UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-2224
JOSEPH LEE CARAWAY,
Plaintiff - Appellant,
v.
CITY OF ELIZABETH CITY, NORTH CAROLINA; JAMIE LACOMBE; CATHY HEWITT,
Defendants - Appellees.
No. 20-1294
CITY OF ELIZABETH CITY, NORTH CAROLINA; JAMIE LACOMBE; CATHY HEWITT,
Appeals from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. W. Earl Britt, Senior District Judge. (2:17-cv-00020-BR)
Submitted: April 19, 2021 Decided: May 4, 2021 Before GREGORY, Chief Judge, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frederick H. Nelson, David J. Markese, AMERICAN LIBERTIES INSTITUTE, Orlando, Florida, for Appellant. Dan M. Hartzog, Jr., Katherine M. Barber-Jones, HARTZOG LAW GROUP LLP, Cary, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
Joseph Lee Caraway filed a 42 U.S.C. § 1983 action against the City of Elizabeth
City, North Carolina (the “City”) and two members of its police force, Cathy Hewitt and
Jamie LaCombe (collectively, “Defendants”), alleging violations of his First Amendment
rights in connection with his arrest for amplified preaching during the 2016 North Carolina
Potato Festival (the “Festival”). Caraway also raised facial challenges to § 91.03(E) of the
City’s Code of Ordinances (the “Ordinance”) and the City’s Special Event Policy (the
“Policy”) and as-applied challenges to the Policy. The district court granted summary
judgment in favor of Defendants on Caraway’s facial challenges and, during a jury trial on
the remaining claims, granted judgment as a matter of law in favor of Defendants under
Fed. R. Civ. P. 50(a). The court later granted attorney’s fees in favor of Defendants with
respect to Caraway’s facial challenges, pursuant to 42 U.S.C. § 1988.
In these consolidated appeals, Caraway challenges the district court’s Rule 50(a)
ruling on his claims against Hewitt and Caraway and the grant of attorney’s fees in favor
of Defendants. Finding no reversible error, we affirm.
We review the district court’s grant of a Rule 50(a) motion de novo. Horne v.
WTVR, LLC, 893 F.3d 201, 210 (4th Cir. 2018), cert. denied, 139 S. Ct. 823 (2019).
Judgment as a matter of law is appropriate “only if, viewing the evidence in a light most
favorable to the non-moving party and drawing every legitimate inference in that party’s
favor, the only conclusion a reasonable jury could have reached is one in favor of the
moving party.” Huskey v. Ethicon, Inc., 848 F.3d 151, 156 (4th Cir. 2017) (alteration and
internal quotation marks omitted). In other words, the court may grant judgment as a matter
3 of law “only if the evidence is legally insufficient to support the jury’s verdict.” Bresler v.
Wilmington Tr. Co., 855 F.3d 178, 196 (4th Cir. 2017). “[W]e may not substitute our
judgment for that of the jury or make credibility determinations” in evaluating a Rule 50
motion. Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996).
In relevant part, the district court concluded that Hewitt and LaCombe were entitled
to qualified immunity, as a matter of law, on Caraway’s as-applied First Amendment
challenges. “Qualified immunity protects officers who commit constitutional violations
but who, in light of clearly established law, could reasonably believe that their actions were
lawful.” Pegg v. Herrnberger, 845 F.3d 112, 117 (4th Cir. 2017) (internal quotation marks
omitted). The “qualified immunity analysis typically involves two inquiries: (1) whether
the plaintiff has established the violation of a constitutional right, and (2) whether that right
was clearly established at the time of the alleged violation.” Raub v. Campbell, 785 F.3d
876, 881 (4th Cir. 2015).
