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Birdsong v. Emory

United States District Court, E.D. North Carolina, Western Division

May 3, 2017

JESSE J. EMORY, individually and as an employee of the City of Wilson, North Carolina; and THE CITY OF WILSON, NORTH CAROLINA, Defendants.



         This cause comes before the Court on defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has responded, defendants have replied, and the matter is ripe for ruling. A hearing was held on the motion before the undersigned on April 13, 2017, at Raleigh, North Carolina. For the reasons that follow, defendants' motion is denied.


         On the evening of Friday June 29, 2012, plaintiff was walking down Lane Street in Wilson, North Carolina after having made a purchase at Nancy's Market, a convenience store. The area around the market is known to police for hand to hand drug sales. When plaintiff was about one hundred feet from the market, a group of police officers got out of an unmarked van to conduct a "jump out" - a tactic in which a group of police officers will quickly exit an unmarked vehicle and attempt to engage people in an area in conversation. Plaintiff had previously been stopped, questioned, and frisked as a part of a "jump out" and on this night continued walking away from the market. Two officers, defendant Emory and Officer Snider, who is not named as a defendant, called out to plaintiff but did not give him a command to stop.

         Plaintiff continued walking away from the officers and denies doing anything suspicious; Emory testified in his deposition that while plaintiff was walking away he could be seen engaging in furtive movements around his waistband. The officers began to run toward plaintiff and plaintiff began to run as well. Plaintiff contends that after running from the officers for a brief time he came back to the street and decided to give himself up in a public area. Plaintiff testified that after he stopped running he complied with a command from the officers to put his hands over his head. Plaintiff states that he was then struck from behind, lifted by one of the officers in the air, and slammed to the ground, injuring his right cheek. The officers have stated that they did not give plaintiff a command to put his hands on his head, that plaintiff did not put his hand on his head, and that plaintiff never stopped running on his own but rather was brought to the ground by Officer Snider in a "controlled fall" maneuver. Once on the ground plaintiff was handcuffed.

         Plaintiff states that he was then strip searched on the street in plain view of others; the statement of witnesses who could see plaintiff being strip searched have been proffered by plaintiff. After being searched by both police officers and K-9, no weapons or contraband were found either on plaintiff or on the path that plaintiff took while being pursued by the officers. Plaintiff was briefly examined by emergency medical technicians (EMTs) and was then brought before a Wilson County magistrate who found probable cause based on defendant Emory's testimony to arrest plaintiff for willfully and unlawfully resisting, delaying and/or obstructing a police office in discharging or attempting to discharge a duty of his office in violation of N.C. Gen. Stat. § 14-223. Plaintiff was released without a bond and the charge was ultimately dismissed by an assistant district attorney before trial. Two days following the incident, plaintiff sought medical treatment for the injury to his face and was diagnosed with a fracture to his right orbital bone.

         Plaintiff filed this suit under 42 U.S.C. §§ 1983 and 1988 for violations of his federal constitutional rights, specifically his liberty interest in bodily integrity under the due process clause of the Fourteenth Amendment, his Fourth Amendment right to be free from excessive force and unreasonable search and seizure, and his Fourteenth Amendment right to due process prior to infliction of corporal punishment. Plaintiff has also alleged a § 1983 claim for malicious prosecution as well as state law claims for battery, gross negligence, and malicious prosecution/abuse of process. Defendants have moved for summary judgment in their favor on all claims and have raised the affirmative defense of qualified immunity.


         A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party.... and [a] fact is material if it might affect the outcome of the suit under the governing law." Libertarian Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted). Speculative or conclusory allegations, however, will not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002).

         I. Section 1983 and 1988 claims

         Defendants contend, and plaintiff does not contest, that plaintiffs liberty interest, excessive force, and malicious prosecution claims are properly analyzed under a Fourth Amendment rubric as these claims all flow from his allegedly unreasonable seizure both at the time he was stopped and at the time he was arrested. See Graham v. Connor, 490 U.S. 386, 394-5 (1989); see also Lambert v. Williams, 223 F.3d 257, 262 (4th Cir. 2000) (noting "there is no such thing as a '§ 1983 malicious prosecution' claim.").

         Qualified immunity shields government officials from liability so long as they could reasonably believe that their conduct does not violate clearly established law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). It protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986); see also Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012). A court employs a two-step procedure for determining whether qualified immunity applies that "asks first whether a constitutional violation occurred and second whether the right violated was clearly established." Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194 (2001)). Again, the facts are construed in the light most favorable to plaintiff. Id.

         It is undisputed that plaintiff was seized by defendant Emery and Officer Snider. As there are genuine issues of material fact in the record as to whether a reasonable articulable suspicion existed to support plaintiffs seizure or whether probable cause existed to support plaintiffs arrest, the motion for summary judgment on plaintiffs Fourth Amendment and derivative claims is denied. See Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992) (while determination of whether a right is clearly established is a legal question always answerable at summary judgment, where there are issues of fact with respect to the officer's conduct or its reasonableness summary judgment is inappropriate).

         In order to justify a brief, investigatory stop of a citizen on a public street, an officer must have reasonable, articulable suspicion that criminal activity is afoot. Terry v. Ohio,392 U.S. 1, 21 (1968). Reasonable suspicion is a less demanding standard than probable cause, but an officer "must be able to articulate more than an inchoate and unparticularized suspicion or 'hunch' of criminal activity." Illinois v. Wardlow,528 U.S. 119, 123-24 (2000) (internal quotation marks omitted) (quoting Terry, 392 U.S. at 27). Although the character of the area and a subject's flight from officers will weigh in favor of a reasonable suspicion of criminal activity, Wardlow, 528 U.S. at 124, the record here, when taking the facts in the light most favorable to plaintiff, does not support finding that defendant Emery is entitled to qualified immunity at this stage. Plaintiff asserts that he was merely walking away from the officers, unhurriedly, when they called out to him, and it is undisputed that no command to stop was given prior to the chase. See Florida v. Royer,460 U.S. 491, 498 (1983) (refusal to listen or answer police after being approached on the street does not provide a basis for detention). Plaintiff denies making "furtive" movements near his waistband and ...

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