Davis v. Wal-Mart Stores East L.P. et al

Filing 208

MEMORANDUM OPINION Cross Motions for Summary Judgment. See Opinion for details. Signed by District Judge Henry E. Hudson on 05/16/2016. (ccol, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

EVE M. DAVIS,

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Plaintiff,
V.
JAMES V. HARNEY, JR.,
Defendant.

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Civil Action No. 3:15CV387-HEH

MEMORANDUM OPINION

(Cross Motions for Summary Judgment)

This civil rights action brought under 42 U.S.C. § 1983 evolved from Plaintiffs

attempt to fill a prescription at a Wal-Mart pharmacy in Spotsylvania County, Virginia.
Unfortunately, because the Virginia prescription data base reflected what the pharmacist

thought to be a pattern of atypical activity. Plaintiff Eve Davis was arrested for
prescription fraud. She was denied bail and detained in the local detention center for
sixteen days. The charges were subsequently dismissed and this lawsuit followed.
By Memorandum Opinion issued on April 13, 2016 (ECF No. 168), this Court
dismissed all claims against Defendants Brenda Greer (the Wal-Mart pharmacist) and
Wal-Mart Stores East, L.P. Presently before the Court are Cross Motions for Summary

Judgment addressing the single claim against Defendant James V. Hamey, Jr., a

Spotsylvania County Deputy Sheriff("Deputy Hamey").' Deputy Hamey contends that
Plaintiffs arrest was predicated on probable cause or, altematively, that he is entitled to

' Deputy Harney is named as a defendant only inCount XI of the Amended Complaint, which
alleges a violation of 42 U.S.C. § 1983 for an unlawful arrest.

qualified immunity because the constitutional standard for arrest under the circumstances
at hand is ill-defined.

Plaintiff also seeks summaryjudgment, maintaining that Deputy Hamey clearly

lacked probable cause to arrestPlaintiff for prescription fraud and that his pre-arrest
investigation was superficial at best. Plaintiff argues that because Deputy Hamey's

actions violated a clearly-established constitutional right, he is not entitled to qualified
immunity.

Both parties have filed memoranda supporting their respective motion for
summaryjudgment accompanied by relevant exhibits. This Court heard oral argument
on May 9,2016.

In reviewing cross motions for summary judgment, a district court must examine
each motion separately on its own merits "to determine whether either of the parties
deserves judgment as a matter of law." Philip Morris Inc. v. Harshbarger, 122 F.3d 58,
62 n.4 (1st Cir. 1997) (internal citations omitted). Furthermore, when considering each
individual motion, the court must take care to "resolve all factual disputes and any

competing, rational inferences in the light most favorable" to the party opposing the
motion. Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st. Cir. 1996);
see also Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). "Summary judgment
is appropriate only if the record shows 'there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.'" Norfolk S. Ry. Co. v.
City ofAlexandria, 608 F.3d 150, 156 (4th Cir. 2010) (citing Fed. R. Civ. P. 56(c)).

This Court's initial task is to parse out disputed peripheral facts and focus on the
facts and circumstances that guided the actions of Deputy Hamey at the time of
Plaintiffs arrest. According to the Amended Complaint, the operative circumstances
distill as follows.

On Saturday morning October 5,2013, Deputy Hamey of the Spotsylvania County
Sheriffs Office was on routine patrol wearing his uniform. At approximately 11:14 a.m.

that day. Deputy Hamey received a communication from his dispatcher on the computer-

aided dispatch system ("CAD") in his vehicle. The communication was as follows:
"PRESCRIPTION FRAUD - CALLER TRYING TO FILL DUPLICATE

PRESCRIPTION - ALREADY HAD IT FILLED AT CVS - PHARMACIST

CHECKED THEIR SYSTEM - HAS BEEN DOING THIS SINCE APRIL." (Am.

Compl. 60, ECF No. 93.) The dispatcher also advised Deputy Harney of the identity of
the individual presenting the prescription, that the prescription was for a narcotic, and
that she could be called back into the store if the deputy so requested. {Id. at

49-52.)

