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Brown v. Town of Chapel Hill

Court of Appeals of North Carolina

April 1, 2014

CHARLES D. BROWN, Plaintiff,
TOWN OF CHAPEL HILL, CHAPEL HILL POLICE OFFICER D. FUNK, in his official and individual capacity, and OTHER CHAPEL HILL POLICE OFFICERS, in their individual and official capacities, to be named when their identities and level of participation becomes known, Defendants

Heard in the Court of Appeals August 28, 2013.

Orange County. No. 11 CVS 1204.

McSurely and Turner, PLLC, by Alan McSurely, for plaintiff-appellee.

Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog and Dan M. Hartzog, Jr., for defendants-appellants.

Robert C. HUNTER, Judge. Judge McCULLOUGH concurs. Judge GEER dissents by separate opinion.


Page 750

Appeal by defendants from order entered 18 September 2012 by Judge Carl R. Fox in Orange County Superior Court. Heard in the Court of Appeals 28 August 2013.

HUNTER, Robert C., Judge.

Officer D. Funk (" defendant" or " Officer Funk" ) and the Town of Chapel Hill (" the Town" ) (collectively " defendants" ) appeal from an order denying in part their motion for summary judgment as to the claim of plaintiff Charles D. Brown for false imprisonment. Only Officer Funk's appeal from the trial court's denial of his motion for summary judgment based on public official immunity is properly before us. Because plaintiff failed

Page 751

to forecast evidence that Officer Funk acted with malice, we reverse.


This lawsuit arises out of the stop and detention of plaintiff by Officer Funk and other officers of the Chapel Hill Police Department (" CHPD" ) on the night of 1 June 2009. Plaintiff, a black male, is the owner of Precise Cuts & Styles Barber Shop located at 136 E. Rosemary Street in Chapel Hill, North Carolina.

According to plaintiff's verified complaint and deposition, on 1 June 2009, after closing his shop at 10:00 p.m., plaintiff stayed late to do some cleaning and remodeling. When plaintiff was finished, around 11:25 p.m., he locked the shop's front door and walked west on Rosemary Street towards his fiancé 's house in Carrboro.

At around 11:35 p.m., plaintiff was walking along the north side of West Rosemary Street when he saw two officers in police cars parked in the convenience store lot on the south side of the street across from Breadman's Restaurant. One of the officers pulled out on Rosemary Street and into an empty lot on the south side of the street. As he walked past the officer, plaintiff raised his right arm across his face, scratching the left side of his face with his right hand. Plaintiff continued walking on the north side of the street past the Breadman's parking lot, and heard someone say, " Stop." Not realizing that the person was talking to him, plaintiff continued walking.

Plaintiff then heard the same voice again, this time directly behind him, saying, " I said stop!" Plaintiff turned and saw Officer Funk with his hand on his weapon about five feet away. Plaintiff asked, " Stop for what? What did I do?" Officer Funk responded, " [Y]ou are under arrest, Mr. Farrington [sic]" as he grabbed plaintiff's hand, spun him around, pushed him against the back of a second police car that had just pulled in front of plaintiff. Officer Funk pulled plaintiff's other arm behind his back and tightly fastened the handcuffs on plaintiff's wrists, inflicting pain.

Plaintiff informed the officers that he was not Cuman Fearrington (" Mr. Fearrington" ) and that his actual name was Charles Brown. When plaintiff did not receive any response from the officers, he asked, " [A]re you sure you want to do this? My name is not Mr. Farrington [sic]." Again, the officers did not respond. Instead, Officer Funk pushed plaintiff against the trunk of the police car and patted plaintiff down, checking for weapons. Plaintiff told Officer Funk to look in his pants pocket for his ID cards. Defendant pulled out a set of cards held together with a rubber band, flipped through them, and threw them on the trunk of the police car.

When Officer Funk asked plaintiff from where he was walking, plaintiff told him that he had just left work. Officer Funk questioned plaintiff: " From work at this time of night?" Plaintiff explained that he owned a barber shop on Rosemary Street. Officer Funk replied in a sarcastic and incredulous tone: " Oh? You own a business?" Plaintiff responded, " If I was white, this would not be happening." Officer Funk then asked whether plaintiff would " feel better" if he called a black officer. Because plaintiff again thought Officer Funk was being sarcastic, he replied, " No."