The parties agree that, in addressing the court’s Rule 50(a) ruling, the dispositive
issue is whether probable cause existed to arrest Caraway. “An officer may arrest without
a warrant any person who the officer has probable cause to believe has committed a
criminal offense . . . in the officer’s presence.” N.C. Gen. Stat. § 15A-401(b)(1); see Glenn-
Robinson v. Acker, 538 S.E.2d 601, 609-10 (N.C. Ct. App. 2000). “[P]robable cause exists
where the facts and circumstances within the officers’ knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing
that the [suspect] had committed or was committing an offense.” Cloaninger v. McDevitt,
555 F.3d 324, 334 (4th Cir. 2009) (alteration and internal quotation marks omitted).
4 “Whether probable cause exists depends upon the reasonable conclusion to be drawn from
the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543
U.S. 146, 152 (2004). “[F]or probable cause to exist, there need only be enough evidence
to warrant the belief of a reasonable officer that an offense has been or is being committed;
evidence sufficient to convict is not required.” Durham v. Horner, 690 F.3d 183, 190 (4th
Cir. 2012) (internal quotation marks omitted).
We have thoroughly reviewed the trial record in view of these standards and
conclude that the district court did not err in determining that probable cause existed, as a
matter of law, to arrest Caraway for the North Carolina offense of resist, delay, or obstruct,
a Class 2 misdemeanor. See N.C. Gen. Stat. § 14-223; State v. Humphreys, 853 S.E.2d
789, 795 (N.C. Ct. App. 2020). We are unpersuaded by Caraway’s arguments that he did
not resist, delay, or obstruct Hewitt in the exercise of her duties. See State v. Cornell, 729
S.E.2d 703, 706 (N.C. Ct. App. 2012); Burton v. City of Durham, 457 S.E.2d 329, 332
(N.C. Ct. App. 1995); State v. Singletary, 327 S.E.2d 11, 12-14 (N.C. Ct. App. 1985); State
v. Leigh, 179 S.E.2d 708, 710-11 (N.C. 1971); see also Witt v. W. Va. State Police, Troop
2, 633 F.3d 272, 276 (4th Cir. 2011) (discussing appropriate use of video evidence in
analogous summary judgment context). We also readily conclude that a reasonable officer
could have determined, based on the undisputed facts before Hewitt, that Caraway acted
willfully. See State v. Peters, 804 S.E.2d 811, 816 (N.C. Ct. App. 2017) (defining
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-2224
JOSEPH LEE CARAWAY,
Plaintiff - Appellant,
v.
CITY OF ELIZABETH CITY, NORTH CAROLINA; JAMIE LACOMBE; CATHY HEWITT,
Defendants - Appellees.
No. 20-1294
CITY OF ELIZABETH CITY, NORTH CAROLINA; JAMIE LACOMBE; CATHY HEWITT,
Appeals from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. W. Earl Britt, Senior District Judge. (2:17-cv-00020-BR)
Submitted: April 19, 2021 Decided: May 4, 2021 Before GREGORY, Chief Judge, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frederick H. Nelson, David J. Markese, AMERICAN LIBERTIES INSTITUTE, Orlando, Florida, for Appellant. Dan M. Hartzog, Jr., Katherine M. Barber-Jones, HARTZOG LAW GROUP LLP, Cary, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2 PER CURIAM:
Joseph Lee Caraway filed a 42 U.S.C. § 1983 action against the City of Elizabeth
City, North Carolina (the “City”) and two members of its police force, Cathy Hewitt and
Jamie LaCombe (collectively, “Defendants”), alleging violations of his First Amendment
rights in connection with his arrest for amplified preaching during the 2016 North Carolina
Potato Festival (the “Festival”). Caraway also raised facial challenges to § 91.03(E) of the
City’s Code of Ordinances (the “Ordinance”) and the City’s Special Event Policy (the
“Policy”) and as-applied challenges to the Policy. The district court granted summary
judgment in favor of Defendants on Caraway’s facial challenges and, during a jury trial on
the remaining claims, granted judgment as a matter of law in favor of Defendants under
Fed. R. Civ. P. 50(a). The court later granted attorney’s fees in favor of Defendants with
respect to Caraway’s facial challenges, pursuant to 42 U.S.C. § 1988.
In these consolidated appeals, Caraway challenges the district court’s Rule 50(a)
ruling on his claims against Hewitt and Caraway and the grant of attorney’s fees in favor
of Defendants. Finding no reversible error, we affirm.
We review the district court’s grant of a Rule 50(a) motion de novo. Horne v.
WTVR, LLC, 893 F.3d 201, 210 (4th Cir. 2018), cert. denied, 139 S. Ct. 823 (2019).
