USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1573
TONY MCKENNA,
Plaintiff - Appellee,
v.
BRISTOL VA POLICE OFFICER ALEXANDER ERICKSON; BRISTOL VA POLICE OFFICER JOSH GREEN; BRISTOL VA POLICE OFFICER CHARLES THOMAS, JR.,
Defendants - Appellants,
and
BRISTOL VA CITY POLICE DEPARTMENT; CITY OF BRISTOL; ASSISTANT COMMONWEALTH’S ATTORNEY FOR THE CITY OF BRISTOL, TIM BOYER,
Defendants.
Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:22-cv-00002-JPJ-PMS)
Submitted: January 16, 2025 Decided: February 6, 2025
Before GREGORY, WYNN, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion. USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 2 of 8
ON BRIEF: Jim H. Guynn, Jr., Christopher S. Dadak, John R. Fitzgerald, GUYNN WADDELL, P.C., Salem, Virginia, for Appellants. Tony McKenna, Appellee Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 3 of 8
PER CURIAM:
Tony McKenna filed a complaint and amended complaint under 42 U.S.C. § 1983
in state court against Bristol, Virginia, police officers Joshua Green, Alexander Erickson,
and Charles Thomas, Jr. (collectively, Appellants), and the Bristol Police Department, the
City of Bristol, and Tim Boyer (collectively, Defendants). After Appellants and
Defendants removed the action to the district court, the court dismissed several of
McKenna’s claims. Following discovery, Defendants and Appellants moved for summary
judgment on McKenna’s remaining claims, arguing in part that Appellants were entitled to
qualified immunity. The district court granted summary judgment in part, but denied
summary judgment on McKenna’s claims against Appellants for unlawful entry, false
arrest, and unlawful search in violation of the Fourth Amendment. Ultimately, the district
court granted summary judgment for McKenna on these claims, subject to a jury
determination on damages. Appellants filed a notice of interlocutory appeal of that order.
On appeal, Appellants challenge the district court’s conclusion that they were not entitled
to qualified immunity for McKenna’s claims of unlawful entry, false arrest, and unlawful
search.
“Generally, a district court’s order denying summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine.” Yates v. Terry,
817 F.3d 877, 882 (4th Cir. 2016). However, “[o]ur jurisdiction over such an appeal
extends only to a denial of qualified immunity to the extent that it turns on an issue of law.”
Id. (cleaned up). Thus, to the extent the ruling turns on issues of law, “an order rejecting
the defense of qualified immunity at either the dismissal stage or the summary judgment
3 USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 4 of 8
stage is a final judgment subject to immediate appeal.” Behrens v. Pelletier, 516 U.S. 299,
307 (1996) (cleaned up).
Qualified immunity protects “government officials performing discretionary
functions . . . insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Evaluating qualified immunity requires a
two-pronged inquiry: “whether a constitutional violation occurred and . . . whether the
right violated was clearly established” at the time of the violation. Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (en banc) (internal quotation marks omitted); see Meyers v.
Balt. Cnty., 713 F.3d 723, 731 (4th Cir. 2013). The latter prong will support immunity,
even if the officer violated an individual’s constitutional rights, “if a reasonable person in
the officer’s position could have failed to appreciate that his conduct would violate those
rights.” Meyers, 713 F.3d at 731 (internal quotation marks omitted).
“After defining the right, we ask whether it was clearly established at the time
[Appellants] acted.” Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d
892, 907 (4th Cir. 2016). “[T]he Supreme Court has explained that a clearly established
right is one that is sufficiently clear that every reasonable official would have understood
that what he is doing violates that right.” Feminist Majority Found. v. Hurley, 911 F.3d
674, 703-04 (4th Cir. 2018) (cleaned up). “In other words, existing precedent must have
placed the statutory or constitutional question beyond debate.” Tarashuk v. Givens, 53
F.4th 154, 164 (4th Cir. 2022) (internal quotation marks omitted). “This is not to say that
an official action is protected by qualified immunity unless the very action in question has
4 USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 5 of 8
previously been held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Armstrong, 810 F.3d at 907 (internal quotation marks
omitted).
Here, McKenna had a disagreement with a neighbor who took out a protective order
against McKenna. Appellants went to McKenna’s apartment to serve the protective order.
McKenna refused to provide the officers with identification; the officers stated that they
needed to identify McKenna in order to serve him with the protective order. Appellants
called the Assistant Commonwealth Attorney, Boyer, who advised them that McKenna
could be charged with obstruction of justice for refusing to comply with the officers’
requests for identification. Appellants then returned to McKenna’s apartment and he
continued to refuse to provide identification. When McKenna tried to close his door,
Thomas pushed the door open, stepped into the apartment, pulled McKenna into the
hallway, and placed McKenna under arrest for obstruction of justice. Appellants conducted
a search of McKenna pursuant to the arrest and transported McKenna to the police station.
