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Appellee was allegedly hit in the head by a law enforcement officer during a confrontation. Appellee filed a civil complaint against the city and the two officers involved in the incident (Appellants), alleging that his civil rights had been violated due to the use of excessive force by the officers. Appellants moved for summary judgment, asserting immunity from suit both on qualified immunity and statutory immunity grounds. The circuit court denied the motion. The Supreme Court reversed the denial of summary judgment, holding (1) a public officer is entitled to qualified immunity from civil damages for performance of discretionary functions where (i) a trial court finds the alleged facts do not demonstrate that the officer's conduct violated a constitutional right, or (ii) a trial court finds the evidence could establish the officer's conduct violated a constitutional right but further finds that it would be clear to any reasonable officer that such conduct was lawful in the situation confronted; and (2) Appellants were entitled to qualified immunity from suit, either because (i) no constitutional violated was established by the facts alleged, or (ii) a reasonable officer confronting the same situation, without notice to the contrary, would have considered the action lawful.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2011 Term
November 23, 2011
released at 3:00 p.m.
R O R Y L. P E R R Y II, C LE R K
S U P R E M E C O U R T O F AP P E ALS
O F W E S T V IR G IN IA
CITY OF SAINT ALBANS, A WEST VIRGINIA MUNICIPAL CORPORATION
AND B. L. TAGAYUN AND A.C. TRUITT,
Defendants Below, Petitioners
DAVID A. BOTKINS,
Plaintiff Below, Respondent
Appeal from the Circuit Court of Kanawha County
Honorable John S. Hrko, Senior Status Judge,
sitting by temporary assignment
Civil Action No. 09-C-1432
REVERSED AND REMANDED
Submitted: September 28, 2011
Filed: November 23, 2011
Duane J. Ruggier, II
David A. Holtuzapsel
Pullin, Fowler, Flanagan, Brown & Poe
Charleston, West Virginia
Counsel for Petitioners
Michael T. Clifford
Law Office of Michael T. Clifford
Charleston, West Virginia
Counsel for Respondent
JUSTICE MCHUGH delivered the Opinion of the Court.
Justice Benjamin dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “A circuit court’s denial of summary judgment that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under the
‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660
2. “This Court reviews de novo the denial of a motion for summary judgment,
where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm
Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).
3. “A motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.” Aetna Casualty & Surety Co. v. Federal Ins.
Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
4. “Government officials performing discretionary functions are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. A
policeman’s lot is not so unhappy that he must choose between being charged with
dereliction of duty if he does not arrest when he has probable cause, and being mulcted in
damages if he does.” Syllabus, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987).
5. “The ultimate determination of whether qualified or statutory immunity bars
a civil action is one of law for the court to determine. Therefore, unless there is a bona fide
dispute as to the foundational or historical facts that underlie the immunity determination,
the ultimate questions of statutory or qualified immunity are ripe for summary disposition .”
Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).
6. A public officer is entitled to qualified immunity from civil damages for
performance of discretionary functions where: (1) a trial court finds the alleged facts, taken
in the light most favorable to the party asserting injury, do not demonstrate that the officer’s
conduct violated a constitutional right; or (2) a trial court finds that the submissions of the
parties could establish the officer’s conduct violated a constitutional right but further finds
that it would be clear to any reasonable officer that such conduct was lawful in the situation
confronted. Whenever the public officer’s conduct appears to infringe on constitutional
protections, the lower court must consider both whether the officer’s conduct violated a
constitutional right as well as whether the officer’s conduct was unlawful.
In this interlocutory appeal of the November 5, 2010, order of the Circuit
Court of Kanawha County,1 the defendants below — the City of Saint Albans, B.L. Tagayun
and A.C. Truitt2 (hereinafter collectively referred to as “Appellants”) — challenge the trial
court’s refusal to grant summary judgment on qualified immunity grounds. The underlying
civil complaint filed by David A. Botkins (hereinafter “Mr. Botkins” or “Appellee”)
included the allegation that his civil rights had been violated due to the use of excessive
force by municipal law enforcement officers. In response, Appellants raised the defense of
qualified immunity in a motion for summary judgment.
Appellants contend that the lower court applied an incorrect standard in its
qualified immunity analysis and improperly denied its motion for summary judgment on this
ground. They also maintain that the lower court erred by not ruling on the other grounds
they raised in support of summary judgment.3 After careful review of the record, due
The underlying civil action was assigned to Judge James C. Stuckey.