Judgment as a matter of law is appropriate “only if, viewing the evidence in a light most
favorable to the non-moving party and drawing every legitimate inference in that party’s
favor, the only conclusion a reasonable jury could have reached is one in favor of the
moving party.” Huskey v. Ethicon, Inc., 848 F.3d 151, 156 (4th Cir. 2017) (alteration and
internal quotation marks omitted). In other words, the court may grant judgment as a matter
3 of law “only if the evidence is legally insufficient to support the jury’s verdict.” Bresler v.
Wilmington Tr. Co., 855 F.3d 178, 196 (4th Cir. 2017). “[W]e may not substitute our
judgment for that of the jury or make credibility determinations” in evaluating a Rule 50
motion. Price v. City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996).
In relevant part, the district court concluded that Hewitt and LaCombe were entitled
to qualified immunity, as a matter of law, on Caraway’s as-applied First Amendment
challenges. “Qualified immunity protects officers who commit constitutional violations
but who, in light of clearly established law, could reasonably believe that their actions were
lawful.” Pegg v. Herrnberger, 845 F.3d 112, 117 (4th Cir. 2017) (internal quotation marks
omitted). The “qualified immunity analysis typically involves two inquiries: (1) whether
the plaintiff has established the violation of a constitutional right, and (2) whether that right
was clearly established at the time of the alleged violation.” Raub v. Campbell, 785 F.3d
876, 881 (4th Cir. 2015).
The parties agree that, in addressing the court’s Rule 50(a) ruling, the dispositive
issue is whether probable cause existed to arrest Caraway. “An officer may arrest without
a warrant any person who the officer has probable cause to believe has committed a
criminal offense . . . in the officer’s presence.” N.C. Gen. Stat. § 15A-401(b)(1); see Glenn-
Robinson v. Acker, 538 S.E.2d 601, 609-10 (N.C. Ct. App. 2000). “[P]robable cause exists
where the facts and circumstances within the officers’ knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing
that the [suspect] had committed or was committing an offense.” Cloaninger v. McDevitt,
555 F.3d 324, 334 (4th Cir. 2009) (alteration and internal quotation marks omitted).
4 “Whether probable cause exists depends upon the reasonable conclusion to be drawn from
the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543
U.S. 146, 152 (2004). “[F]or probable cause to exist, there need only be enough evidence
to warrant the belief of a reasonable officer that an offense has been or is being committed;
evidence sufficient to convict is not required.” Durham v. Horner, 690 F.3d 183, 190 (4th
Cir. 2012) (internal quotation marks omitted).
We have thoroughly reviewed the trial record in view of these standards and
conclude that the district court did not err in determining that probable cause existed, as a
matter of law, to arrest Caraway for the North Carolina offense of resist, delay, or obstruct,
a Class 2 misdemeanor. See N.C. Gen. Stat. § 14-223; State v. Humphreys, 853 S.E.2d
789, 795 (N.C. Ct. App. 2020). We are unpersuaded by Caraway’s arguments that he did
not resist, delay, or obstruct Hewitt in the exercise of her duties. See State v. Cornell, 729
S.E.2d 703, 706 (N.C. Ct. App. 2012); Burton v. City of Durham, 457 S.E.2d 329, 332
(N.C. Ct. App. 1995); State v. Singletary, 327 S.E.2d 11, 12-14 (N.C. Ct. App. 1985); State
v. Leigh, 179 S.E.2d 708, 710-11 (N.C. 1971); see also Witt v. W. Va. State Police, Troop
2, 633 F.3d 272, 276 (4th Cir. 2011) (discussing appropriate use of video evidence in
analogous summary judgment context). We also readily conclude that a reasonable officer
could have determined, based on the undisputed facts before Hewitt, that Caraway acted
willfully. See State v. Peters, 804 S.E.2d 811, 816 (N.C. Ct. App. 2017) (defining
willfulness); see also State v. Crockett, 767 S.E.2d 78, 85 (N.C. Ct. App. 2014) (observing
that willfulness often must be inferred circumstantially). Finally, while “the offense
presupposes lawful conduct of the officer in discharging or attempting to discharge a duty
5 of his office,” State v. Sinclair, 663 S.E.2d 866, 870 (N.C. Ct. App. 2008), Caraway’s
challenges to the lawfulness of Hewitt’s conduct is in equal parts forfeited, see Fed. R. Civ.