A magistrate, however, refused to issue a warrant for obstruction of justice, and the officers
returned McKenna to his apartment.
Appellants challenge the district court’s conclusion that they were not entitled to
qualified immunity from liability for McKenna’s claims of unlawful entry, false arrest, and
unlawful search. Appellants argue that they had probable cause to believe that McKenna
obstructed justice when they arrested him because they reasonably believed they had the
duty to collect McKenna’s identifying information to serve him with the protective order.
Even if they did not have probable cause to arrest McKenna, however, Appellants argue
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that the district court erred in finding that the right was clearly established. Appellants
further argue that because the arrest was lawful, the search incident to the arrest was also
lawful.
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USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1573
TONY MCKENNA,
Plaintiff - Appellee,
v.
BRISTOL VA POLICE OFFICER ALEXANDER ERICKSON; BRISTOL VA POLICE OFFICER JOSH GREEN; BRISTOL VA POLICE OFFICER CHARLES THOMAS, JR.,
Defendants - Appellants,
and
BRISTOL VA CITY POLICE DEPARTMENT; CITY OF BRISTOL; ASSISTANT COMMONWEALTH’S ATTORNEY FOR THE CITY OF BRISTOL, TIM BOYER,
Defendants.
Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:22-cv-00002-JPJ-PMS)
Submitted: January 16, 2025 Decided: February 6, 2025
Before GREGORY, WYNN, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion. USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 2 of 8
ON BRIEF: Jim H. Guynn, Jr., Christopher S. Dadak, John R. Fitzgerald, GUYNN WADDELL, P.C., Salem, Virginia, for Appellants. Tony McKenna, Appellee Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 3 of 8
PER CURIAM:
Tony McKenna filed a complaint and amended complaint under 42 U.S.C. § 1983
in state court against Bristol, Virginia, police officers Joshua Green, Alexander Erickson,
and Charles Thomas, Jr. (collectively, Appellants), and the Bristol Police Department, the
City of Bristol, and Tim Boyer (collectively, Defendants). After Appellants and
Defendants removed the action to the district court, the court dismissed several of
McKenna’s claims. Following discovery, Defendants and Appellants moved for summary
judgment on McKenna’s remaining claims, arguing in part that Appellants were entitled to
qualified immunity. The district court granted summary judgment in part, but denied
summary judgment on McKenna’s claims against Appellants for unlawful entry, false
arrest, and unlawful search in violation of the Fourth Amendment. Ultimately, the district
court granted summary judgment for McKenna on these claims, subject to a jury
determination on damages. Appellants filed a notice of interlocutory appeal of that order.
On appeal, Appellants challenge the district court’s conclusion that they were not entitled
to qualified immunity for McKenna’s claims of unlawful entry, false arrest, and unlawful
search.
“Generally, a district court’s order denying summary judgment based on qualified
immunity is immediately appealable under the collateral order doctrine.” Yates v. Terry,
817 F.3d 877, 882 (4th Cir. 2016). However, “[o]ur jurisdiction over such an appeal
extends only to a denial of qualified immunity to the extent that it turns on an issue of law.”
Id. (cleaned up). Thus, to the extent the ruling turns on issues of law, “an order rejecting
the defense of qualified immunity at either the dismissal stage or the summary judgment
3 USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 4 of 8
stage is a final judgment subject to immediate appeal.” Behrens v. Pelletier, 516 U.S. 299,
307 (1996) (cleaned up).
Qualified immunity protects “government officials performing discretionary
functions . . . insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Evaluating qualified immunity requires a
two-pronged inquiry: “whether a constitutional violation occurred and . . . whether the
right violated was clearly established” at the time of the violation. Henry v. Purnell, 652
F.3d 524, 531 (4th Cir. 2011) (en banc) (internal quotation marks omitted); see Meyers v.
Balt. Cnty., 713 F.3d 723, 731 (4th Cir. 2013). The latter prong will support immunity,
even if the officer violated an individual’s constitutional rights, “if a reasonable person in
the officer’s position could have failed to appreciate that his conduct would violate those
rights.” Meyers, 713 F.3d at 731 (internal quotation marks omitted).
“After defining the right, we ask whether it was clearly established at the time
[Appellants] acted.” Est. of Armstrong ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d
892, 907 (4th Cir. 2016). “[T]he Supreme Court has explained that a clearly established
right is one that is sufficiently clear that every reasonable official would have understood
that what he is doing violates that right.” Feminist Majority Found. v. Hurley, 911 F.3d
674, 703-04 (4th Cir. 2018) (cleaned up). “In other words, existing precedent must have
placed the statutory or constitutional question beyond debate.” Tarashuk v. Givens, 53
F.4th 154, 164 (4th Cir. 2022) (internal quotation marks omitted). “This is not to say that
an official action is protected by qualified immunity unless the very action in question has
4 USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 5 of 8
previously been held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Armstrong, 810 F.3d at 907 (internal quotation marks
omitted).
