UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1791
DANNY ROWELL,
Plaintiff - Appellant,
v.
CITY OF HICKORY; T. E. HUNT,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Dennis L. Howell,
Magistrate Judge. (5:07-cv-00075-DLH)
Argued: May 13, 2009 Decided: August 27, 2009
Before NIEMEYER, Circuit Judge, C. Arlen BEAM, Senior Circuit
Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation, and Joseph F. ANDERSON, Jr.,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Phyllis Lile-King, PINTO, COATES, KYRE & BROWN, PLLC,
Greensboro, North Carolina, for Appellant. Patrick Houghton
Flanagan, CRANFILL, SUMNER & HARTZOG, LLP, Charlotte, North
Carolina, for Appellees. ON BRIEF: Bradley P. Kline, CRANFILL,
SUMNER & HARTZOG, LLP, Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is an appeal of a grant of summary judgment in a
lawsuit seeking damages arising out of an allegedly
unconstitutional arrest. The defendants below, who are the
appellees here, are the City of Hickory, North Carolina, and one
of its police officers, named in his official capacity. The
lower court granted summary judgment to the City of Hickory on
several grounds, one of which was that the appellant, Danny
Rowell (“Rowell”), failed to present evidence that his allegedly
unconstitutional arrest was the result of the implementation of
an official policy, custom, or practice of the City of Hickory.
Because this conclusion is sound, we affirm.
I.
Rowell met a gentleman named Ronald Eddings while on a
business trip in Hickory in December of 2004. The two
apparently met at the hotel where Rowell was staying and spent
the day drinking beer in and around the hotel. After they
exhausted the initial supply of beer, the two men took Rowell’s
car to purchase more. According to Rowell, he allowed Eddings
to drive the car because he (Rowell) felt it imprudent to drive
after drinking. After the two men returned from purchasing
beer, Eddings asked to borrow Rowell’s car. Rowell agreed, but
on the condition that he come along while Eddings drove.
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The parties present different versions of what happened
next. Officer T.E. Hunt of the Hickory police department avers
that he observed Rowell’s car traveling in the wrong lane of the
road and that he had to quickly maneuver his police car in order
to avoid a head-on collision with Rowell’s car. Officer Hunt
alleges that he then turned his police car around, activated his
traffic lights, and initiated a traffic stop. Rowell contends
that Officer Hunt’s version of events is not accurate.
According to Rowell, Eddings was not operating the car in an
unusual manner. Rowell contends that the two men noticed a
police car following behind them and that Officer Hunt initiated
the traffic stop after Eddings turned into a parking lot.
There is also some dispute about what happened during the
traffic stop, but none of it appears to be material. After
Officer Hunt approached the car, Eddings informed the officer
that he did not have a valid driver’s license. Officer Hunt
arrested Eddings after verifying this information. After
securing Eddings in the police car, Officer Hunt returned to
question Rowell, who by all accounts had not behaved unusually
during any portion of the traffic stop. After Rowell informed
Officer Hunt that he owned the car, Officer Hunt placed Rowell
under arrest for aiding and abetting the unlicensed operation of
a motor vehicle.
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After securing Rowell in the police car, Officer Hunt
conducted a search of Rowell’s vehicle. In the search, Officer
Hunt discovered a small amount of a hard, white substance which
Officer Hunt attested to believing, based on his knowledge,
experience, and training, to be cocaine base; commonly known as
“crack” cocaine. Officer Hunt confronted Rowell with the
suspected contraband and Rowell claims to have declared that it
was not cocaine base and that he had no drugs in the vehicle.
Officer Hunt seized the suspected controlled substance and took
both Eddings and Rowell before a magistrate. The magistrate
determined that Rowell’s arrests for the traffic violation and
for possession of a controlled substance were supported by
probable cause. R.O.A. 750. 1
It is around this point that the timeline of this case took
an unfortunate turn. Rowell posted bond the morning after his
arrest, but lost his job shortly thereafter as a result of the
arrest. R.O.A. 329, 333. Although Rowell had a relatively
quickly scheduled preliminary date in court, the case was
continued several times. Rowell was appointed a public
defender. R.O.A. 337. It appears that in February of 2005,
1
We granted appellant leave to use the original record on
appeal. Citations in this opinion will therefore sometimes be
to the record on appeal (“R.O.A.”), and at other times be to the
joint appendix (“J.A.”). J.A. 47.
