment of Lineberger

Lineberger was arrested on charges of (1) Resisting, Delaying, or Obstructing a Public
Officer, in violation of N.C. Gen. Stat. § 14-223, (2) Making a False Report to a Law Enforcement
Officer, in violation of N.C. Gen. Stat. § 14-225(a), and (3) Misuse of the 911 System, in violation
of N.C. Gen. Stat. § 14-111.4.9 As a result of these charges, Lineberger spent one day in jail before
posting bond. (Doc. 54-5 at 35-36). Yang and Lowe contend that they are entitled to qualified
immunity on Lineberger’s claims for false arrest and false imprisonment because probable cause
supported the arrest or, at a minimum, an officer in their position could have reasonably believed
that probable cause supported the arrest. (Doc. 67-1 at 15-17). In response, Lineberger contends
that no reasonable officer could conclude that Lineberger’s actions provided probable cause on
any of the three charges. (Doc. 71 at 16-19).
The Fourth Amendment protects a person from unreasonable seizures and, as a general
rule, a seizure in the form of an arrest is only reasonable if it is based on probable cause. Rogers,
249 F.3d at 290. “The long-prevailing standard of probable cause protects citizens from rash and
unreasonable interferences with privacy and from unfounded charges of crime, while giving fair
leeway for enforcing the law in the community's protection.” Maryland v. Pringle, 540 U.S. 366,
370 (2003) (internal quotation marks omitted). “Probable cause is defined in terms of facts and
circumstances sufficient to warrant a prudent man in believing that the suspect had committed or

investigatory detention. Cf. Terry v. Ohio, 392 U.S. 1 (1968). The same issues with Yang and Lowe’s reasonable
suspicion for entering the threshold of the doorway to Lineberger’s residence would apply to the initial seizure of
Lineberger during the alleged investigatory detention such that Lineberger may proceed with his § 1983 claim as to
that seizure.
9
There is a discrepancy in the record regarding whether Lowe, as the arresting officer, charged Lineberger with Misuse
of the 911 System or whether the magistrate judge added this charge. (See Doc. 54-8 at 1, 3; see also Doc. 54-7 at
50-54; Doc. 54-9 at 39). For purposes of evaluating Yang and Lowe’s qualified immunity defense, this discrepancy
is immaterial because the relevant inquiry is whether a reasonable officer, presented with the facts known to Yang and
Lowe at the time of the arrest, could have objectively believed that there was probable cause to arrest Lineberger for
an offense. See Devenpeck v. Alford, 543 U.S. 146, 153-54 (2004).

12

was committing an offense.” Rogers, 249 F.3d at 290 (internal quotation marks and brackets
omitted). The probable cause determination
turns on two factors in combination: the suspect’s conduct as known to the officer,
and the contours of the offense thought to be committed by that conduct. Probable
cause therefore could be lacking in a given case, and an arrestee's right violated,
either because of an arresting officer's insufficient factual knowledge, or legal
misunderstanding, or both.
Id. (internal quotation marks omitted). Where, as here, the offenses potentially supporting
Lineberger’s arrest are state offenses, the Court must look to North Carolina law to determine what
conduct is proscribed by each statute at issue. Id. at 291 (“Because the probable cause inquiry is
informed by the contours of the offense at issue, we look to [state] cases to determine the
reasonable scope of [the statute involved].” (internal quotation marks omitted)).
Before analyzing whether probable cause supported Lineberger’s arrest, the Court
acknowledges that Lineberger’s arrest occurred subsequent to Yang and Lowe’s continuation of
their encounter with Lineberger and that but for Yang and Lowe continuing the encounter, no
arrest would have occurred. While the continuation of the encounter might be sufficient to deem
Lineberger’s arrest improper within the context of a criminal case, the “fruit of the poisonous tree”
doctrine does not apply in the civil setting and a § 1983 litigant must demonstrate that the officers’
actions were both the but for and proximate cause of the constitutional violation. Townes v. City
of N.Y., 176 F.3d 138, 145-47, 149 (2d Cir. 1999). Accordingly, to determine if Yang and Lowe
are entitled to qualified immunity on Lineberger’s false arrest and false imprisonment claims, the
Court must determine whether, at the time of the arrest, a reasonable officer in Yang and Lowe’s
position could have objectively believed that there was probable cause to arrest Lineberger on any
of the aforementioned charges. See id. at 149 (holding that unlawful seizure and search of vehicle
that plaintiff was in gave rise to cognizable § 1983 claims based on seizure and search of vehicle