In the meantime, five police cars gathered, and several cars and pedestrians slowed or stopped to observe what was happening. A black police officer, Officer D. Williams, asked plaintiff, " If I had pulled you, would you feel better?" Plaintiff then heard Officer Williams say to the other officers, " I hate the ones like him."

At 12:14 a.m., Officer Funk's partner, Officer Castro, called Orange County Communications to verify the information on plaintiff's identification card. When the operator confirmed plaintiff's identification, Officer Castro asked, " [D]oes he have anything on the NCIC? Or anything on other surrounding indices?" The operator replied, " I don't show anything in NCIC but I'm going to check surrounding . . . I'll have to send a message . . . it will take a few . . . ." Eventually the operator responded that there was " no positive response," and the 16-minute call ended at 12:30 a.m. A few minutes later, Officer Funk removed plaintiff's handcuffs, and he and the other officers drove off without apologizing or saying anything else to plaintiff.

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The following day, plaintiff and his fiancé drove to the CHPD to file a complaint and ask for a photograph and description of Mr. Fearrington. They met with Lieutenant Bradley who told them he did not have time to look up the requested information and that Officer Funk was in training and could not meet with them either. Because of what plaintiff and his fiancé perceived as a discriminatory and disrespectful attitude from Lt. Bradley, they did not file a complaint that day, fearing it would be dismissed with the same attitude.

Instead, on 16 June 2009, plaintiff reported the incident to the local NAACP, who asked the CHPD for the incident report of plaintiff's arrest. Plaintiff was provided the incident report on 24 June 2009. Defendants admitted that the report was not created until requested by the NAACP, two weeks after the incident. The report is unsigned by Officer Funk and states that at 12:17 a.m. on 2 June 2009 the " State of North Carolina" was the victim of a " Suspicious Person" on the 300 Block of West Rosemary Street.

The report lists Officers Castro and Sabanosh as " others involved" in the incident. Officer Sabanosh does not, however, appear anywhere on the radio log from that night. Although the radio log indicates that Officer Taylor was present at the scene of the incident, the incident report does not mention him. Officer Williams, the black officer, is not mentioned in either the radio log or on the incident report.

On 2 June 2011, plaintiff filed suit against the Town and Officer Funk in his official and individual capacity for assault, false imprisonment, and violation of plaintiff's constitutional rights under Article I, Section 20, and Article I, Section 19, of the North Carolina Constitution. Plaintiff pled that the Town had waived sovereign immunity by the purchase of liability insurance. In its response, the Town admitted that it " participates in a local government risk pool, which provides certain coverage to the Town with respect to Plaintiff's claims."

On 13 August 2012, defendants filed a motion for summary judgment, arguing that (1) plaintiff had not and could not establish facts to support any of his causes of action, (2) Officer Funk was entitled to public official immunity in his individual capacity, (3) the claims against Officer Funk in his official capacity are duplicative of the claims against the Town, and (4) the claims directly under the North Carolina Constitution should be dismissed because plaintiff had adequate state remedies available. In support of the motion for summary judgment, defendants submitted an affidavit from Officer Funk.

According to Officer Funk's affidavit, he did not see plaintiff until 12:14 a.m.--he drove to the Keys Food Mart, where plaintiff first saw the two officers parked, after responding to a loud music complaint on Church Street at 12:04 a.m. Officer Funk first saw plaintiff walking west on the south side of the road as defendant was turning right onto Rosemary. As he made his turn, Officer Funk saw plaintiff look up in his direction and immediately put his right hand in front of his face. Plaintiff continued to cover his face with his hand, moving his hand slowly across his face as Officer Funk drove by to keep his face from view. After plaintiff passed Officer Funk, plaintiff crossed from the south side to the north side of the street just before reaching Officer Castro's patrol car in the Keys Food Mart lot. As he crossed the street, he switched from using his right hand to cover his face to using his left hand so that Officer Castro could not see his face. Officer Funk claimed that plaintiff hid his face continuously.