However, the summary ruling in question was made by Senior Status Judge John S. Hrko
who was sitting by temporary assignment.
The complaint initiating the civil suit indicates that Mr. Tagayun and Mr.
Truitt were being sued in their capacity as municipal law enforcement officers, with Mr.
Tagayun also being sued in his individual capacity.
The second assignment of error specifically states the lower court “erred when
it denied the City of St. Albans, B.L. Tagayun, and A. C. Truitt’s Motion for Summary
Judgment because the Court did not, in fact, rule upon the other arguments proffered with
consideration of the arguments raised by the parties, and close examination of the applicable
law, the denial of summary judgment is reversed on qualified immunity grounds for the
reasons stated in this opinion.
I. Factual and Procedural Background
The incident giving rise to the underlying civil complaint involved a
confrontation between Mr. Botkins and the Saint Albans police on November 23, 2008.
Two municipal law enforcement officers were involved, one being a paid police officer, Mr.
Tagayun, and the other being a reserve (volunteer) officer, Mr. Truitt. According to the
affidavit of Mr. Truitt in the record, the two officers were on foot patrol in an area near a
Taco Bell in Saint Albans around 3 a.m. on November 23, 2008, when they heard shouting
coming from the proximity of the drive-thru lane of the restaurant. At the same time they
saw a male running from the main parking lot of the Taco Bell to the drive-thru area. The
officers crossed the street to investigate and observed three males outside of a Jeep Cherokee
holding items which could have been used as weapons. One of the males had a longhandled Mag-lite flashlight, a second had a small bat, the third (Mr. Botkins) did not have
anything in his hands but did have a cast on his right arm. These three males were in what
the Defendants’ Motion for Summary Judgment.” These alternative grounds as set forth in
Appellants’ brief include arguments regarding statutory immunity applicable to the City of
Saint Albans, statutory immunity applicable to Mr. Tagayun and Mr. Truitt individually, and
insufficient evidence to support the claim of emotional distress.
appeared to be a confrontational posture facing three other males who were standing empty
handed outside of a pickup truck.
Appellee’s explanation of the facts of what occurred on November 23, 2008,
appear in his deposition contained in the record. He testified that one of the two male
companions with him in his Jeep Cherokee that morning began shouting obscenities at the
occupants of a truck ahead of them in line at the drive-thru because the driver of the truck
was slow in moving forward to close a gap in the line. The three male occupants of the
truck exited the vehicle and approached the Jeep.4 Appellee and the two males with him
exited the Jeep. While Appellee did not have anything in his hands when he got out of the
Jeep, one of his companions had a flashlight5 in his hand and the other had a wooden club.6
Appellee said that because of the cast on his arm he positioned himself so that his friends
were between him and the three males approaching from the truck. As the six males faced
off shouting obscenities at each other, one of Appellee’s passengers recognized a passenger
The driver of the truck was deposed and he testified that after his two
companions got out of the truck to head toward the Jeep, he moved the truck to the front
parking lot of the eatery. He went on to explain that he ran back to join his companions in
the area of the drive-thru because he had recognized one of the passengers of the Jeep and
hoped to ward off a possible fight between the two groups.
The Appellee agreed during the deposition that the flashlight was a large
Later in the deposition Appellee described the club as a short baseball bat he
had made at work and had left in his Jeep.
of the truck as someone he knew, causing the confrontation to abate. Appellee testified in
his deposition that the change from an argumentative showdown to a calmer exchange
between the six males occurred “about that time” Officers Tagayun and Truitt arrived on the
scene. Portions of the depositions in the record of three other young males involved in the
encounter corroborated this observation.