13

but that plaintiff could not proceed with false arrest claim where search of vehicle yielded firearms
and provided officers probable cause for arrest).
Finding the probable cause analysis with respect to the offense of Misuse of the 911 System
dispositive on the issue of qualified immunity, the Court will proceed directly to its analysis under
that statute and forego analyzing whether probable cause supported Lineberger’s arrest for
Resisting, Delaying, or Obstructing a Public Officer or for Making a False Report to a Law
Enforcement Officer and whether a reasonable officer could have believed there was probable
cause to support those charges. Under N.C. Gen. Stat § 14-111.4, “[i]t is unlawful for an individual
who is not seeking public safety assistance . . . to access or attempt to access the 911 system for a
purpose other than an emergency communication.” Enacted in 2007, N.C. Gen. Stat. § 14-111.4
is a relatively new statute that the North Carolina Court of Appeals interpreted for the first time in
2015 and that the Supreme Court of North Carolina is yet to interpret. See Jensen v. Jessamy, 776
S.E.2d 364, 2015 WL 4448129 (N.C. Ct. App.), cert. denied, 781 S.E.2d 291 (2015) (unpublished).
Accordingly, at the time of Lineberger’s arrest, an officer called on to determine whether there
was probable cause of a violation of N.C. Gen. Stat. § 14-111.4 would have been guided only by
the language of the statute.10
In considering whether an individual violated N.C. Gen. Stat. § 14-111.4, an officer would
need to first determine whether there was probable cause to conclude that the individual contacted
911 for a reason other than seeking “public safety assistance.” If, and only if, the officer concluded
that the individual called 911 for a reason other than seeking “public safety assistance,” the officer
would then consider whether the individual accessed the 911 system “for a purpose other than an

10

In analyzing a qualified immunity defense, a district court may skip over the question of whether a constitutional
violation occurred and proceed directly to the question of whether the constitutional right was “clearly established”
at the time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 237-42 (2009).

14

emergency communication.” The nature and circumstance surrounding Lineberger’s call to 911
were atypical of the reasons an individual would be justified in calling 911. The audio recording
of Lineberger’s 911 call clearly demonstrates that Lineberger asked the 911 dispatcher to send out
a detective or the sheriff to assist him in dealing with Yang and Lowe. (Audio Recording
2013000214(1) at 0:06-0:15). However, Lineberger made his request in the context of alleging
that Yang and Lowe were harassing him, that his civil rights were being violated, and that he
wanted to speak with someone other than Yang and Lowe. Lineberger’s complaint alleges that he
“called 911 for assistance in terminating the encounter with [Yang and Lowe].” (Doc. 59 at 5).
Furthermore, Lineberger’s own deposition testimony establishes that he placed the 911 before
Yang and Lowe fully entered his residence and before they pulled out their Tasers. (Doc. 54-5 at
27). Thus, while Lineberger sought the assistance of a public safety officer, a reasonable officer
could have viewed his call to 911 as being based on something other than a threat to his health or
safety or a threat of damage to his property beyond the incidental damage that accompanies a
trespass by an individual known to the property owner.
Confirming the potentially ambiguous nature of the help Lineberger sought is the 911
dispatcher’s decision not to send a unit to Lineberger’s residence and his instruction that
Lineberger needed to talk to Yang and Lowe. The conclusion that a 911 caller’s mere request for
police assistance does not prevent an officer from reasonably concluding that there is probable
cause to believe that a caller violated N.C. Gen. Stat. § 14-111.4 is also supported by now-existent
case law. See Jensen v. Jessamy, 776 S.E.2d 364, 2015 WL 4448129 at *4-5 (finding that
reasonable officer could believe he had probable cause for warrant where 911 caller repeatedly
requested police assistance regarding neighbor violating civil no-contact order but police found no
evidence of violation). Accordingly, although situations may arise where a citizen unquestionably