Deputy Harney then advised the dispatcher by radio that he was in route to the Wal-Mart
and that he would wait until he arrived at that location before the pharmacist was again

contacted. Deputy Harney subsequently advised the dispatcher that he had "just
confirmed with the pharmacist it's going to be multiples throughout the county, CVS and
WalMart, but I'll take care of it like we talked about." {Id. at

86-87.) The Plaintiff

denies that the pharmacist confirmed that Plaintiff was involved in multiple instances of
prescription fraud throughout the County. {Id. at ^ 88.) Deputy Harney also revealed to

the dispatcher that "the name they just put in my call now is for this lady ... one of the
one's that I've been looking for." (Jd. at ^ 67.)

Prior to his arrival at the Wal-Mart store, he contacted the pharmacist by

telephone. During the conversation, the pharmacist advised Deputy Hamey that the

pharmacy needed more time to verifythe prescription with the presenter's prescribing
physician. Dr. Syed Ahmed ("Dr. Ahmed"). (Jd. at

71-72.) During that conversation,

the pharmacist did not tell Deputy Hamey that the prescription was fraudulent, but
indicated that the Prescription Monitoring Program ("PMP"), a computerized data base,

was raising some "red flags" and "maybewe should check it out." {Id. at

73-75.)

Deputy Harney relied upon the information provided by the pharmacist and undertook no
independent investigation of the PMP data. {Id. at ^ 77.)
The Amended Complaint also alleges that during this conversation. Deputy

Hamey asked the pharmacist to call Plaintiffback into the Wal-Mart store, to stall her at
the pharmacy, to have someone meet him upon his arrival at a designated location, and to
assist him in arresting Plaintiff by identifying her at the pharmacy counter. {Id.

79-81,

83-85.) After meeting a pharmacy technician,^ Deputy Hamey entered the Wal-Mart and
proceeded to the pharmacy counter. Plaintiff, without prompting, had returned to the
pharmacy to inquire about her prescription and was waiting in line. {Id.

101-102.)

Deputy Hamey stepped into the pharmacy line behind Plaintiff and engaged her in casual

^Deputy Hamey informed the pharmacy technician that he had a large "stack" of paperwork on
the Plaintiff. {Id. at 96.) This turned out to be incorrect; he had no such prior knowledge. {Id.
at 1198.)

conversation. The pharmacist then announced Plaintiffs name loudly and gestured in
Deputy Harney's direction. {Id. Tfl] 113-114.)

At this point, Deputy Hamey advised Plaintiff she was under arrest, handcuffed
her and escorted her to the loss prevention room where he interviewed her concerning the

prescription. {Id. ^^115-116.) According to the Amended Complaint, prior to taking

Plaintiff into custody. Deputy Harney did not confer with the pharmacist in person,
examine the prescription, speak with Plaintiff, nor talk to the prescribing physician. He
also failed to personally review information concerning Plaintiffs activities on the PMP

computerized history. {Id. ^ 120.) None of these assertions in the Amended Complaint
appear to be in dispute.

Following his interview with Plaintiff, Deputy Harney transported her to the

magistrate's office where a warrant was issued for violating Virginia Code § 18.2258.1(A), namely attempting to obtain Adderall by fraud. {Id. T1128.) Plaintiff was

denied bond and remanded to jail where she remained for approximately sixteen days.
On October 7,2013, two days after Plaintiffs arrest, the Wal-Mart pharmacy staff
was advised by Dr. Ahmed that Plaintiffs prescription was valid and that he approved of
it being filled at the time it was presented. {Id. f 136.) This information was not
conveyed by the pharmacy to the sheriffs office but was presented to the
Commonwealth's Attorney handling the case approximately two weeks later. (Am.

^Apparently Plaintiff had other pending felony charges at the time. However, the record fails to
reveal what consideration was given to that fact by the magistrate.

Compl., Ex. A at 86:1-11.) It does not appear that Wal-Mart personnel were aware that
Plaintiff remained in custody during that period.