Here, McKenna had a disagreement with a neighbor who took out a protective order
against McKenna. Appellants went to McKenna’s apartment to serve the protective order.
McKenna refused to provide the officers with identification; the officers stated that they
needed to identify McKenna in order to serve him with the protective order. Appellants
called the Assistant Commonwealth Attorney, Boyer, who advised them that McKenna
could be charged with obstruction of justice for refusing to comply with the officers’
requests for identification. Appellants then returned to McKenna’s apartment and he
continued to refuse to provide identification. When McKenna tried to close his door,
Thomas pushed the door open, stepped into the apartment, pulled McKenna into the
hallway, and placed McKenna under arrest for obstruction of justice. Appellants conducted
a search of McKenna pursuant to the arrest and transported McKenna to the police station.
A magistrate, however, refused to issue a warrant for obstruction of justice, and the officers
returned McKenna to his apartment.
Appellants challenge the district court’s conclusion that they were not entitled to
qualified immunity from liability for McKenna’s claims of unlawful entry, false arrest, and
unlawful search. Appellants argue that they had probable cause to believe that McKenna
obstructed justice when they arrested him because they reasonably believed they had the
duty to collect McKenna’s identifying information to serve him with the protective order.
Even if they did not have probable cause to arrest McKenna, however, Appellants argue
5 USCA4 Appeal: 23-1573 Doc: 33 Filed: 02/06/2025 Pg: 6 of 8
that the district court erred in finding that the right was clearly established. Appellants
further argue that because the arrest was lawful, the search incident to the arrest was also
lawful. In addition, Appellants argue that Thomas is entitled to qualified immunity from
McKenna’s unlawful entry claim because he had reasonable grounds to believe that a
warrantless entry was justified based on McKenna’s history with, and recent disagreement
with, his neighbor.
“The Fourth Amendment protects the right of the people to be secure in their persons
against unreasonable searches and seizures.” Hupp v. Cook, 931 F.3d 307, 318 (4th Cir.
2019) (cleaned up). The ultimate touchstone under the Fourth Amendment is
reasonableness, and “[t]hat standard generally requires the obtaining of a judicial warrant
before a law enforcement officer can enter a home without permission.” Lange v.
California, 594 U.S. 295, 301 (2021) (internal quotation marks omitted). The warrant
requirement is subject to several exceptions, including for exigent circumstances in which
the situation presents “a compelling need for official action and no time to secure a
warrant” before making entry into a home. Id. (internal quotation marks omitted).
In addition, to prevail on a claim for false arrest, a plaintiff must show that officers
seized him without probable cause. See Brooks v. City of Winston-Salem, 85 F.3d 178, 181
(4th Cir. 1996). “Probable cause to justify an arrest means facts and circumstances within
the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed an
offense.” Humbert v. Mayor & City Council of Balt. City, 866 F.3d 546, 555 (4th Cir.
2017) (cleaned up). We evaluate probable cause under an objective standard, considering
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the totality of the circumstances known to the officer at the time of the seizure and without
consideration of the subjective beliefs of the officers involved. See Smith v. Munday, 848
F.3d 248, 253 (4th Cir. 2017). The officer need not “resolve every doubt about a suspect’s
guilt before probable cause is established.” Torchinsky v. Siwinski, 942 F.2d 257, 264 (4th
Cir. 1991).
In addition, “[a] warrantless search by the police is valid if it falls within one of the
narrow and well-delineated exceptions to the Fourth Amendment’s warrant requirements,”
including the exception for “warrantless searches incident to arrest.” United States v.
Ferebee, 957 F.3d 406, 418 (4th Cir. 2020) (internal quotation marks omitted). “This
exception provides that when law enforcement officers have probable cause to make a
lawful arrest, they may―incident to that arrest and without a warrant―search the
arrestee’s person and the area within his immediate control.” Id. (internal quotation marks
Our review of the record and the relevant legal authorities confirms that the district
court did not err in denying qualified immunity to Appellants on these claims. The court
properly determined that Thomas failed to establish any applicable exceptions to the
requirement that officers obtain a warrant before entering a citizen’s home. Moreover, as
the district court found, Appellants lacked probable cause to believe that McKenna
committed obstruction of justice justifying his arrest. Finally, because McKenna’s arrest
was not lawful, the search incident to his arrest was similarly unlawful.
Accordingly, we affirm the district court’s denial of qualified immunity to
Appellants. We dispense with oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and argument would not aid in the
decisional process.
AFFIRMED