Wake Forest Law Review

By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]

Conclusion

A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.

 

 

 

[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

American Humanist Association v. Maryland-National Capital Park

In this First Amendment case, the Fourth Circuit reversed the District Court’s ruling that a 40-foot tall Latin cross, established as a monument to fallen soldiers of World War I, did not violate the Establishment Clause. The entire panel found the plaintiffs had standing to challenge the monument’s constitutionality, and a majority found that the Lemon test was satisfied, with one judge dissenting. Consequently, the Fourth Circuit found the Latin cross unconstitutional and reversed.

Borzilleri v. Mosby

In this First Amendment case, the plaintiff was relieved of her position as Assistant State Attorney following the election of her new boss, the defendant-State Attorney. The plaintiff sought damages for violations of her freedom of association and speech. The Fourth Circuit, in upholding the District Court’s dismissal of all claims, found the defendant was entitled to qualified immunity under the theory of political patronage.

By M. Allie Clayton

On February 15, 2017, in the civil case of Crouse v. Town of Moncks Corner, the Fourth Circuit held that the police chief in Moncks Corner had qualified immunity against a claim by two police officers that they had been fired in retaliation for the exercise of their First Amendment rights.

Initial Facts

Appellants are two detectives, Richard Crouse and George Winningham, who were forced to resign from the Moncks Corner Police Department in October 2013.  The officers were forced to resign due to an interaction they had with Mr. Berkeley regarding Mr. Berkeley’s treatment at the hands of their supervising officer, Lieutenant Michael Roach.  Mr. Berkeley was arrested by Lt. Roach on October 4th. Prior to this incident, the relationship between Lt. Roach and the two detectives, Crouse and Winningham, had been deteriorating, with at least one of the detectives complaining to Captain Murray and Chief Caldwell. Prior to the incident with Mr. Berkeley, the complaints dealt with his management style, treatment of criminal suspects, and showing the officers inappropriate pictures, but did not include accusations of excessive use of force.

The Incident(s) with Mr. Berkeley

On October 4, 2013, James Berkeley was arrested by Lt. Roach. Reports of the arrest conflicted, even by those who were present. The actual facts of the arrest are inconsequential, however, because, on Monday, October 7, 2013, Crouse and Winningham heard a version of what happened. Another officer told Crouse and Winningham that he had heard that Lt. Roach had “kneed Mr. Berkeley in the groin.” Crouse and Winningham further investigated the arrest incident by reading the incident report and viewing pictures of the incident. Crouse talked to Capt. Murray about his concern.

The next day, October 8, 2013, Crouse and Winningham decided to speak to Berkeley. During lunch, the two officers went to Berkeley’s house. Although the two were wearing plain clothes and driving in an unmarked car, the officers’ badges and guns were visible. The two were sitting outside Berkeley’s home for a few minutes when they saw Berkeley and initiated a conversation with him. Crouse and Willingham encouraged Berkeley to file a complaint against Roach, telling him that other officers supported his version of the story. Winningham suggested Berkeley get an attorney. Crouse handed Berkeley a form that the police department had created for citizens to submit complaints about police officers. That form was freely available in the police station and had been handed out upon request by clerical staff and police officers.

Crouse and Winningham attempted to conceal the fact that they had met with Berkeley. Crouse made sure that his fingers never touched the form that was given to Berkeley. Crouse also instructed Berkeley to pretend that he did not recognize the officers if they saw each other later. The two originally agreed to tell anyone who asked that Berkeley had flagged them down, but later decided that they would tell the truth if they were questioned.

All of the countermeasures that the two men used to try to conceal their interaction with Berkeley were in vain, as Mr. Berkeley called Officer Winder that same day. Berkeley told Officer Winder that a Moncks Corner police officer had encouraged him to sue Roach and the Moncks Corner police department. Officer Winder informed Chief Caldwell, who responded by assigning Lieutenant Mark Fields to investigate both Berkeley’s claim of excessive use of force and Berkeley’s visit by the mystery officers.

