Steve Smith v. N. Murphy, No. 14-1918 (4th Cir. 2015)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1918 STEVE RANDALL SMITH, Plaintiff – Appellee, v. N. C. MURPHY; CHARLES GRANT; T. J. MURPHY; ALEX UNDERWOOD, Defendants – Appellants, and JAMIE MITCHELL; RICHARD SMITH, Defendants. No. 14-2208 STEVE RANDALL SMITH, Plaintiff – Appellant, v. N. C. MURPHY; CHARLES GRANT; T. J. MURPHY; ALEX UNDERWOOD, Defendants - Appellees. Appeals from the United States District Court for the District of South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Senior District Judge. (0:11-cv-02395-JFA) Submitted: September 30, 2015 Decided: November 20, 2015 Before KING, WYNN, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew F. Lindemann, Robert D. Garfield, Steven R. Spreeuwers, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellants/Cross-Appellees. J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South Carolina, for Appellee/CrossAppellant. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: These consolidated appeals are cross-appeals from the partial grant of summary judgment in favor of Torrey Murphy, Charles Grant, William Murphy, and Alex Underwood * (collectively, “Defendants”). In his complaint, Steve Randall Smith alleged that Defendants falsely arrested him and used excessive force against him, in violation appeal, Defendants of contend 42 that U.S.C. the § 1983 district (2012). court On erred in holding that they were not entitled to qualified immunity from Smith’s excessive contends that the judgment against force claim. district his In court false his cross-appeal, erroneously arrest claim granted because Smith summary Defendants lacked probable cause to arrest him. This court has jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (2012). permit an appeal from an order that A district court may “involves a controlling question of law as to which there is substantial ground for difference of opinion” and from which immediate advance the ultimate termination of the litigation.” appeal Id. “may This court “may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten * Underwood is the Sheriff of Chester County, and was sued under South Carolina law in his official capacity. 3 days after the entry of the order.” Id. discretion, “applies certified this to court’s the court jurisdiction of appeals, and In exercising its is to not the tied particular question formulated by the district court.” order to the Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996). In this case, at Smith’s request, the district court certified its summary judgment order for immediate appeal under § 1292(b). This permission to cross-appeals, court granted appeal. we have Smith’s timely request in these consolidated over “any Therefore, jurisdiction included within the certified order.” issue for fairly Yamaha Motor Corp., 516 U.S. at 205. Turning to the merits, we review the grant or denial of summary judgment de novo. Cloaninger ex rel. Estate Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009). of All facts and reasonable inferences are viewed “in the light most favorable to the non-moving party.” Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). Summary judgment is only appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). allegations evidence in do not suffice, support of nor [the 4 “Conclusory or speculative does a non-moving mere scintilla party’s] of case.” Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks omitted). First, we consider Defendants’ claim that the district court should have granted summary judgment on Smith’s excessive force claim immunity. because Defendants Initially, were Defendants entitled claim to that qualified no clearly established right prevented them from exercising force to take Smith to the ground, place him in handcuffs, or restrain him, where he actively resisted arrest. Qualified immunity protects all government officials except those who violate a “statutory or constitutional right that was clearly established at the time of the challenged Carroll v. Carman, 135 S. Ct. 348, 350 (2014). conduct.” Determining whether qualified immunity is appropriate is a two-step inquiry. Saucier v. Katz, 533 U.S. 194 (2001). First, courts consider “whether a constitutional right would have been violated on the facts alleged.” right was Id. at 200. clearly Second, courts ask whether that established at the time of the alleged violation, such that “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. Courts have the discretion to decide which of the steps to address first, based on the facts and circumstances of the case at hand. Pearson v. (2009). 5 Callahan, 555 U.S. 223, 236 A right is clearly established only if “a reasonable official would understand that what he is doing violates that right.” Carroll, 135 S. Ct. at 350. (internal quotation marks omitted). While “a case directly on point” is not required, “existing precedent must have placed constitutional question beyond debate.” the statutory or Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). Relevant to this case, “[t]he Fourth Amendment prohibition on unreasonable seizures bars police officers excessive force to seize a free citizen.” 