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seeks “public safety assistance” to address ongoing actions of a police officer, a reasonable officer,
acting in the absence of any case law interpreting and defining the contours of N.C. Gen. Stat.
§ 14-111.4, could have concluded that there was probable cause to believe that Lineberger called
911 for a reason other than seeking “public safety assistance.”
The preceding probable cause analysis relevant to the “public safety assistance” element
has significant bearing on the probable cause analysis relevant to the “emergency communication”
element. On one hand, Lineberger could be viewed as placing the call in an effort to seek
protection from the ongoing efforts of Yang and Lowe to enter his residence. On the other hand,
Lineberger could be viewed as placing the call to report police misconduct in an effort to
discourage Yang and Lowe from continuing to demand that he produce identification and let them
search his house. Thus, a reasonable officer could have objectively concluded that Lineberger was
accessing the 911 system for a purpose other than an emergency communication, primarily to
terminate his encounter with Yang and Lowe. The potential and theoretical reasonableness of
Yang and Lowe’s probable cause conclusion is further supported by the magistrate judge’s postarrest determination to hold Lineberger over on the charge of misuse of 911. Cf. Torchinsky v.
Siwinski, 942 F.2d 257, 261-62 (4th Cir. 1991) (discussing judicial officers pre-arrest probable
cause determination as part of qualified immunity analysis).

Therefore, although arresting

Lineberger for misusing 911 may constitute an example of very poor charging discretion in a
situation where the presence of additional officers could have prevented the encounter from
escalating further, it cannot be said that it would have been clear to an officer in Yang and Lowe’s
position that probable cause did not exist to support the charge. Accordingly, Lineberger’s claims
for false arrest and false imprisonment do not survive Yang and Lowe’s assertion of qualified
immunity.

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3. State Law Claims & Public Official Immunity
The doctrine of public official immunity specifically applies to torts sounding in trespass,
malicious prosecution, and false arrest. Campbell v. Anderson, 576 S.E.2d 726, 730 (N.C. Ct.
App. 2003). Under North Carolina law, police officers, as public officials, are not subject to
“individual liability for negligence in the performance of their governmental or discretionary
duties.” Id. Instead, individual liability only arises when the officer performs an act “with
corruption or malice.” Id. An act is performed with malice where the act is “(1) done wantonly,
(2) contrary to the actor’s duty, and (3) intended to be injurious to another.” Wilcox v. City of
Asheville, 730 S.E.2d 226, 230 (N.C. Ct. App. 2012) (citing In re Grad v. Kaasa, 321 S.E.2d 888,
890 (N.C. 1984)). In applying North Carolina’s public official immunity doctrine, the United
States Court of Appeals for the Fourth Circuit has held that “[a]n officer acts with malice when he
‘does that which a man of reasonable intelligence would know to be contrary to his duty,’ i.e.,
when he violates a clearly established right.” Cooper v. Sheehan, 735 F.3d 153, 160 (4th Cir.
2013) (quoting Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003)). In this respect, the analysis
underlying public officer immunity mirrors the qualified immunity analysis. See id.; see also
Bailey, 349 F.3d at 742 (holding that denial of qualified immunity defense within context of
alleged Fourth Amendment violation acts as basis for denying public officer immunity).
Applying this understanding of the public officer immunity doctrine, the portion of
Lineberger’s state claim for trespass by public officer related to Yang and Lowe’s search of his
residence survives Yang and Lowe’s assertion of public officer immunity. 11 Meanwhile, Yang
and Lowe are entitled to summary judgment on Lineberger’s claims for negligence, gross
negligence, and malicious prosecution because those claims only raise allegations with respect to

Lineberger’s assertion that Yang and Lowe threatened to make up a charge and take him to jail if he did not let
them search his home also supports a jury’s ability to find malice. (See Doc. 54-5 at 22-23; Doc. 59 at 16-21).
11

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Lineberger’s arrest, which this Court determined Yang and Lowe could have believed was
supported by probable cause. Yang and Lowe are also entitled to summary judgment on the
portion of Lineberger’s claim for trespass by public officer related to his arrest and imprisonment.
4. Official Capacity Claims
In addition to his claims against Yang and Lowe in their individual capacities, Lineberger
brings claims against Yang and Lowe in their official capacities on the theory that the Newton
Police Department adopted a custom or policy permitting unconstitutional entries into residences
and unauthorized demands for identification, including by failing to provide adequate training
regarding how to conduct a “knock and talk.” (Doc. 59 at 7-8). Defendants contend that
Lineberger fails to proffer sufficient evidence to proceed with his policy-based claim. Doc. 67-1
at 22-24).
For purposes of § 1983, suits against governmental officials in their official capacities are
“treated as suits against the municipality.” Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d
451, 469 (4th Cir. 2013) (internal quotation marks and brackets omitted). A municipality is not
liable for the acts of its employees through a theory of respondeat superior. Id. at 470. Instead, a
municipality only faces liability “when its ‘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 [plaintiff’s]
injury.’” Id. (quoting Monell v. Dep’t of Social Servs. Of the City of N.Y., 436 U.S. 658, 694
(1978). Liability can attach to the municipality for a policy or custom in any of the following four
ways:
(1) through an express policy, such as a written ordinance or regulation; (2) through
the decisions of a person with final policymaking authority; (3) through an
omission, such as a failure to properly train officers, that “manifest [s] deliberate
indifference to the rights of citizens”; or (4) through a practice that is so “persistent
and widespread” as to constitute a “custom or usage with the force of law.”