Based on Officer Funk's belief that plaintiff was intentionally hiding his face and it being after midnight in a high call volume area of town, Officer Funk decided to investigate further. He turned his vehicle around to get a closer look at plaintiff, and, when he got close enough, " the individual resembled a subject [he] knew had active local arrest warrants--Cuman Fearrington." In addition to the arrest warrants, Officer Funk noted that Mr. Fearrington had evaded arrest in the " Central Business District" of Chapel Hill earlier that day. Officer Funk, believing that plaintiff was Mr. Fearrington, thought that plaintiff was intentionally covering his face based on those outstanding arrest warrants.

Page 753

According to Officer Funk, he got out of his police car and asked plaintiff if he could speak to him, but plaintiff ignored him and increased his pace. Officer Funk denied placing his hand on his weapon or threatening force. Officer Funk then told plaintiff to stop, repeating his order several times before plaintiff turned around and asked, " Why do I have to stop, just because you say so?" At that point, Officer Castro had pulled his vehicle in front of plaintiff, and it appeared to Officer Funk that plaintiff was attempting to walk around Officer Castro's vehicle. Defendant also claimed that he believed that plaintiff might run away into an open alley nearby. Concerned that plaintiff may attempt to run, Officer Funk placed his hands on plaintiff's left arm, and plaintiff jerked his arm away. Officer Funk placed plaintiff in handcuffs with the assistance of another officer; he claimed plaintiff continued to struggle during the encounter.

Officer Funk's account of what happened after he handcuffed plaintiff also differs from plaintiff's account. Officer Funk stated that while he was patting plaintiff down for weapons, he asked plaintiff for his identification, and plaintiff told him he did not have any. Officer Funk claims that he asked plaintiff more than three times for his identification and that each time plaintiff gave the correct name but the wrong date of birth, all while denying that he had identification on his person. Officer Funk also denies that any of the comments he made to plaintiff regarding plaintiff working late and owning a business were intended to express skepticism or to disparage plaintiff.

Officer Funk attributes the delay in the verification of plaintiff's identification to the fact that communications originally ran an incorrect birth date into the database. As soon as communications ran the correct date of birth, they were able to confirm plaintiff's identity. Officer Funk claims that plaintiff was only in investigative detention for 16 minutes, from 12:14 a.m. to 12:30 a.m.

Attached to Officer Funk's affidavit was the radio log for that night, which shows the self-reported status of the CHPD officers. The log stated that Officer Funk was dispatched to 500 Umstead Road at 11:32 p.m., and he arrived there at 11:42 p.m. At 11:50 p.m., Officer Funk radioed dispatch that he was available. At 11:54, he was dispatched to a loud noise complaint at Church Street and radioed that he was again available at 12:04 a.m. The log does not show that Officer Funk ever radioed that he had arrived on the scene at Church street, as it shows for the other locations to which he was dispatched that night. Finally, the log shows that Officer Funk arrived at Breadman's at 12:15 a.m. and radioed that he was available at 12:32 a.m. Defendants also provided documentation of the call between Officer Castro and Orange County Communications, which shows that the call began at 12:14 a.m. and ended at 12:30 a.m.

Judge Carl Fox heard defendants' motion for summary judgment and, on 18 September 2012, Judge Fox entered an order allowing defendants' motion as to plaintiff's constitutional claims and his claim for assault. Judge Fox denied the motion as to plaintiff's claim for false imprisonment as to all defendants. Defendants appealed to this Court.

Grounds for Appeal

Preliminarily, we note that Judge Fox's order is interlocutory and, generally, an order denying a motion for summary judgment is not immediately appealable. Schmidt v. Breeden, 134 N.C.App. 248, 251, 517 S.E.2d 171, 174 (1999). " An interlocutory appeal is ordinarily permissible only if (1) the trial court certified the order under Rule 54(b) of the Rules of Civil Procedure, or (2) the order affects a substantial right that would be lost without immediate review." Boyd v. Robeson Cnty., 169 N.C.App. 460, 464, 621 S.E.2d 1, 4 (2005).