On motion of the Commonwealth's Attorney, the charge against Plaintiff was
amended to attempted possession of a Schedule 11 controlled substance with intent to
distribute, in violation of Virginia Code § 18.2-248. A preliminary hearing on the

amended charge was held on March 25,2014 in the Spotsylvania County General District
Court. After finding the requisite probable cause, the General District Court Judge
certified the charge to the grand jury. Plaintiffwas subsequently indicted on two felony
charges. All charges against Plaintiff were later dismissed.

When considering cross motions for summary Judgment filed pursuant to Fed. R.
Civ. P. 56(c), the district court must review each motion separately to determine "whether

the evidence presents a sufficient disagreement to require submission to aJury or whether
it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty

Lobby, Inc., All U.S. 242,251-52 (1986). Moreover, in considering each motion for
summaryJudgment, the court must view the facts in the light most favorable to the nonmoving party. Id. at 255. It is well-established that summaryJudgment is appropriate "if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a Judgment as a matter of law." Id. at 247 (citing Fed.
R. Civ. P. 56(c)). However, "the 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." Id, at 24748.

As earlier noted, each party identifies perimetric facts with which they disagree.''
Consequently, this Court's analysis will be cabined to only the specific information

known to Deputy Harney at the time of Plaintiffs arrest, along with reasonable
inferences drawn from his training and experience. Pivotal to both motions for summary
judgment is whether Deputy Harney's actions violated the Plaintiffs constitutional rights
under the Fourth Amendment or, alternatively, whether he is entitled to qualified
immunity. Even if the Amended Complaint states a valid Fourth Amendment claim,

recovery is barred when the conduct in question does not violate a "clearly established"
constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Central to Plaintiffs Motion for Summary Judgment is her argument that not only

did Deputy Harney act without probable cause, but that no reasonably trained law
enforcement officer would believe that there were adequate grounds for her arrest.

Plaintiffs evidence can be broadly characterized as having three significant components.

First, Plaintiff highlights the comments of a circuit court judge in Spotsylvania County
accompanying his suppression of post-arrest statements. Judge James Ellis, a respectable
jurist, in commenting on the evidence then before him, concluded that there was no

probable cause for the Plaintiffs arrest and that her constitutional rights were violated by
In her Memorandum in Opposition to Defendant James V. Hamey's Motion for Summary
Judgment(EOF No. 184), Plaintiff disagrees with several facts relied upon by the Defendant, but
offers little evidence to the contrary. In other instances. Plaintiff disputes the evidentiary weight
it should be accorded. In its final analysis, the Court will attempt to parse out and rely only on
those acts which appear to be undisputed.

her precipitous arrest. While Judge Ellis opined that the circumstances may have been
sufficient for a Terry stop, they fell far short of what would be necessary to constitute

probable cause for an arrest. Second, Plaintiff alleges that Deputy Hamey failed to
conduct an adequate investigation prior to placing her under arrest. She suggests that the

underlying investigation conducted by Deputy Harney was inconsistent with the protocol
established by the Virginia State Police for similar investigations. Third, Plaintiff
maintains that the information known to the Deputy at the time of her arrest did not

square with the elements of fraud articulated by trial courts and the Court of Appeals of
Virginia.

In Plaintiffs view, the teachings of the Virginia Court of Appeals in Williams v.

Commonwealth^ 14 Va. App. 666, 418 S.E.2d 346 (1992) should have been instructive.^
In Williams, the evidence proved that someone falsely representing himself to be a
physician called a pharmacy and fraudulently prescribed a drug for a person named
Sidney Johnson. When the defendant arrived at the pharmacy, he was confronted by a
Special Agent of the Virginia State Police. Williams stated that he was picking up the
prescription for another person. Williams was arrested and later convicted of prescription
fraud. The Court of Appeals reversed the defendant's conviction for fraudulently
obtaining a controlled substance in violation of Va. Code § 18.2-258.1. The court

concluded that "[n]o evidence proved that Williams made the telephone call or knew that
such a telephone call had been made." Id. at 668. While Williams is instructive in

^Within the Virginia court hierarchy, the Virginia Court of Appeals is an intermediate appellate
court below the Virginia Supreme Court.
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illuminating the necessity for proof of scienter beyond a reasonable doubt in prescription
fraud cases, it sheds only faint light on whether the defendant's arrest contravened clearly
established law.