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Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 218
(4th Cir. 1999)). Where a plaintiff relies on a failure to train theory to establish a policy, the
standard of deliberate indifference is only met where “it can be shown that policymakers were
aware of, and acquiesced in, a pattern of constitutional violations.” Id. at 474. Similarly, where a
plaintiff relies on the existence of a “custom or usage” to demonstrate a policy, the plaintiff must
demonstrate that “a pattern of comparable practices has become actually or constructively known
to responsible policymakers.” Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987). Finally,
when trying to impose liability on a municipality based on the existence of a policy, the plaintiff
must demonstrate that the policy actually caused the constitutional violation in the case at hand.
See City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989).
Lineberger relies on the affidavit of Timothy W. Hayes, who was a Support Services
Captain in February of 2013 and is the current Deputy Chief of Police for the Newton Police
Department, to establish the existence of policies permitting unreasonable entries into homes and
unlawful requests for identification. (Doc. 71 at 24); (see also Doc. 54-2 at 1). In his affidavit,
Hayes attests that Yang and Lowe’s actions “did not constitute wrongdoing.” (Doc. 54-2).
Lineberger contends that Hayes’ ratification of Yang and Lowe’s unlawful conduct constitutes a
policy. (Doc. 71 at 24). Assuming that Hayes is a policymaker, Lineberger is unable to rely on
Hayes’ affidavit to establish the existence of a policy at the time of the interaction because Hayes’
provided the affidavit more than three years after the interaction occurred. (See Doc. 54-2 at 5).
Thus, even if Hayes’ affidavit and ratification of Yang and Lowe’s actions created a policy, the
policy was created well after the interaction at issue and could not have caused the alleged
violation. Furthermore, Hayes’ approval of Yang and Lowe’s conduct, while potentially erroneous
with respect to their entry into Lineberger’s residence, constitutes the approval of a single incident

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and nothing in the affidavit suggests a pattern of other unconstitutional entries into residences by
officers of the Newton Police Department.
Lineberger also relies on the depositions of Yang and Lowe to assert that the Newton Police
Department provided inadequate training for its officers and that officers of the Newton Police
Department “engaged in widespread practices of constitutional violations.” (Doc. 71 at 25).
Regarding the customs of officers of the Newton Police Department when requesting
identification, Lowe stated that in most situations people do not need to provide identification but
that an officer may ask for identification at any time. (Doc. 54-7 at 39, 42). Lowe also stated that
the majority of instances involving requests for identification surround vehicle stops but that
officers also “ask” for identification when executing warrants. Id. at 41. Finally, Lowe stated that
in a “couple” of instances he has seen officers require the production of identification when
performing an investigatory stop. Id. at 39-40. Yang stated that it was common for officers to ask
for identification when executing a warrant; however, Yang was not asked and did not indicate
whether or not he had observed other officers require the production of identification in like
situations. (See Doc. 54-9 at 33-34).
Lineberger focuses exclusively on Lowe’s statement about seeing a couple of officers
require identification when performing an investigatory stop. In so doing, Lineberger fails to
appreciate the statement within the context of Lowe’s other responses, responses that represent an
accurate statement of the law. See In re D.B., 714 S.E.2d 522, 526 (N.C. Ct. App. 2011) (noting
that, although North Carolina has not enacted a statute requiring an individual to produce
identification, officers may still ask for identification). Yang’s sole response about being able to
ask for identification when serving a warrant is also consistent with North Carolina law on the
production of identification. See id. Totally apart from the contextual issues that Lineberger’s