Officer Funk contends that the trial court erred in denying his motion for summary judgment based on public official immunity. This Court has held that a public official's right to be immune from suit is a substantial right justifying an interlocutory appeal. See Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C.App. 581, 583, 664 S.E.2d 8, 10 (2008). Therefore, defendant's appeal of the denial of the motion for summary judgment based on public official immunity is properly before us.

Page 754

Additionally, both defendant and the Town have sought immediate review of the denial of their motion for summary judgment on several non-immunity related grounds. Defendants argue that " it is well established that this Court will, in the interests of judicial economy, entertain the entirety of an appeal involving an issue which affects a substantial right, though the remaining issues on appeal do not, in and of themselves, affect such a right."

Defendants cite Block v. Cnty. of Person, 141 N.C.App. 273, 277, 540 S.E.2d 415, 419 (2000) (addressing the defendants' argument that the complaint was insufficient to sue the defendants in their individual capacity); Houpe v. City of Statesville, 128 N.C.App. 334, 340, 497 S.E.2d 82, 87 (1998) (addressing " in our discretion" the defendant's non-immunity related arguments " where it would be in the interests of judicial economy to do so" ); Smith v. Phillips, 117 N.C.App. 378, 384, 451 S.E.2d 309, 314 (1994) (holding that " in the interest of judicial economy, we exercise our discretionary power to suspend the rules pertaining to interlocutory appeals and address the remainder of [the] defendants' appeal" ).

However, this Court has noted that in cases where we have exercised our discretion to also review non-immunity issues, the Court has neither held " that non-immunity-related issues would always be considered on the merits in the course of deciding an immunity-related interlocutory appeal" nor " recognize[d] the existence of a substantial right to have multiple issues addressed in the course of an immunity-related appeal. On the contrary, in most immunity-related interlocutory appeals, we have declined requests that we consider additional non-immunity-related issues on the merits." See Bynum v. Wilson Cnty., __ N.C.App. __, __, 746 S.E.2d 296, 300, disc. review dismissed, __ N.C. __, 748 S.E.2d 559 (2013). In this case, after considering all of the circumstances, we decline to exercise our discretion to consider the merits of defendants' non-immunity issues on appeal and dismiss defendants' appeal with respect to those issues as interlocutory.


The sole issue properly before us is whether Judge Fox erred by denying Officer Funk's motion for summary judgment based on public official immunity.

Summary judgment shall be granted " 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 any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56 (2013). When deciding the motion, " 'the trial judge must view the presented evidence in a light most favorable to the nonmoving party.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001)). Additionally, " '[a]ll facts asserted by the [nonmoving] party are taken as true and their inferences must be viewed in the light most favorable to that party.'" Woods v. Mangum, 200 N.C.App. 1, 5, 682 S.E.2d 435, 438 (2009) (quoting Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)), aff'd per curiam, 363 N.C. 827, 689 S.E.2d 858 (2010). This Court reviews an appeal from summary judgment de novo. Id. In applying Rule 56, this Court has held that " [s]ummary judgment is appropriate . . . if the non-moving party is unable to overcome an affirmative defense offered by the moving party." Free Spirit Aviation, 191 N.C.App. at 583, 664 S.E.2d at 10 (quoting Griffith v. Glen Wood Co., Inc., 184 N.C.App. 206, 210, 646 S.E.2d 550, 554 (2007)).

I. Public Official Immunity -- Malice Exception

As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability. Thus, a public official is immune from suit unless the challenged action was (1) outside the scope of official authority, (2) done with malice, or (3) corrupt.

Wilcox v. City of Asheville, __ N.C.App. __, __, 730 S.E.2d 226, 230 (2012) (internal citations omitted), disc. review denied,

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366 N.C. 574, 738 S.E.2d 363 (2013). Here, the only exception to public official immunity plaintiff argued on appeal is the malice exception. Specifically, plaintiff has not cited any authority separately addressing the corruption exception to the public official immunity doctrine or provided any analysis as to this in his brief. Therefore, we will only address the malice exception. See Wilkerson v. Duke Univ., __ N.C.App. __, ...

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