When the officers approached the group, Officer Tagayun ordered the group
to get down on the ground and all but Mr. Botkins complied fully with the order. In his
deposition testimony, Appellee said that when Officer Tagayun saw him on his knees the
officer ran up to him, and threw Appellee’s hands up behind his back while kneeing him in
the back. Appellee said that Officer Tagayun then hit him in the head with the butt of his
drawn gun. He further said that while the officer proceeded to hit him twice more with the
butt of the gun and repeatedly kicked him he yelled: “That’s police brutality. I didn’t do
nothing wrong. Why did you hit me?” Appellee was subsequently handcuffed and placed
in shackles, which were removed when the ambulance arrived to attend to Mr. Botkins’ head
The complaint states that Mr. Botkins was transported to a hospital for
treatment which included the application of seven staples to one head wound and three to
Based upon this incident, Mr. Botkins filed a complaint initiating a civil suit
against the city and the officers on August 6, 2009. Mr. Botkins’s complaint alleged various
grounds including “constitutional tort action” for violation of federal and state constitutional
rights,8 vicarious liability and negligent hiring on the part of the city, battery and intentional
infliction of mental, physical and emotional distress by the officers, and false
arrest/malicious prosecution directed solely at Mr. Tagayun for “maliciously and falsely
obtain[ing] warrants for the arrest of the plaintiff.”
On August 11, 2010, Appellants moved for summary judgment asserting
immunity from suit both on qualified immunity and statutory immunity grounds. They
maintained that qualified immunity was applicable because the individual actions of the
officers were not “clearly unlawful” as defined by the United States Supreme Court in
Saucier v. Katz, 533 U.S. 194 (2001). It was stressed that Mr. Truitt was acting in the
capacity of a volunteer officer, did not cause injury to Mr. Botkins and he had no duty to
intervene. Two arguments were made with regard to statutory immunity under the state’s
Governmental Tort Claims and Insurance Reform Act:9 (1) the City of Saint Albans was
The complaint alleges violations of “Article III, Sections 1, 5, 10, and 14 of
the West Virginia Constitution which incorporates the constitutional rights guaranteed to
plaintiff under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution.” As presented, the “constitutional tort” claim would be a civil rights
action under the provisions of 42 U.S.C. § 1983 (1996).
W.Va. Code §§ 29-12A-1 through 18.
immune from common law claims for any intentional act of its employees;10 and (2) the
individuals were immune from the claims because they were acting within the scope of their
authority and without evidence of malice, bad faith or recklessness.11
The transcript of the November 4, 2010, hearing on the summary judgment
motion reflects that the circuit court primarily addressed the qualified immunity argument,
although brief consideration was given to the contention that Mr. Truitt as a
reserve/volunteer officer had no duty to intervene.12 The circuit court denied the motion for
summary judgment concluding that the case would be better decided on a motion for a
directed verdict. Defense counsel, focusing on Mr. Truitt’s involvement, restated that the
U.S. Supreme Court’s standard in Saucier required a finding that the actions of the reserve
officer were “clearly unlawful” in order to defeat the defense of qualified immunity. The
trial court repeated its ruling that a motion for a directed verdict would be the best time to
make that decision even for qualified immunity purposes. The subsequent order entered on
See W.Va. Code § 29-12A-4(c) (2) (1986) (political subdivision liability
extends only to negligent acts of employees acting within the scope of employment).
See W.Va. Code § 29-12A-5(b) (1-3) (1986) (providing immunity to political
subdivision employees unless their actions or omissions are manifestly outside the scope of
official responsibilities, or involve a malicious purpose, bad faith or recklessness, or liability
is expressly imposed by statute).
As no record had yet been developed in this case regarding the legal
parameters surrounding the position or authority of a reserve/volunteer officer, it is beyond
the scope of our consideration in this appeal.
November 5, 2010, simply indicates that summary judgment was denied “for reason stated
on the record.”
Appeal of the denial of summary judgment was filed with this Court on
December 23, 2010.
II. Standard of Review
An order denying a motion for summary judgment is interlocutory and is
generally not appealable except in special instances. Syl. Pt. 8, Aetna Casualty & Surety Co.
of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). This Court has specifically recognized
that “[a] circuit court’s denial of summary judgment that is predicated on qualified immunity
is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’
doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009). The Court
observed in Robinson that allowing interlocutory appeal of a qualified immunity ruling is the
only way to preserve the intended goal of an immunity ruling: to afford public officers more
than a defense to liability by providing them with “the right not to be subject to the burden
of trial.” Id. at 833, 679 S.E.2d at 665 (citation omitted). Therefore, while it is appropriate
to proceed with this appeal, our review is limited to the sole issue of qualified immunity.13
The standard of review applied in these special instances is stated in syllabus
point one of Findley v. State Farm Mutual Automobile Insurance Company, 213 W.Va. 80,
576 S.E.2d 807 (2002): “This Court reviews de novo the denial of a motion for summary
judgment, where such a ruling is properly reviewable by this Court.” Likewise, the review
undertaken follows the general principle applicable to any summary judgment ruling: “A
motion for summary judgment should be granted only when it is clear that there is no genuine
issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the
application of the law.” Syl. Pt. 3, Aetna Casualty & Surety Co., 148 W.Va. at 160, 133
S.E.2d at 771.
