UNPUBLISHED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
Plaintiff – Appellant,
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Affirmed by unpublished per curiam opinion.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/Cross- Appellant.
Unpublished opinions are not binding precedent in this circuit.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 of 42 U.S.C. § 1983 (2012). On
appeal, Defendants contend that the district court erred in
holding that they were not entitled to qualified immunity from
Smith’s excessive force claim. In his cross-appeal, Smith
contends that the district court erroneously granted summary
judgment against his false arrest claim because Defendants
lacked probable cause to arrest him.
This court has jurisdiction over this interlocutory appeal
pursuant to 28 U.S.C. § 1292(b) (2012). A district court may
permit an appeal from an order that “involves a controlling
question of law as to which there is substantial ground for
difference of opinion” and from which immediate appeal “may
advance the ultimate termination of the litigation.” Id. 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. In exercising its
discretion, this court’s jurisdiction “applies to the order
certified to the court of appeals, and is not tied to the
particular question formulated by the district court.” 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 court granted Smith’s timely request for
permission to appeal. Therefore, in these consolidated
cross-appeals, we have jurisdiction over “any issue fairly
included within the certified order.” 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 of
Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009). 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). “Conclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the non-moving party’s] case.”
4 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 because Defendants were entitled to qualified
immunity. Initially, Defendants claim that 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 conduct.”
Carroll v. Carman, 135 S. Ct. 348, 350 (2014). 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.” Id. at 200. Second, courts ask whether that
right was clearly 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. Callahan, 555 U.S. 223, 236
(2009).
5 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 the statutory or
constitutional question beyond debate.” 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 from using
excessive force to seize a free citizen.” Jones v. Buchanan,
325 F.3d 520, 527 (4th Cir. 2003). The question is whether a
reasonable officer would have determined that the degree of
force used was justified by the threat presented, an objective
inquiry “‘requir[ing] careful attention to the facts and
circumstances in each particular case,’” including “‘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 this case, the district court properly held that,
viewing the facts in the light most favorable to Smith, an
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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
Plaintiff – Appellant,
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/Cross- Appellant.
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 of 42 U.S.C. § 1983 (2012). On
appeal, Defendants contend that the district court erred in
holding that they were not entitled to qualified immunity from
Smith’s excessive force claim. In his cross-appeal, Smith
contends that the district court erroneously granted summary
judgment against his false arrest claim because Defendants
lacked probable cause to arrest him.
This court has jurisdiction over this interlocutory appeal
pursuant to 28 U.S.C. § 1292(b) (2012). A district court may
permit an appeal from an order that “involves a controlling
question of law as to which there is substantial ground for
difference of opinion” and from which immediate appeal “may
advance the ultimate termination of the litigation.” Id. 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. In exercising its
discretion, this court’s jurisdiction “applies to the order
certified to the court of appeals, and is not tied to the
particular question formulated by the district court.” 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 court granted Smith’s timely request for
permission to appeal. Therefore, in these consolidated
cross-appeals, we have jurisdiction over “any issue fairly
included within the certified order.” 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 of
Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009). 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). “Conclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the non-moving party’s] case.”
4 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 because Defendants were entitled to qualified
immunity. Initially, Defendants claim that 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 conduct.”
Carroll v. Carman, 135 S. Ct. 348, 350 (2014). 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.” Id. at 200. Second, courts ask whether that
right was clearly 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. Callahan, 555 U.S. 223, 236
(2009).
5 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 the statutory or
constitutional question beyond debate.” 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 from using
excessive force to seize a free citizen.” Jones v. Buchanan,
325 F.3d 520, 527 (4th Cir. 2003). The question is whether a
reasonable officer would have determined that the degree of
force used was justified by the threat presented, an objective
inquiry “‘requir[ing] careful attention to the facts and
circumstances in each particular case,’” including “‘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 this case, the district court properly held that,
viewing the facts in the light most favorable to Smith, an
objectively reasonable officer could conclude that Defendants’
conduct constituted excessive force. Regarding the first Graham
6 factor, Defendants had, at most, reason to suspect that Smith
might be guilty of misdemeanor assault. See S.C. Code Ann.
§ 16-3-600(E)(1) (2014) (requiring only “attempt to injure
another person”). 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 be characterized as instinctive, and we have twice
concluded that such reactions do not constitute active
resistance. 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 312, 318 (4th Cir. 2013)
(internal quotation marks omitted). The same rule applied to
Fourteenth Amendment claims made by pretrial detainees. Orem v.
7 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 in determining whether force was
excessive.” Jones, 325 F.3d at 530. “Faithful adherence to
th[e] established fourth amendment standard of objective
reasonableness when dealing with claims of 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 failed because she
offered “minimal evidence” to support it. 164 F.3d at 219 n.3.
Finding no support for Defendants’ contention that suffering
only de minimis injuries bars one from 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). “[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 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.” S.C. Code Ann.
§ 16-3-600(E)(1). “While words alone do 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. Therefore, we conclude
that the district court did not err in granting Defendants’
motion for summary judgment on this claim.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and judgment would not aid the decisional process.
AFFIRMED