While all of Plaintiffs points have arguable relevance, as stressed above, the focal

point of the analysis, particularly in assessing entitlement to qualified immunity, is
whether Deputy Harney's conduct violated clearly-established federal statutory or
constitutional rights of which a reasonably trained police officer would have known.

Harlow v. Fitzgerald, 457 U.S. at 818-19. As the United States Court of Appeals for the
Fourth Circuit restated in Raub v. Campbell, a "qualified immunity analysis typically

involves two inquiries: (1) whether the plaintiff has established the violation of a

constitutional right, and (2) whether that right was clearly established at the time of the
alleged violation." 785 F.3d 876, 881 (2015) (citing West v. Murphy, 771 F.3d 209,213
(4th Cir. 2014)).

Application of the analytical framework for qualified immunity necessarily begins
by parsing from the record at hand the specific information known to Deputy Harney at
the time of Plaintiffs arrest. To ensure the reliability of the evidence weighed in the

analysis, the Court will draw largely from Deputy Harney's testimony during his
deposition, which was tested in the crucible of cross-examination. Portions of the

transcript of Deputy Harney's deposition taken on November 3, 2015 were appended to
each motion for summaryjudgment and to Plaintiffs Opposition to Motion for Summary
Judgment and subsequent Reply.

Deputy Harney provided the following information at this deposition:
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(1)

He had served ten years as a deputy sheriff with the Spotsylvania County

Sheriffs Office. (Def.'s Mem. Support Mot. Summ. J., Ex. D at 11:8-12, EOF No. 1654.)

(2)

Prior to October 5, 2013, he had been dispatched on close to ICQ

prescription fraud calls. {Id. at 13:14-22.) He described his prior training and experience
in prescription fraud investigations as "[w]orking with multiple pharmacies and
pharmacists in determining and how to read PMPs and how the DEA as well as

pharmacies and doctors are supposed to log and record narcotic prescriptions and not

supposed to schedule them out 30 days in advance." {Id. at 40:25-41:5.)^
(3)

On the day in question, the CAD system in his vehicle described the

pertinent call as a possible prescription fraud at Wal-Mart. The CAD communication
was as follows: "PRESCRIPTION FRAUD - CALLER TRYING TO FILL
DUPLICATE PRESCRIPTION - ALREADY HAD IT FILLED AT CVS -

PHARMACIST CHECKED THEIR SYSTEM - HAS BEEN DOING THIS SINCE

APRIL." (Am. Compl.

(4)

59-60.)

Deputy Harney placed a telephone call to the pharmacist to confirm the

information he had received on his CAD. {Id. at

71-75; Pl.'s Mem. Support Mot.

Summ. J., Ex. C at 37:9-11, ECF No. 177.) The pharmacist reiterated that it was the

^Because Deputy Hamey was unable to specifically recount details of his prior involvement in
prescription fraud calls during discovery, Plaintiff suggests that such background information
should be discounted. Deputy Harney indicated in his Objection to Interrogatories that he did
not rely on any information gleaned during these investigations in formulating probable cause to
arrest Plaintiff. (Pl.'s Mem. in Opp'n to Def.'s Mot. Summ. J., Ex. P, ECF No. 184-16.)
However, as counsel for Plaintiff acknowledged during oral argument, the prior experience was
an element in the analytical framework used to evaluate the circumstances presented at the time
of Plaintiff s arrest.
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same prescription that had been filled at the CVS in Chatham four days prior, (Def.'s
Mem. Support Mot. Summ. J., Ex. D at 37:9-11, 51, 56.)

(5)

Based upon his ten years of training and involvement in similar

investigations many times before, it led him to believe that "there was possibly a
fraudulent transaction going on." (Id. at 37:14-19.)

(6)

The pharmacist also advised Deputy Hamey that Plaintiff had been flagged

through the PMP and she had been "doing the same transactions since April of that year."
{Id. at 38:9-13.)

(7)

Deputy Harney suspected that a crimewas being committed. "For a

controlled substance, through my training and experience, it's supposed to be logged in

the DBA logbook, and you're only supposed to be given one prescription at a time for it."
{Id. at 39:19-23.)