Appellants maintain that the lower court applied an incorrect standard in
denying the motion for summary judgment on qualified immunity grounds. Identifying the
proper standard is the foundation of our discussion.
In cases where interlocutory review of qualified immunity determinations
occurs, any summary judgment rulings on grounds other than immunity are reserved for
review at the appropriate time should the interlocutory appeal result in finding immunity
inapplicable under the circumstances.
Our approach to matters concerning immunity historically has followed federal
law due in large part to the need for a uniform standard when, as in the case before us,
public officers are sued in state court for violations of federal civil rights pursuant to 42
U.S.C. § 1983. Robinson at 834, 679 S.E.2d at 666. Our general immunity standard was
adopted in Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987), overruled in part,
State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992), a case involving a
42 U.S.C. § 1983 action against police officers for entering a private residence without an
arrest warrant and placing the occupant under arrest. The matter proceeded to trial and at
the end of the plaintiff’s case, the trial court directed the verdict for the police officers and
the plaintiff appealed. In affirming the lower court, this Court examined federal cases
involving entitlement to qualified immunity. In reliance on language contained in two U.S.
Supreme Court cases,14 this Court formulated the following qualified immunity standard as
the sole syllabus point in Bennett:
Government officials performing discretionary functions
are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known. A policeman’s lot is not so unhappy that he must
choose between being charged with dereliction of duty if he
does not arrest when he has probable cause, and being mulcted
in damages if he does.15
See Pierson v. Ray, 386 U.S. 547, 555 (1967); Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).
In Chase Securities, the Bennett holding was found to be overbroad and was
The Court had occasion to further examine the contours of qualified immunity
in Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996). In Hutchison,
a land owner brought a § 1983 civil rights claim against the city for refusing to issue a
building permit. The city maintained on appeal that even the complaint had failed to
sufficiently establish any violation on which relief could be premised. Acknowledging that
this issue was lost because the action had proceeded beyond pleading, the Court nonetheless
proceeded to provide guidance in accord with the U.S. Supreme Court’s position that there
be early resolution of cases in which the defense of immunity is raised. Id. at 147, 479
S.E.2d 657. Particular emphasis was placed on the holding in Mitchell v. Forsyth, 472 U.S.
511 (1985), that qualified immunity, as an entitlement not to stand trial in certain
circumstances, “is an immunity from suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Id.
at 526 (emphasis in original). This reasoning underlies the following holding in syllabus
point one of Hutchison:
The ultimate determination of whether qualified or
statutory immunity bars a civil action is one of law for the court
to determine. Therefore, unless there is a bona fide dispute as
to the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified
immunity are ripe for summary disposition.
clarified as only applying to qualified immunity and not absolute immunity. 188 W.Va. at
361-62 n. 14, 424 S.E.2d at 596-97 n. 14.
The Court in Hutchison further observed that the general test as announced in
Bennett had been refined in State v. Chase Securities, Inc., making it clear that immunity
does not extend to fraudulent, malicious or otherwise oppressive acts of public officials. The
Court concluded in Hutchison that the question to determine entitlement to qualified
immunity in the absence of such wrongdoing centers on “whether an objectively reasonable
official, situated similarly to the defendant, could have believed that his conduct did not
violate the plaintiff’s constitutional rights, in light of clearly established law and the
information possessed by the defendant at the time of the allegedly wrongful conduct[.]”
198 W.Va. 149, 479 S.E.2d at 659. Thereafter, the elements of the standard announced in
Bennett were separated into the following two inquiries:
(1) does the alleged conduct set out a constitutional or statutory
(2) were the constitutional standards clearly
established at the time in question?