The Investigation by Lt. Fields

The investigation by Lt. Fields did not require much in order to discover who the mysterious officers were. On October 15, 2013, Lt. Fields interviewed Mr. Berkeley, both about the arrest and about the mysterious officers. Based on the physical description of the two men, Fields immediately suspected Winningham and Crouse. Fields told Chief Caldwell of his suspicions and then proceeded to interview Crouse and Winningham separately. Both Crouse and Winningham admitted what they had done, both orally and in written statements. Fields told Chief Caldwell of the confession. Chief Caldwell then instructed Captain Murry to offer Crouse and Winningham an ultimatum: either the two could voluntarily resign or they would be terminated.

Procedural History

On February 19, 2014, Crouse and Winningham filed suit against Chief Caldwell and the Town of Moncks Corner. They raised three claims, two about their wages and a claim under 42 U.S.C. §1983. Regarding their §1983 claim, the detectives argued that their forced resignations were unconstitutional because they were in retaliation for the detective’s exercise of their First Amendment rights. The district court held that Chief Caldwell was entitled to qualified immunity regarding the First Amendment claim and granted summary judgment in favor of Chief Caldwell. The district court reasoned that the Chief was entitled to qualified immunity because, under Garcetti v. Ceballos, acting as a private citizen was a required element of a First Amendment retaliation claim, and the plaintiffs did not clearly establish that element. The two other claims were dismissed without prejudice, and the plaintiffs re-filed those claims as a separate action.

The Issue

The issue in this case is whether the chief of police had qualified immunity on the 42 U.S.C. The §1983 claim, and, if the chief did not have qualified immunity, whether the plaintiffs’ First Amendment rights were violated.

The Law

Employees do not surrender their First Amendment rights, even if they are employed by the government. The interests underlying the rule are both the employee’s interest in commenting upon matters of public concern and the community’s interest in hearing the opinion of the employees’ informed opinions. (See Pickering v. Bd. of Educ. & City of San Diego v. Roe). While the government employer might impose certain restraints on the employees’ speech.

Under McVey v. Stacy, the Fourth Circuit has established a three-prong test to determine whether an employee’s First Amendment rights were violated. The first two prongs of which are questions of law. The first prong involves two inquiries: (1) whether the speech was made as a citizen or pursuant to the employee’s duty & (2) whether the speech addressed a matter of the community’s interest or complaints regarding internal office affairs. If the speech was made as a private citizen about a matter of public concern, the inquiry can proceed to the second prong. The second prong requires the court to balance the interest of the employee in speaking and the interest of the government in providing efficient services, which requires a “particularized inquiry into the facts of a specific case.” Only if the employee’s interest outweighed the government employer’s interest, does the court proceed to the third prong—a determination whether the speech caused the disciplinary action.

Qualified Immunity

An employer is entitled to qualified immunity from those claims if either of the first two prongs cannot be resolved under clearly established law. Under Ashcroft v. al-Kidd, to defeat a claim for qualified immunity, a plaintiff must show two things: (1) that the official violated a constitutional or statutory right & (2) that the right was “clearly established at the time of the challenged conduct.” In order to demonstrate that the right was clearly established, there must be existing precedent that places the statutory or constitutional question beyond debate. The inquiry depends on the official’s perceptions when the incident occurred.

Holding and Reasoning

Chief Caldwell is entitled to qualified immunity because he reasonably could have viewed the actions of Crouse and Winningham as “surreptitious conduct designed to foment complaints and litigation against a supervisor with whom they did not get along. The Fourth Circuit further stated that the right is not clearly established in this case, and thus the Fourth Circuit did not even address whether or not the constitutional violation occurred.

The Fourth Circuit affirmed the district court which stated that Caldwell was entitled to qualified immunity because it was unclear whether Crouse and Winningham were speaking as citizens or as government employees.  The inquiry of whether Crouse and Winningham were speaking as citizens involves a practical inquiry into the employee’s daily professional activities to determine whether the task was within the scope of the employee’s duties.  The Court reasoned that under the facts to his case, Chief Caldwell was reasonably able to believe that Crouse and Winningham were speaking as employees of the police department.  Crouse and Winningham were identified as police officers and their speech resembled their daily duties as detectives.  According to the court, Chief Caldwell “is not liable for bad guesses in gray areas.” Because Chief Caldwell’s belief was reasonable, he is thus entitled to qualified immunity

Disposition

The Fourth Circuit affirmed the District Court of South Carolina’s decision that Chief Caldwell was entitled to qualified immunity. The Court affirmed that Chief Caldwell had a reasonable belief that Crouse and Winningham were acting as police officers and thus, have viewed his interest in maintaining discipline within the department as paramount, leading to a proper exercise of his discretion.

hospital

By Taylor Anderson

On January 11, 2016, the Fourth Circuit issued its published opinion regarding the civil case Estate of Ronald Armstrong v. Village of Pinehurst. The estate of Ronald H. Armstrong (“Appellant”), appealed the district court’s order granting summary judgment to various appellees, including the Village of Pinehurst, North Carolina (“Pinehurst”), Lieutenant Jerry McDonald (“Lieutenant McDonald”), Sergeant Tina Sheppard (“Sergeant Sheppard”), and Officer Arthur Gatling, Jr. (“Officer Gatling”). The Fourth Circuit affirmed the grant of summary judgment in appellees’ favor, holding that the appellees were entitled to qualified immunity in this case.

Police Intervene After Ronald H. Armstrong’s Hospital Incident

On April 23, 2011, Ronald H. Armstrong (“Armstrong”), who suffered from bipolar and paranoid schizophrenia, had been off of his prescribed medication for five days and was acting strange. His sister, Jinia Armstrong Lopez (“Lopez”) convinced Armstrong to accompany her to Moor Regional Hospital (“Hospital”) in Pinehurst, North Carolina. Armstrong willingly went to the Hospital and checked in, but during the course of evaluation, Armstrong became frightened and fled the emergency department. The examining doctor determined Armstrong to be a danger to himself and issued involuntary commitment papers to compel Armstrong’s return.

Lieutenant McDonald, Sergeant Sheppard, and Officer Gatling (collectively, “Appellees”) responded to this dispatch. When the Appellees arrived at Armstrong’s location, they engaged in conversation with Armstrong because the commitment order had not yet been finalized. As soon as the Appellees learned that the commitment papers were complete, they surrounded and advanced toward Armstrong. Armstrong reacted by sitting down and wrapping himself around a post that was supporting a nearby stop sign. The Appellees struggled to remove Armstrong from the post.

After about thirty seconds or so after struggling to remove Armstrong from the post, Appellees tasered Armstrong five separate times over a period of approximately two minutes. Shortly after the tasing ceased, Appellees removed Armstrong from the post and laid him facedown on the ground. During the struggle, Armstrong complained that he was being choked; however, no witness saw the police apply any chokeholds. Because of Armstrong’s continued resistance, Appellees handcuffed Armstrong and shackled Armstrong’s legs too. Appellees stood up to collect themselves and left Armstrong facedown in the grass. When the Appellees flipped Armstrong over, they saw that Armstrong’s skin had turned a bluish color and he did not appear to be breathing. Two of the Appellees administered CPR and the other radioed dispatch to send Emergency Medical Services. Armstrong was pronounced dead shortly after arriving to the hospital.

Based on the foregoing event, Appellant filed a complaint, suing each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that Appellees used excessive force. The district court granted summary judgment to Appellees, reasoning that “[i]t is highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity.” Appellant filed a timely notice of appeal.

Appellant Established the Violation of a Constitutional Right

The Fourth Circuit began its “qualified immunity analysis” by pointing out that this analysis involves two inquires: (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. Appellant’s case would survive summary judgment only if the Fourth Circuit answered both questions in the affirmative.

Turning to the first inquiry, the Fourth Circuit held that the Appellees conduct violated Armstrong’s Fourth Amendment right. Using the “objective reasonableness” standard as well as the factors enunciated in Graham v. Connor, the Fourth Circuit held that the level of force Appellees chose to use was not objectively reasonable because Appellees were merely confronted with a situation involving a few exigencies that justified only a limited degree of force. Tasing Armstrong exceeded this permissible, limited degree of force. The Fourth Circuit stated, “[i]mmediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response.” For this reason, Appellees were not entitled to summary judgment on the question of whether they violated the Constitution because, viewing the record in the light more favorable to Appellant, Appellees used excessive force in violation of the Fourth Amendment. Therefore, the Fourth Circuit answered the first question of its “qualified immunity analysis” in the affirmative.

Appellees Entitled to Qualified Immunity

Turning to the second inquiry, the Fourth Circuit held that Armstrong’s specific Fourth Amendment right was not “clearly established” at the time of Appellees’ alleged violation. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity; therefore, the Fourth Circuit nevertheless affirmed the district court’s grant of summary judgment to Appellees.

Using Fourth Circuit precedent, the court stated that qualified immunity shields government officials from liability for civil damages, provided that their conduct does not violate “clearly established” statutory or constitutional rights within the knowledge of a reasonable person. The inquiry into whether a constitutional right is “clearly established” required that the Fourth Circuit first define the precise right into which it was inquiring. After defining that right, the court had to determine whether that right was clearly established at the time Appellees acted. A right satisfies this standard when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Therefore, if the constitutional right was “clearly established” at the time Appellees acted, Appellees were not entitled to qualified immunity.

The Fourth Circuit had no trouble in defining the precise right into which it was inquiring. The constitutional right in this case was Armstrong’s right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure.

However, once the Fourth Circuit turned to the second question as to whether this constitutional right not to be tased was “clearly established,” it held that the defined constitutional right was not so settled at the time that Appellees acted such that every reasonable official would have understood that tasing Armstrong was unconstitutional. The Fourth Circuit looked to tasing cases from other circuits when discussing how the law—in relation to tasing and excessive force—was unsettled at the time Appellees tased Armstrong; thus, not every reasonable official would have understood tasing was unconstitutional in this situation. For this reason, the Fourth Circuit concluded that Armstrong’s right not to be tased while offering stationary and non-violent resistant to a lawful seizure was not “clearly established” on the date he was seized. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity.

Judgment Affirmed

The Fourth Circuit held that Appellees used unconstitutionally excessive force when seizing Armstrong, but the Fourth Circuit, nevertheless, agreed with the district court that Appellees were entitled to qualified immunity. For this reason, the Fourth Circuit affirmed the district court’s order granting Appellees’ motion for summary judgment.

One judge concurred in part as to the majority’s analysis of the Appellees’ qualified immunity defense; however, this judge wrote a concurring opinion to express his concern over the majority’s discussion on the merits of the excessive force claim. This judge felt as though the excessive force discussion was unnecessary and unwise.

By Whitney Pakalka

On May 19, 2015, The Fourth Circuit issued a published opinion in the civil case of Ussery v. Mansfield, 786 F.3d 332. Sammy Ussery filed suit under 42 U.S.C. § 1983 alleging that officers at the North Carolina penal institution where he was incarcerated caused him serious injuries by their use of excessive force. The Fourth Circuit affirmed the district court’s denial of the officers’ motion for summary judgment.

  Ussery Claimed Correctional Officers Used Excessive Force

Sammy Ussery was an inmate at a correctional facility where he was forcibly extracted from his cell by correctional officers on July 9, 2008. Sergeant David Mansfield ordered Ussery to exit his cell so that it could be searched, but Ussery refused because officers repeatedly searched his cell in previous days without discovering any contraband. Sgt. Mansfield then gathered an extraction team of officers, including Officers James Dunlow and Timothy Ruffin, named defendants.

Although prison policy mandates that extractions be videotaped, Sgt. Mansfield stood in front of the video camera during most of the extraction, obstructing the view of Userry’s cell. What can be seen on the video, however, comports with some of Ussery’s account that the officers “beat him repeatedly in the head and face with batons, punches and kicks” and that Sgt. Mansfield “kicked and stomped” on him. Ussery was eventually handcuffed and carried out of his cell, and he was later taken to the hospital for emergency treatment of his injuries.

Several months later, the State Bureau of Investigation conducted an inquiry at the request of the state Department of Corrections to determine whether excessive force was used. However, because the video of Userry’s cell was obstructed by Sgt. Mansfield, the SBI was not able to reach a definitive conclusion.

The District Court Denied One of Defendants’ Motion for Summary Judgment

Ussery filed an action pro se under 42 U.S.C. § 1983 alleging that the officers violated the Eighth Amendment by use of excessive force and for failure-to-protect. Ussery contended that as a result of the force used, he suffered hearing loss, neck pain, loss of vision in one eye, and other injuries that caused him ongoing “physical and emotional pain and suffering, and disability.”

The officers denied punching or kicking Ussery, and argued that he only incurred de minimis injuries. The officers submitted an affidavit of a doctor employed by the Division of Prisons who said that Ussery only had minor injuries with no lasting effects. The doctor based his medical opinion on prison records without examining Ussery. The officers requested summary judgment based on an entitlement to qualified immunity. The district court granted the motion as to the failure-to-protect claim, but denied the motion as to the excessive force claim.

Qualified Immunity from Civil Damages for Excessive Use of Force

In cases where excessive force is claimed, the Fourth Circuit previously applied the standard from Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en banc). The court in Norman held that a plaintiff cannot prevail on an Eighth Amendment excessive force claim if his injury is de minimis, unles he can show that the use of force was “repugnant to the conscience of mankind.” However, Norman was abrogated by the Supreme Court in Wilkins v. Gaddy, 559 U.S. 34, 38–39 (2010), holding that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”

The Fourth Circuit still applies the standard set out in Norman for cases where the alleged use of excessive force occurred before Wilkins was decided. Thus, because the extraction occurred in 2008, Ussery will have to establish (1) that he sustained more than de minimis injuries, or (2) that the use of force was “of a sort repugnant to the conscience of mankind and thus expressly outside the de minimis force exception.” Norman, 25 F.3d at 1263, n.4.

Jurisdiction for an Appeal from Denial of a Claim of Qualified Immunity

When a district court denies a claim of qualified immunity, it is an appealable final decision under 28 U.S.C. § 1291, “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). The Supreme Court further explained that where a district court denies summary judgment to a defendant seeking qualified immunity entirely on the basis of evidentiary sufficiency, no basis for an interlocutory appeal exists. Johnson v. Jones, 515 U.S. 394 (1995).

The district court, in its denial of summary judgment, found that a question of fact existed not only in regard to the extent of Ussery’s injuries, but also as to whether the circumstances were sufficient to show force “repugnant to the conscience of mankind,” thus satisfying the standard in Norman. Because the denial of summary judgment was based on the sufficiency of the evidence, the Fourth Circuit found that it was not permitted to review the lower court’s assessment of the factual evidence.

However, the Fourth Circuit inferred that the district court concluded that Ussery could establish a violation of law under Norman. Finding that this was a “purely legal conclusion,” the Court went on to consider whether the district court properly denied Defendant’s motion for summary judgment.

The officers argued that Ussery only suffered de minimis injuries and could not satisfy the Norman standard. The Fourth Circuit disagreed noting that whether a plaintiff’s injuries satisfy the standard depends on the facts of the case. The Court noted that the injuries Ussery claims may have long-term effects and were arguably more severe than injuries previously held to be sufficient for an excessive force claim. Additionally, the Department of Corrections conducted its own investigation, suggesting that the force used could have resulted in sufficiently serious injuries to meet the standard of Norman.

The Fourth Circuit Affirmed the District Court’s Judgment

Interpreting the facts in the light most favorable to Ussery, the Fourth Circuit affirmed the district court’s denial of Defendants’ motion for summary judgment requested on the basis of qualified immunity.

By Andrew Kilpinen

In a split decision featuring three separate opinions, the 4th Circuit affirmed in part and vacated in part the district courts dismissal in Owens v. Baltimore City State’s Attorneys.