(8)

Deputy Harney testified that he did not personally review the PMP

information before arresting the Plaintiff. He indicated that only the pharmacist was

privy to such information. He therefore relied on the information provided by the
pharmacist, (/rf. at 39:24-40:13.)

(9)

Of significance to Deputy Hamey was the fact that Plaintiffs name had

been flagged in the PMP system. {Id. at 41:21-24.)

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(10)

Deputy Harney did not personally review the prescription or any other

documents before arresting Plaintiff, but again relied on information imparted by the

pharmacist.' (/rf. at 40:4-13.)
(11)

Deputy Harney explained that he did not discuss the allegedly fraudulent

prescription with the Plaintiff before her arrest. (PL's Mem. Support Mot. Summ. J., Ex.
Cat 44:23-45:1.)

(12)

Prior to arresting the Plaintiff, Deputy Harney was unsure whether the

prescription was a photocopy. {Jd. at 51:21-23.)

(13)

Deputy Harney testified that he believed Plaintiffs name had surfaced in

connection with a previous drug case, but she was neither a suspect nor in any way

implicated in criminal activity. (Def.'s Mem. Support Mot. Summ. J., Ex. D at 69:6-25.)
(14)

Deputy Harney was previously involved in several other cases involving

the passing of multiple Schedule I and Schedule II narcotic prescriptions. His initial
suspicion that Plaintiff may have been involved in such activity was based on "the shear
fact that the totality of the circumstances involved in this case were similar to multiple
other cases that I was investigating within the county." {Id. at 101:1-102:3.)

(15)

Deputy Harney testified that he believed at the time he initially took

Plaintiff into custody, she was merely being detained and not arrested. She was a

possible suspect. (PL's Mem. Support Mot. Summ. J., Ex. C at 62:9-24.)

' Deputy Harney attempted to contact the physician who issued the prescription prior to
transporting Plaintiff to the magistrate's office. (PL's Mem. Support Mot. Summ. J., Ex. C at
45.)
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Plaintiff draws the Court's attention to portions of the preliminary hearing

transcript (PL's Mem. Support Mot. Summ. J., Ex. B) and the pharmacist Brenda Greer's
("Greer") deposition testimony (PL's Mem. Support Mot. Summ. J., Ex. H) to argue the

existence of a genuine dispute of material fact. The alleged dispute, though inconsistent
with Plaintiffs own description of facts, focuses on (1) whether or not the pharmacist and

Deputy Harney spoke on the phone before he arrived at Wal-Mart on October 5, 2013,
and (2) whether or not the pharmacist confirmed the information in the CAD entry

received by Deputy Hamey concerning "red flags" in the computer system. Deputy

Hamey portrays Plaintiffs argument as illusory, an attempt to elevate innocent
misrecollection to the level of a genuine dispute of material fact.

In her Amended Complaint, Plaintiff herself asserts that Deputy Hamey contacted

Greer by telephone and that Greer indicated that Plaintiffs PMP history was "raising
some red flags." (Am. Compl. HI 71, 74.) In Deputy Harney's deposition, he states that
Greer "advised dispatch as well as me that the name had been flagged in the system, in
the PMP system." (PL's Mem. Support Summ. J., Ex. C at 41:21-24.) In Greer's

deposition, she indicated that she didn't remember the details of the conversation with
Deputy Harney, but did recall that while she did not go into details with him, she did
mention her concems after looking at the PMP as well as red flags or indicators. (PL's

Mem. Support Summ. J., Ex. H at 123:19-124:9.) Finally, during the communication

with his dispatcher on the day of the incident. Deputy Hamey says "I just confirmed with
the pharmacist [Greer] it's going to be multiples throughout the county." (Am. CompL,
Ex. E at 2.)
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To support her contention that these discrepancies constitute material disputes of
fact, Plaintiff directs the Court's attention to a portion of the pharmacist's testimony

during the preliminary hearing on March 24,2014, in the Spotsylvania County General
District Court. During her testimony at that hearing, Greer expressed some doubt over

the identity of the person she spoke with on the phone during her conversations on
October 5, 2013. She also demonstrated some confusion between her telephone call to

the sheriffs office dispatcher and her conversation with Deputy Harney. (Def.'s Mem.

Support Summ. J., Ex. C at 25:6-17.) Furthermore, during the preliminaryhearing, in
response to a paraphrased quote of the pharmacist concerning the red flags. Deputy
Hamey said "I don't believe she said that to me but she might have said that to the

dispatcher, but I don't recall that being said." (Pl.'s Mem in Opp'n to Def.'s Mot. Summ.
J., Ex. B at 37:14-20.) Lastly, Plaintiff notes that during her deposition, the pharmacist
stated that she only recalled talking to the deputy after Plaintiff was taken into custody.
Yet, when viewed in context of the record as a whole, this comment appears to pertain to

in person, as opposedto telephonic conversations. (Pl.'s Mem in Opp'n to Def.'s Mot.
Summ. J., Ex. F at 120:18-121:2; Def.'s Mem. Support Summ. J., Ex. E at 123:19124:24); See Scott v. Harris, 550 U.S. 372, 380 (2007).

Whether characterized as a true dispute of fact or an innocent failure of

recollection, these discrepancies fall short of the type of material controversy which

would foreclose summary judgment on the issue ofqualified immunity.® "When the
® Christovich v. Pierce, the U.S. Court of Appeals for the Fourth Circuit restated with approval
In
the enshrined language of the innocent misrecollection jury instruction. "An innocent
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moving party has carried its burden under Rule 56(c), its opponent must do more than

simply show that there is some metaphysical doubt as to the material facts." Id. at 380
(internal citations omitted).

Although the United States Supreme Court in Saucier v. Katz, 533 U.S. 194,201
(2001) mandated a two-facet inquiry for resolving government officials' qualified
immunity claims, this regimented approach was abolished in Pearson v. Callahan, 555
U.S. 223, 242 (2009). District courts may now address the two determinative questions,

(1) whether the plaintiff has established a violation of a constitutional right, and (2)
whether that right was "clearly established" at the time of the alleged violation, in the
"order... that will best facilitate the fair and efficient disposition of each case." Id. at

242 (internal citations omitted). The issue of whether Deputy Barney had probable cause

to arrest the Plaintiff is admittedly a close question.' But as the Supreme Court pointed
out in Butz V. Economou, qualified immunity covers "mere mistakes in judgment,
whether the mistake is one of fact or one of law." 438 U.S. 478, 507 (1978); see also

Pearson, 555 U.S. at 231. Reasonable minds can certainly differ in assessing probable

cause during the course of a rapidly evolving criminal investigation. Consequently, the
law does not require scientific precision.
misrecollection, just like the failure of recollection, is not an uncommon human experience. In
weighing the effect of any discrepancy, always consider whether it pertains to a matter of
importance or an unimportant detail and whether the discrepancy results from innocent error or
intentional falsehood." 59 Fed. Appx. 543,549 (4th Cir. 2003). Although this instruction

pertains to credibility determinations by a trier offact, the wisdom imparted is informative.
"A finding of probable cause is based upon a practical assessment of the totality of the
circumstances." United States v. Garcia, 848 F.2d 58,60 (4th Cir. 1998). It involves "factual
and practical considerations of everyday life on which reasonable and prudent men, not legal
technicians, act." Illinois v. Gates, 462 U.S. 213,231 (1983) (internal quotation marks and
citations omitted).
15

Qualified immunity operates to protect law enforcement and other government

officials from civil damages liability for alleged constitutional violations stemming from
their discretionary functions. Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). The

protection extends to "all but the plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 341 (1986). "Indeed, as we have emphasized
repeatedly, '[o]fficials are not liable for bad guesses in gray areas; they are liable for

transgressing bright lines.'" Raub, 785 F.3d at 881 (quotingS.P. v. CityofTakoma Park,
Md., 134 F.3d 260, 266 (4th Cir. 1998)). The Supreme Court has also cautioned that the

requisite inquiry "must be undertaken in light of the specific context of the case, not as a
broad general proposition." Mullenixv. Luna, 136 S. Ct. 305, 308 (2015) (internal
quotation marks and citations omitted). Such specificity is especially important in the
Fourth Amendment context where the court has recognized that "[i]t is sometimes

difficult for an officer to determine how the relevant legal doctrine ... will apply to the
factual situation the officer confronts." Id. (quoting Saucier, 533 U.S. at 205).