P. 16(d), (e); McLean Contracting Co. v. Waterman Steamship Corp., 277 F.3d 477, 480
(4th Cir. 2002) (“Failure to identify a legal issue worthy of trial in the pretrial conference
or pretrial order waives the party’s right to have the issue tried.”); In re Under Seal, 749
F.3d 276, 285 (4th Cir. 2014) (“Our settled rule is simple: absent exceptional
circumstances, we do not consider issues raised for the first time on appeal.” (alterations
and internal quotation marks omitted)), and refuted by the undisputed trial evidence.
Turning to Caraway’s challenge to the attorney’s fees award, we review for abuse
of discretion the district court’s decision to award attorney’s fees to the prevailing
defendants under 42 U.S.C. § 1988. Unus v. Kane, 565 F.3d 105, 116 (4th Cir. 2009).
Pursuant to 42 U.S.C. § 1988(b), a district court “may allow the prevailing party [in a
§ 1983 action], other than the United States, a reasonable attorney’s fee as part of the
costs.” A prevailing defendant in a civil rights suit is entitled to recover attorney’s fees
under § 1988 only if “the plaintiff’s claim ‘was frivolous, unreasonable, or groundless, or
. . . the plaintiff continued to litigate after it clearly became so.’” Lotz Realty Co. v. U.S.
Dep’t of Housing & Urban Dev., 717 F.2d 929, 931 (4th Cir. 1983) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). Where “the plaintiff
asserted both frivolous and non-frivolous claims,” the court may award attorney’s fees
under § 1988 “only for costs that the defendant would not have incurred but for the
frivolous claims.” Fox v. Vice, 563 U.S. 826, 829 (2011).
6 District courts must be careful to “resist the understandable temptation to engage in
post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his
action must have been unreasonable or without foundation.” Unus, 565 F.3d at 127
(internal quotation marks omitted). Instead, “awarding attorney[’s] fees to a prevailing
defendant is a conservative tool, to be used sparingly in those cases in which the plaintiff
presses a claim which he knew or should have known was groundless, frivolous, or
unreasonable.” EEOC v. Great Steaks, Inc., 667 F.3d 510, 517 (4th Cir. 2012) (alteration
and internal quotation marks omitted). “[A] decision whether attorney[’s] fees should be
awarded to a prevailing defendant under the Christiansburg standard is peculiarly within
the province of the trial judge, who is on the scene and able to assess the oftentimes minute
considerations which weigh in the initiation of a legal action.” EEOC v. Propak Logistics,
Inc., 746 F.3d 145, 151 (4th Cir. 2014) (internal quotation marks omitted). We therefore
“accord great deference to the district court’s conclusion that the [plaintiff’s] actions were
unreasonable.” Id.
Here, the district court appropriately concluded at summary judgment that Caraway
lacked standing to raise a facial challenge the Ordinance and Policy—even under the
relaxed standards for establishing standing applicable to facial challenges based on
overbreadth. See Am. Entertainers, LLC v. City of Rocky Mount, 888 F.3d 707, 714 (4th
Cir. 2018) (discussing overbreadth doctrine); Giovani Carandola, Ltd. v. Bason, 303 F.3d
507, 512 (4th Cir. 2002) (same). While standing is independent of the merits of a claim,
Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 429 (4th Cir. 2007),
7 the court’s standing analysis relied on conclusions that highlighted the lack of substantive
foundation for Caraway’s facial claims.
Ultimately, we have thoroughly reviewed the parties’ arguments and find no error
in the district court’s conclusion that neither the Ordinance nor the Policy, on its face,
colorably attempted to regulate or restrict speech, expression, or religion. While Caraway
emphasizes the length of the district court’s standing analysis, that threshold jurisdictional
ruling, see Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 343 (4th Cir. 2017), was
complicated by the need to address the intricacies of First Amendment standing doctrines
and apply those doctrines to claims that did not squarely fit within the traditional First
Amendment rubric. We therefore conclude that Caraway’s facial First Amendment
challenges to the Policy and Ordinance were groundless and without foundation, and the
district court acted within its broad discretion in awarding attorney’s fees as to those claims.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED