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Kelly v. Conner

United States District Court, W.D. North Carolina, Charlotte Division

May 27, 2015

JUSTIN SHERILL KELLY, Plaintiff,
v.
SARAH H. CONNER, et al., Defendants.

MEMORANDUM AND ORDER

DAVID S. CAYER, Magistrate Judge.

THIS MATTER is before the Court on Defendants' City of Charlotte and Rodney Monroe, in his official capacity as the Police Chief for the Charlotte Mecklenburg Police Department ("CMPD") "Motion for Summary Judgment, " Doc. 38; Defendants' Michael Ford, William Murray, Eric Mickley, Jason Kerl and Gilberto a/k/a Gil Narvaez, individually and in their official capacity as law enforcement officers with the CMPD "Motion for Summary Judgment, " Doc. 39; "Defendant Sarah Conner's Motion to Dismiss and/or Summary Judgment..., " Doc. 41; "Defendant North Carolina Private Protective Services Board's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) and Motion for Summary Judgment..., " Doc. 44; and "Plaintiff's Motion for Partial Summary Judgment, " Doc. 43, as well as the parties' associated briefs, affidavits, and exhibits. See Docs. 40, 42, 45-60, 68-71.

The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and these Motions are now ripe for the Court's determination.

Having carefully considered the parties' arguments, the record, and the applicable authorities, the Court grants Defendants' Motions for Summary Judgment and denies Plaintiff's Motion for Partial Summary Judgment, as discussed below.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Justin Sherill Kelly seeks damages pursuant to 42 U.S.C. § 1983 for violation of his Fourth Amendment rights to be free from false arrest and unreasonable search and seizure. He also asserts state law claims for false arrest, intentional infliction of emotional distress, negligent infliction of emotional distress, malicious prosecution, abuse of process, trespass to chattels, conversion, and state RICO violations. Plaintiff also alleges violation of his Fourteenth Amendment rights to Due Process and Equal Protection and seeks declaratory and injunctive relief related to the general application of the Private Protective Services Act, Chapter 74C of the North Carolina General Statutes ("the Act").

Pursuant to Chapter 74C, Defendant Private Protective Services Board (the "Board"), an agency of the State of North Carolina and a part of the Attorney General's Office at the time of the events herein (and now under the Department of Public Safety), is tasked with licensing individuals and businesses that engage in private protective services in North Carolina, maintaining the registration of armed and unarmed security guards employed by licensed businesses and maintaining the registration of armed security guards for companies with proprietary security services. Any person, firm, corporation or individual engaged in private security activities is required by Chapter 74C to be licensed and registered with the Board.

Club Kalipzo is a public club located at 5920 North Tryon Street in Charlotte, North Carolina. Club Kalipzo has a permit to sell alcohol but is not licensed by the Board. On January 22, 2011, Plaintiff was working as a security guard in the parking lot of Club Kalipzo. An unknown patron stabbed a bouncer at the club and Charlotte Mecklenburg Police ("CMPD") were called. While waiting for CMPD officers to arrive, the unknown patron ran across the parking lot and began firing a handgun at Plaintiff. Plaintiff drew his handgun and the unknown patron fled the scene. When CMPD officers arrived, Officer J. Moore wrote an incident report and Plaintiff voluntarily surrendered his handgun for testing.

On February 12, 2011 Officer Moore advised Plaintiff that he was being charged with working as an "armed security guard" without having his firearm registered with the Board in violation of the Act. Plaintiff surrendered himself and was detained for approximately six hours before being released on an unsecured bond.

On June 1, 2011, Plaintiff was tried before Mecklenburg County District Court Judge Matt Osman. Judge Osman found Plaintiff not guilty and ordered his firearm returned to him. In July 2011, CMPD returned Plaintiff's firearm.

Plaintiff continued to work as a security guard for Club Kalipzo and carry a firearm for his own protection.

In early October 2011, Detective Jason Kerl was assigned to CMPD's Alcoholic Beverage Control (ABC) unit. Officers assigned to this unit had enforcement authority under a grant from the Mecklenburg ABC Commission. Detective Kerl was asked by a supervisor to investigate the armed security guards working in the parking lots of some nightclubs and determine if they were properly licensed.

Detective Kerl contacted the Board's Investigator Sarah Conner and asked her to accompany him on the inspections. Detective Kerl devised an operational plan to inspect approximately twelve nightclubs.

On October 14, 2011, at around 9:00 p.m., ten to twelve CMPD officers and Investigator Conner arrived at Club Kalipzo. CMPD officers observed Plaintiff dressed in black including a black tactical vest with a pistol strapped to the front. Detective Eric Mickley and another officer approached Plaintiff and asked if he had a permit to carry the weapon. Plaintiff advised that he did not have a permit from the Board and this was confirmed by Investigator Conner. Plaintiff was placed under arrest by Detective Mickley for working as an armed security guard without a permit in violation of the Act. Two guns and a knife were seized from Plaintiff.

On February 23, 2012, Mecklenburg County District Court Judge Kimberly Best-Staton found Plaintiff guilty on all charges. Plaintiff appealed to Superior Court.

On March 21, 2012, while the state charges were on appeal, a federal Grand Jury returned an Indictment charging Plaintiff with possession of a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). A Superseding Indictment added a charge under 18 U.S.C. § 922(a)(6) for making false statements during the purchase of two firearms. The Indictment charged that Plaintiff falsely represented that he had not been convicted of a misdemeanor crime of domestic violence on ATF Form 4473. Chief U.S. District Judge Frank D. Whitney was assigned to this case, United States v. Justin Kelly, No. 3:12-cr-108-FDW-DSC.

On April 10, 2012, in deference to the pending federal Indictment, the Mecklenburg County District Attorney dismissed the state charges brought under the Act.

In the federal case, Plaintiff filed a Motion to Suppress the seizure of the two firearms taken during his arrest on October 14, 2011. On August 29, 2012, Judge Whitney found that the officers had probable cause to arrest Plaintiff for violating the Act and that the two firearms were in plain view and thus lawfully seized.

On January 7, 2013, Judge Whitney ruled that Plaintiff's prior [2001] state conviction for assault on a female did not qualify as a "misdemeanor crime of domestic violence" under 18 U.S.C. § 922(g)(9) and dismissed Count One of the federal Indictment. Two weeks later, on January 22, 2013, Judge Whitney dismissed the second Count thereby concluding the federal case.

On November 11, 2013, Plaintiff filed the instant action against Defendants Sarah Conner in her individual and official capacities as an Investigator for the Board, the Board, CMPD Officers Michael Ford, William Murray, Gilberto a/k/a Gil Narvaez, Jason Kerl and Eric Mickley in their individual and official ...


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