Id. Further elaboration of this two-part inquiry appears in Hutchison as follows:
The threshold inquiry is, assuming that the plaintiff’s
assertions of facts are true, whether any allegedly violated right
was clearly established. To prove that a clearly established right
has been infringed upon, a plaintiff must do more than allege
that an abstract right has been violated. Instead, the plaintiff
must make a “particularized showing” that a “reasonable official
would understand that what he is doing violated that right” or
that “in the light of preexisting law the unlawfulness” of the
action was “apparent.” Anderson v. Creighton, 483 U.S. 635,
640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Indeed,
some courts hold that an “official may not be charged with
knowledge that his or her conduct was unlawful unless it has
been previously identified as such.” Warner v. Graham, 845
F.2d 179, 182 (8th Cir.1988). But, for a right to be clearly
established, it is not necessary that the very actions in question
previously have been held unlawful. Anderson v. Creighton,
483 U.S. at 640, 107 S.Ct. at 3039.
Id. at n. 11.
While considering a Ninth Circuit case relative to a civil rights claim based on
excessive use of force, the U.S. Supreme Court expounded on the application of the two-part
inquiry recognized above in Hutchison relevant to qualified immunity in Saucier v. Katz,
533 U.S. 194 (2001), overruled on other grounds, 555 U.S. 223 (2009), see n. 17, infra.
The Saucier case was filed by a demonstrator who was arrested by military police after the
demonstrator attempted to unfurl a banner at a public event where the U.S. Vice President
was speaking. The suit alleged that the arrest involved excessive use of force by the officers
in violation of his Fourth Amendment rights. The officers raised the defense of qualified
immunity and moved for summary judgment. The district court denied the motion, finding
a dispute of a material fact remained as to whether excessive force was used by the officer
removing the demonstrator from the crowd. The Ninth Circuit affirmed, summarily finding
that the first step of the qualified immunity test was satisfied, that is, the facts alleged
demonstrated a constitutional violation. As to the second step of the qualified immunity
inquiry – whether the constitutional standards were clearly established at the time in question
– the Ninth Circuit concluded it should be answered by applying the same test the U.S.
Supreme Court set forth in Graham v. Connor, 490 U.S. 386 (1989)16 for assessing whether
excessive force was reasonable under the circumstances in suits claiming excessive use of
force by police officers.
The U.S. Supreme Court ruled in Saucier that the two matters are completely
distinct, serve different purposes and are analyzed under separate, established standards. As
discussed in Saucier, excessive force claims are tested under objective standards of
reasonableness as set forth in Graham v. Connor. This test does not conflict with or
overshadow the distinctly different test which applies to qualified immunity matters initially
established in Harlow v. Fitzgerald and later refined in Anderson v. Creighton, 483 U.S. 635
(1987), and Siegert v. Gilley, 500 U.S. 226 (1991), and adopted by this Court in Hutchison.
The Court in Saucier fashioned the following two-prong test that a court required to rule on
the qualified immunity issue must consider:
(1) Taken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?
The objective test for excessive force claims as stated in Graham is:
“[W]hether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.”
490 U.S. at 397.
(2) If a violation could be made out on a favorable view
of the parties’ submissions, the next, sequential step is to ask
whether the right was clearly established[, that is] it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.
533 U.S. at 201-202.17 The Court in Saucier went on to explain that qualified immunity
should operate “to protect officers from the sometimes ‘hazy border between excessive and
acceptable force,’ and to ensure that before they are subjected to suit, officers are on notice
their conduct is unlawful.” 533 U.S. at 206 (internal citation omitted). Any inquiry relative
to the reasonableness of the force used under the circumstances is of no moment to the trial
court when deciding the question of qualified immunity. When the qualified immunity
defense is raised in cases based on use of excessive force and the facts as alleged represent
a constitutional violation, the pivotal inquiry becomes whether the officers were on notice
that their conduct was unlawful.