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position suffers from, reading Lowe’s statement about observing officers demand identification in
a couple of instances in isolation would not provide a sufficient basis to find a policy, by way of
custom, because a “couple” of instances does not amount to a pattern of constitutional violations
that would place policymakers on notice.
Regarding Defendants’ statements about training and voluntary encounters with citizens,
Yang initially stated that he did not receive training on the matter but that “common sense” dictated
that an individual could terminate a voluntary encounter. (Doc. 54-9 at 18). Upon further
questioning, which clarified the initial question, Yang stated that the Newton Police Department
did provide training regarding a citizen’s ability to terminate a voluntary encounter. Id. at 19.
Yang also stated that he received training about home entries and that an entry was only
permissible based on consent or probable cause. Id. at 17. Lowe indicated that he received training
on recent United States Supreme Court and North Carolina Supreme Court cases but that he had
not received training specifically about whether he could place his foot in the door of residence in
an effort to continue an interaction with a citizen. (Doc. 54-9 at 16-17, 34).
Contrary to Lineberger’s contention, Yang and Lowe’s testimony demonstrates that the
Newton Police Department was not deliberatively indifferent when providing training regarding
when an officer may enter a home. The fact that Lowe failed to comprehend that placing a foot in
the threshold of a door is an entry and that Yang and Lowe arguably failed to follow their training
that entry into a home is only permissible based on consent or probable cause, does not permit for
the finding that there mistaken application of their training is imputable to the municipality. See
Harris, 489 U.S. at 390-91 (holding that failure to train claim not viable based on an officer’s
shortcomings with the training material or where “injury or accident could have been avoided if
an officer had had better or more training, sufficient to equip him to avoid the particular injury-

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causing conduct”). Accordingly, Lineberger has not proffered sufficient evidence of a policy to
impute liability on the municipality for Yang and Lowe’s actions and Defendants’ Second Motion
for Summary Judgment is granted with respect to all claims against Yang and Lowe in their official
capacities.
5. Punitive Damages
Within the context of a § 1983 action, punitive damages are available “for conduct that
involves ‘reckless or callous indifference to the federally protected rights of others,’ as well as for
conduct motivated by evil intent.” Cooper v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987) (quoting
Smith v. Wade, 461 U.S. 30, 56 (1983)). This standard for permitting punitive damages is
equivalent to the standard for finding liability and awarding compensatory damages within the
context of a constitutional violation. Id.; see also Smith, 461 U.S. at 51 (allowing claim for punitive
damages in context of Eighth Amendment deliberate indifference claim); Morris v. Edmonds, 2008
WL 2891014, at *9 (E.D.N.C. July 25, 2008) (order adopting M&R and allowing claim for
punitive damages to proceed in context of alleged Fourth Amendment violation). Accordingly,
Lineberger’s claim for punitive damages on his § 1983 claim based on Yang and Lowe’s entry
into his home and their initial investigatory detention of him survives Defendants’ Second Motion
for Summary Judgment.
Turning next to the availability of punitive damages on the portion of Lineberger’s state
law claim for trespass by public officer that survives summary judgment, North Carolina law
permits punitive damages where the defendants’ wrongful action resulting in injury to the plaintiff
was accompanied by fraud, malice, or willful or wanton conduct. N.C. Gen. Stat. § 1D-15. As
previously noted, an act is performed with malice where the act is “(1) done wantonly, (2) contrary
to the actor’s duty, and (3) intended to be injurious to another.” Wilcox, 730 S.E.2d at 289.

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Furthermore, the standard for malice is met by showing that a public officer violates a clearly
established constitutional right. Cooper, 735 F.3d at 160. Finally, Lineberger’s assertion that
Yang and Lowe threatened to make up a charge and take him to jail if he did not consent to them
searching the home provides sufficient basis to conclude that, beyond merely violating a clearly
established right, Yang and Lowe acted wantonly and with an intent to injure if he did not succumb
to their request for consent. (See Doc. 54-5 at 22-23; Doc. 59 at 16-21). Accordingly, Lineberger’s
claim for punitive damages on the surviving portion of his trespass by public officer claim survives
Defendants’ Second Motion for Summary Judgment.
III.

DECRETAL

IT IS, THEREFORE, ORDERED THAT
(1)

Defendants’ Second Motion for Summary Judgment (Doc. 67) is GRANTED IN

PART and DENIED IN PART.

Signed: October 11, 2016

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