Qualified immunity does not turn on a retrospective comparison ofDeputy

Hamey's actions with a theoretical textbook investigation. See Abneyv. Coe, 493 F.3d
412, 419 (4th Cir. 2007). As Chief Judge Traxler commented in Doe v. Broderick:
Qualified immunity thus provides a 'safe-harbor' from tort damages for
police officers performing objectively reasonable actions in furtherance of
their duties. This 'safe-harbor' ensures that officers will not be liable for

"bad guesses in gray areas" but only for "transgressing bright lines." Of
course, officers are not afforded protection when they are "plainly
incompetent or ... knowingly violate the law." But, in 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. Simply put, qualified immunity exists to protect
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those officers who reasonably believe that their actions do not violate
federal law.

225 F.3d 440,453 (4th Cir. 2000) (emphasis in original) (citations omitted).
There may well be a plausible argument that Deputy Harney misinterpreted

portions of federal regulations governing the issuance of Schedule I and Schedule II
narcotic drugs. However, a mistake of law does not necessarily preclude entitlement to
qualified immunity. Moreover, even if the information of which Deputy Harney had

knowledge at the time of Plaintiffs arrest fell short of probable cause, he certainly had

reasonable suspicion that questionable activity was afoot.'" This belief was formed based
upon the information and impressions conveyed by a licensed pharmacist with access to
the PMP data base. Such reliance was certainly reasonable. Even the Spotsylvania

County Circuit Court judge, who concluded that Deputy Harney lacked probable cause,
acknowledged the presence of actionable suspicion.

Accordingly, the dispositive question is whether Deputy Hamey's actions violated
Plaintiffs clearly established statutory or constitutional rights of which a reasonable
person would have known. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). A right is

clearly established only if its contours are sufficiently clear that "a reasonable official
would understand that what he is doing violates that right." Creighton, 483 U.S. at 640.
"In other words, 'existing precedent must have placed a statutory or constitutional

"For probable cause to exist, there need only be enough evidence to warrant the belief of a
reasonable officer that an offense has been or is being committed; evidence sufficient to convict
is not required." Brown v. Gilmore, 278 F.3d 362,367 (4th Cir. 2002). Probable cause is "a
fluid concept that cannot be reduced to a neat set of rules." Bailey v. Kennedy, 349 F.3d 731,
739 (4th Cir. 2003) (internal quotation marks and citations omitted).
17

question beyond debate.'" Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting alKidd, 563 U.S. at 741). In canvassing the legal landscape for pertinent precedent

governing Deputy Harney's actions on October 5,2013, it is important to focus on the
critical question of whether he acted reasonably in light of the particular circumstances
that he faced. Additionally, the Supreme Court has "repeatedly told courts ... not to

define clearly established law at a high level of generality." Plumhoffv. Richard, 134 S.
Ct. 2012, 2023 (2014) (citations omitted).

After carefully mining Fourth Amendmentjurisprudence, including all cases cited
by both parties, this Court finds no clearly established authority placing the statutory or

constitutional question of the legality of Plaintiffs arrest beyond debate. The Court is
not convinced that Williams v. Commonwealth satisfies that standard. Even viewing the

evidence in the light most favorable to Plaintiff, as this Court must at this Juncture, the

totality of circumstances place the legality of Plaintiffs arrest squarely within the type of
gray area warranting qualified immunity.

Accordingly, Deputy Harney's Second Motion for Summary Judgment will be
granted, and Count XI of the Amended Complaint will be dismissed with prejudice.
Plaintiffs Motion for Summary Judgment will be denied.

An appropriate Order will accompany this Memorandum Opinion.

AIKO*-

/s/

Henry E. Hudson
United States District Judge

Date:JIa

Richmond, VK

T

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