Although decided in the context of an excessive force claim, the Saucier test
applies equally to any case grounded on a § 1983 civil rights claim in which public officers
raise a qualified immunity defense. The test set forth in Saucier furnishes added guidance
on the analysis of the relevant factors a trial court must consider to determine whether public
The test as announced in Saucier required rigid adherence to the order in
which the two-step analysis be conducted. Thus if the facts did not reveal a constitutional
violation, then immunity applied. That mandate was overruled in the later case of Pearson
v. Callahan, 555 U.S. 223, 236 (2009), leaving the order of consideration of the two relevant
inquiries up to the discretion of the trial courts.
officers are entitled to be “shielded from liability for civil damages” due to qualified
immunity. Bennett, 178 W.Va. at 500, 361 S.E.2d at 465. It also is in keeping with the
guidance the Court previously provided in Hutchison regarding the two-part inquiry inherent
in qualified immunity determinations. Accordingly, we hold that a public officer is entitled
to qualified immunity from civil damages for performance of discretionary functions where:
(1) a trial court finds the alleged facts, taken in the light most favorable to the party asserting
injury, do not demonstrate that the officer’s conduct violated a constitutional right; or (2) a
trial court finds that the submissions of the parties could establish the officer’s conduct
violated a constitutional right but further finds that it would be clear to any reasonable
officer that such conduct was lawful in the situation confronted. Whenever the public
officer’s conduct appears to infringe on constitutional protections, the lower court must
consider both whether the officer’s conduct violated a constitutional right as well as whether
the officer’s conduct was unlawful. Pursuant to our holding in Hutchison, unless there is
a bona fide dispute as to predicate facts concerning these fundamental qualified immunity
elements, the ultimate determination of immunity is a question of law which is ripe for
summary disposition before trial because qualified immunity affords immunity from suit
rather than just a defense to liability. 198 W.Va. at 149, 479 S.E.2d at 659.18 Being subject
to interlocutory appeal, a trial court’s pretrial ruling involving the existence of qualified
Hutchison provides the further instruction that “it is the jury, not the judge,
who must decide the disputed . . . facts that underlie the immunity determination, but it is
solely the prerogative of the court to make the ultimate legal conclusion.” Id.
immunity must clearly set out factual findings sufficient to permit meaningful appellate
review of the issues herein identified. Compare Syl. Pt. 3, Fayette County National Bank
v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997) (“[A] circuit court’s order granting summary
judgment must set out factual findings sufficient to permit meaningful appellate review.
Findings of fact, by necessity, include those facts which the circuit court finds relevant,
determinative of the issues and undisputed.”).
Turning to the case at hand, the trial court’s order denying summary judgment
contained a cursory ruling that “Upon viewing the facts in the light most favorable to the
Plaintiff, and for reasons stated on the record, the Motion for Summary Judgment is hereby
DENIED.” Review of the ruling may nonetheless proceed because the record contains the
transcript of the November 4, 2010, hearing on the motion for summary judgment reflecting
the lower court’s essential reason for denying the motion. The lower court’s ruling from the
bench is as follows:
You know, the mere fact that a police officer strikes
somebody doesn’t necessarily cause me to condemn them. I
mean, that’s better than shooting them.
We’re not dealing with – These places at night aren’t tea
parties. These places are tough, and you take it down, and you
resolve the problem, and you sort it out later. Just about every
police officer that I know has been sued.
And there was – At least at some point in time there that
night, there was a problem. It was resolved, and now we have
a lawsuit over it.
You have a right to resist an unlawful arrest. If someone
comes up here and tells me to lay down on the floor, I can lay
down on the floor, or I can stand up.
If I cower and lay down on the floor, I’m all right. If I
take the position that, “You don’t have the right to tell me to do
that,” I can expect a busted nose.
But the question is, “Is it reasonable that my nose got
busted?” I don’t know.
Now, that opens the door to, “Is it wrong? Was a wrong
being committed? Did it – Was it – Should he have his head
whacked with a pistol?” Probably not.
Was it wrong to do it? I don’t know. . . .
Is there qualified immunity? Well, then I have to decide
whether or not I believe that the act was a wrongful act, and I
don’t know. . . . I believe that reasonable minds could come to
different conclusions about each and every issue that you have
raised in this case.
I believe that this is one of those cases that should better
be decided on a motion for a directed verdict, as opposed to a
motion for summary judgment, and, accordingly, your motion
that for summary judgment will be denied on each of the
grounds you have cited in your brief.
It is far from clear what facts the lower court relied upon to determine that the
officer’s conduct violated a constitutional right. Nor has our review of the record revealed
any disputed predicate facts regarding this factor. There is no dispute that the meeting of
the young men in the two vehicles initially was confrontational and included shouting and
cursing between the two groups. It is also uncontested that the incident occurred at 3 a.m.
at the drive-thru of a restaurant which was open and serving food to the public. Likewise,
there is no question that the officers saw someone running toward what appeared to be a
fracas, and that two of the six males were carrying objects that could serve as weapons.