 Owens Challenges Statute of Limitations, Sovereign Immunity, Qualified Immunity, and Failure to State a Claim

The Court reviewed four issues de novo: (1) Is Owens’s claim time barred, (2) is the Baltimore City State’s Attorney’s office an entity capable of suit, (3) are Officers Pelligrini, Dunnigan, and Landsman protected by qualified immunity, and (4) does Owens’s complaint contain sufficient factual content to survive a motion to dismiss on the claim that the BCPD followed a custom, policy, or practice by which local officials violated Owens’s constitutional rights?

 Owens Was Convicted of Rape and Murder

The present controversy grew out of the investigation, trial, and conviction of James Owens for the rape and murder of Colleen Williar on August 2, 1987. The State’s key witness, James Thompson, changed his testimony five times during the investigation and trial. Central to Owens’s appeal was withholding of the multiple variations of Thompson’s testimony from defense counsel.

The jury convicted Owens of burglary and felony murder. In 2006, DNA evidence showed that Owens’s DNA did not match the blood and semen evidence at the crime scene. On June 4, 2007, Owens was granted a new trial. On October 15, 2008 the State’s Attorney entered a nolle prosequi, dropping the charges against him. Owens was subsequently from prison released after twenty years of incarceration.

 Statute of Limitations Began to Run After the Nolle Prosequi and Owens’s Claim is Therefore Not Time Barred

First, the Court held that Owens’s claim is not time barred because the statute of limitations began to run when the State issued the nolle prosequi, not when the State granted Owens’s a new trial. Since § 1983 does not provide a statute of limitations, the Court must look to the common-law tort most analogous to Owens’s claim. Here, the Court identified malicious prosecution as the common-law tort most analogous to Owens’s §1983 claims. Generally, the statute of limitation clock begins to run as soon as the plaintiff knows or has reason to know of his injury. However, sometimes, as is the case in malicious prosecutions, the common law provides a “distinctive rule” for determining the start date of the limitations period. Thus, the Court held that the statute of limitations began to run on Owens’s claim after the nolle prosequi, not at the start of the new trial.

 Baltimore City State’s Attorney’s Office Is Not an Entity Capable of Being Sued

Second, the Court held that the Baltimore City State’s Attorney’s Office is not an entity capable of being sued because the office does not have a legal identity. To be suable, an office or agency must be granted a legal identity through statutory or constitutional authority. Owens argued that the Maryland General Assembly granted such legal identity when it named Title 15 of the Maryland Code of Criminal Procedure “Office of the State’s Attorney.” The Court rejected this argument stating that the title refers to a position held by an individual and not a suable office.

 Officers Are Not Protected by Qualified Immunity

The Court rejected the officer’s defense of qualified immunity. The Court had little difficulty concluding that Owens’s allegations state a plausible § 1983 claim because the information withheld by the officers would have supported his theory that Thompson committed the rape and murder; commenting that at the very least it would have discredited Thompson’s testimony. The Court cites the fact that the officers were seasoned veterans who called the ASA moments after receiving Thompson’s final story to support the conclusion that they withheld the four previous versions intentionally and maliciously. The Court points to precedent in Barbee, Sutton, and Boone in holding that the officers should have known that not disclosing material exculpatory evidence was a violation of Owens’s constitutional rights in 1988.

 Owens’s Complaint Survived Motion to Dismiss

Finally, the Court held that the factual allegations in Owens’s complaint, including reported and unreported cases of officers withholding information from the period of time before and during his trial, contained sufficient factual content to allege that the BCPD maintained a custom, policy, or practice allowing the withholding of material exculpatory evidence. The Court found the allegations that BCPD officers withheld information on multiple occasions could establish a “persistent and widespread” pattern of practice. The Court held that Owens’s complaint survived the BCPD’s 12(b)(6) motion to dismiss.

 4th Circuit Affirmed in Part and Vacated in Part

Owens will have yet another day in court to prove his § 1983 claims against the BCPD, and the individual officers, but not the State Attorney’s Office. The case was remanded to the district court for further proceedings.