325 F.3d 520, 527 (4th Cir. 2003). reasonable officer would have from using Jones v. Buchanan, The question is whether a determined that the degree of force used was justified by the threat presented, an objective inquiry “‘requir[ing] circumstances in careful each attention particular to case,’” the facts including and “‘the severity of the crime at issue,’ whether the ‘suspect poses an immediate threat to the safety of the officers or others,’ and whether the suspect ‘is actively resisting arrest or attempting to evade arrest by flight.’” Id. at 527 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). In viewing this the case, facts the in the district light court most properly favorable to held that, Smith, an objectively reasonable officer could conclude that Defendants’ conduct constituted excessive force. 6 Regarding the first Graham factor, Defendants had, at most, reason to suspect that Smith might be guilty of misdemeanor assault. § 16-3-600(E)(1) (2014) another person”). (requiring See S.C. Code Ann. only “attempt to injure The second Graham factor likewise weighs in favor of Smith, as Defendants had no reason to believe that Smith would react violently or incite a riot if confronted by officers. As for the third Graham factor, resistance from Smith could characterized be concluded resistance. that such as instinctive, reactions do and not we have twice constitute active See Smith v. Ray, 781 F.3d 95, 103 (4th Cir. 2015) (citing Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994)). Altogether, viewed in the light most favorable to Smith, the facts could support a finding of excessive force. Even so, Defendants contend, the fact that Smith suffered only de minimis injuries absolves them from liability under the clearly established law at the time of the incident. Prior to Wilkins v. Gaddy, 559 U.S. 34 (2010), this court “consistently held that a plaintiff could not prevail on an excessive force claim [under the Eighth Amendment] absent the most extraordinary circumstances, if he had not suffered more than a de minimis injury.” Hill v. Crum, 727 F.3d (internal quotation marks omitted). 312, 318 (4th Cir. The same rule applied to Fourteenth Amendment claims made by pretrial detainees. 7 2013) Orem v. Rephann, 523 F.3d 442, 447-48 (4th Cir. 2008), abrogated by Wilkins, 559 U.S. 39. For Fourth Amendment excessive force claims, however, the severity of injury resulting from the force used has always been but one “consideration excessive.” th[e] in determining Jones, 325 F.3d at 530. established reasonableness fourth when dealing amendment with whether force was “Faithful adherence to standard claims of of objective excessive force during arrest will not make police officers subject to § 1983 liability . . . for every push and shove they make.” Martin v. Gentile, 849 F.2d 863, 869 (4th Cir. 1988) (internal quotation marks omitted). Nor, however, does it absolve police officers of liability so long as their conduct, however unreasonable, only results in de minimis injuries. See Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (explaining that the question is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure”). The cases cited by Defendants do not suggest otherwise. All but one of the cases involves either prisoners or pretrial detainees, therefore implicating either the Eighth or Fourteenth Amendment, rather than the Fourth Amendment. And Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999), the free citizen case, does not demonstrate that the de minimis injury rule applies to Fourth Amendment claims; rather, it merely suggests, 8 in passing, that the plaintiff’s claim offered “minimal evidence” to support it. Finding only no de support minimis for Defendants’ injuries bars failed she 164 F.3d at 219 n.3. contention one because from that suffering asserting a Fourth Amendment excessive force claim, we conclude that the district court appropriately denied Defendants’ motion for summary judgment as to this claim. In his cross-appeal, Smith argues that the district court erroneously granted summary judgment on his federal and state false arrest claims. To demonstrate false arrest under either federal or state law, a plaintiff must show that he was arrested without probable cause. See Brown v. Gilmore, 278 F.3d 362, 367-68 (4th Cir. 2002); Law v. S. Carolina Dep’t of Corr., 368 S.C. 424, 441 (2006). need only be enough “[F]or probable cause to exist, there evidence reasonable officer that an committed; evidence to sufficient warrant offense to has convict the been is belief of or being not is a required.” Durham v. Horner, 690 F.3d 183, 190 (4th Cir. 2012) (internal quotation marks and alteration omitted). See also Law, 368 S.C. at 441 (defining probable cause as “as a good faith belief that a person is guilty of a crime when this belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise”). 9 In South Carolina, one commits assault if he “unlawfully injures another person, or offers or attempts to injure another person with the present ability to do so.” § 16-3-600(E)(1). “While words alone do S.C. Code Ann. not constitute an assault, if by words and conduct a person intentionally creates a reasonable apprehension of bodily harm, it is an assault.” State v. Sutton, 532 S.E.2d 283, 285 (S.C. 2000). Even viewing the facts in the light most favorable to Smith, we find that the district court correctly held that Defendants had probable cause to arrest Smith for misdemeanor assault. that the district court did not err Therefore, we conclude in granting Defendants’ court’s order. motion for summary judgment on this claim. Accordingly, dispense with contentions are we oral affirm the argument adequately district because presented in the the facts We and legal materials before this court and judgment would not aid the decisional process. AFFIRMED 10

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