Moreover, there is no dispute that the officers arrived at the scene – as the Appellee testified
– “about that time” the hostility between the two groups was abating. Thus the facts
support that the officers’ investigation of the incident was warranted,19 and Appellee has
demonstrated no constitutional basis for failing to comply with the investigation.
Nevertheless, the lower court could have assumed that a violation of a constitutional
protection was implicated solely because force was used by a public officer. The Saucier
Court deduced the same by stating that a constitutional violation “could have occurred
under the facts alleged based simply on the general rule prohibiting excessive force.” 533
U.S. at 207 (emphasis added). This leads to the second inquiry, not undertaken by the lower
court at the hearing, of whether in this case the general prohibition against excessive force
was contravened by the circumstances the officers faced.
The circumstances confronted in the present case provide adequate grounds
for the a reasonable law-enforcement officer to have believed that use of force was justified
See W.Va. Code § 8-14-3 (1990) (mandatory duty of municipal lawenforcement officers to enforce the criminal laws of the state within the municipality; failure
to discharge duty subjects officer to removal for official misconduct).
in performance of his duties. A reasonable officer in the same situation – arriving at the
scene of what appeared to be a hostile confrontation of six young men who were yelling and
cursing at one another in a public area with two of the young men visibly carrying objects
which could serve as weapons – could have believed a crime was in progress or about to be
committed and deduced that steps needed to be taken to diffuse the situation. Ordering the
group to the ground appears to be an appropriate law-enforcement effort to gain control of
such an uncertain situation. Once Appellee refused to comply, a reasonable officer may
have believed the refusal to be an attempt to obstruct the officer from performing an
investigation to determine whether any criminal activity was involved.20 Moreover, using
force as the method to obtain compliance with the order to lie flat on the ground so that the
situation could be fairly assessed by law enforcement was not unreasonable in the
The officer insisting on compliance with his order to get on the ground would
not have known the extent of the threat imposed by the group, whether there were others
outside of the group who would pose a larger threat to securing the situation, or how much
of a risk the group posed to the public, including those in line at the drive-thru and those
See W.Va. Code § 61-5-17 (1923) (providing the criminal offense of
obstructing a law-enforcement officer).
Although Appellee had a soft cast on his arm, it was not alleged that the cast
would have interfered with his ability to fully comply with the officer’s directive.
working in the restaurant. It goes without saying that the officers’ own safety may have
been at stake. Under these circumstances, a reasonable officer may have determined that
force was necessary. As the U.S. Supreme Court recognized in Graham v. Connor, “[o]ur
Fourth Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” 490 U.S. at 396. Significantly, we know of no basis
– and Appellee points to none – on which to conclude that a reasonable officer would be on
notice under these circumstances that the conduct complained of was unlawful. Moreover,
a contrary conclusion would leave law-enforcement officers acting at their peril in such
uncertain situations where quick action is often required. As the Fourth Circuit recognized
in Maciariello v. Sumner, 973 F.2d 295, qualified immunity should serve to shield law
enforcement officers from “bad guesses in gray areas; they are liable for transgressing bright
lines.” Id. at 298. No bright lines exist in this case.
Based upon our analysis, there is no dispute with regard to any of the facts
relevant to the qualified immunity determination which would warrant support for the lower
court’s position to forego deciding the immunity issue at the summary judgment stage.22
Our review of the facts and circumstances in the record support finding qualified immunity
Although our decision makes it unnecessary to reach the second argument
raised in this appeal, circuit court orders relative to dispositive motions should adequately
address all reasons underlying the decision reached in order to preserve the matters for
from suit, either because no constitutional violation is established by the facts alleged or
because a reasonable officer confronting the same situation – without notice to the contrary
– would have considered the action lawful. Consequently, the order of the lower court is
reversed. Given the limited scope of this interlocutory appeal on the sole issue of qualified
immunity, the case is remanded for any proceedings which may be needed to address any
issues not dealing with qualified immunity.
For the foregoing reasons, the November 5, 2010, order denying summary
judgment is reversed, and the case is remanded for any further proceedings which may be
required regarding matters to which qualified immunity may not extend.
Reversed and remanded.