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Rowell believed the matter to be closed and decided to move to
Virginia. R.O.A. 341. The matter was not closed, however, and
in April of 2005, which was about four months after Rowell’s
arrest, a grand jury in North Carolina returned an indictment
charging Rowell with aiding and abetting the unlicensed
operation of a motor vehicle and with possession of cocaine.
R.O.A. 766. When Rowell was thereafter arrested in Virginia in
connection with what appears to have been a minor fracas at a
bar, the Virginia police discovered the pending North Carolina
charges. R.O.A. 348. While awaiting extradition to North
Carolina, Rowell spent about twenty days in a Virginia jail.
R.O.A. 352. Rowell spent about thirty additional days in jail
after he returned to North Carolina before he could post bond.
R.O.A. 355. Rowell secured a different public defender, and the
case was set for trial in January of 2006. R.O.A. 356-58.
Rowell hired an attorney shortly before his trial date, the case
was continued again, and Rowell’s attorney eventually phoned him
in the Spring of 2006 to tell him that the charges had been
dismissed. R.O.A. 359, 361. The dismissal came about because a
laboratory report issued by the North Carolina State Bureau of
Investigation concluded that the suspected cocaine seized from
Rowell’s car was in fact aspirin. R.O.A. 12, 14.
Rowell filed this lawsuit in May of 2007, J.A. 5, and the
defendants removed the case to federal court, J.A. 1. Spelled
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out in seven causes of action, Rowell’s complaint contended that
the stop of his car was without probable cause; that the search
of the car was unreasonable; that Rowell’s criminal charges were
not supported by probable cause; that false evidence was
presented to the North Carolina grand jury; that Rowell was
extradited from Virginia without probable cause; and that the
defendants were negligent in failing to reasonably investigate
Rowell’s criminal charges. J.A. 8-13. Rowell contended that
these actions gave rise to liability in damages under 42 U.S.C.
§ 1983 (for violations of his Fourth and Fourteenth Amendment
rights), and under North Carolina’s common law. Id.
By the parties’ consent, the case came before a magistrate
judge on cross-motions for summary judgment. Noting that a
lawsuit against a municipal employee “in his official capacity”
is a suit against the municipality, the magistrate dismissed the
claims against Officer Hunt as “redundant.” J.A. 21. The
magistrate then granted summary judgment to the City of Hickory
on the grounds that Rowell’s evidence did not show any
deficiency in the city’s training, policies, and practices in
operating its police department. J.A. 30. Along the way, the
magistrate excluded a portion of Rowell’s expert’s testimony and
concluded that Officer Hunt’s stop of the car, Rowell’s arrest,
and the search of the car were supported by probable cause. The
magistrate similarly disposed of Rowell’s state-law claims;
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finding that a claim for false imprisonment does not lie when
the complained-of imprisonment is an arrest supported by
probable cause. J.A. 41. This appeal followed.
II.
We review a grant of summary judgment de novo. CACI
Intern., Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150,
155 (4th Cir. 2009).
Rowell raises six issues on appeal, contending that the
magistrate erred in adopting Officer Hunt’s version of the facts
in resolving the probable cause questions; in excluding the
testimony of Rowell’s offered expert; in concluding that the
stop and arrest were supported by probable cause; and in
concluding that the City of Hickory did not have an
unconstitutional policy, custom, or practice. If Rowell is
wrong on this last point — that is, if the magistrate was
correct in concluding that there is no evidence in this case of
a policy, practice, or custom of the City of Hickory which
caused a deprivation of Rowell’s constitutional rights — the
other questions Rowell raises are academic matters. We conclude
that Rowell is wrong on the point and we therefore do not
address his remaining contentions.
“Local governing bodies . . . can be sued directly under §
1983 for monetary, declaratory, or injunctive relief where . . .
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the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.”
Monell v. Dep’t of Soc. Serv. of the City of N.Y., 436 U.S. 658,
690 (1978). “[A] municipality cannot be held liable solely
because it employs a tortfeasor . . . in other words, a
municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Id. at 691 (emphasis in original). “Instead,
it is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury
that the government as an entity is responsible under § 1983.”
Id. at 694. “[T]he inadequacy of police training may serve as
the basis for § 1983 liability,” but “only where the failure to
train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of Canton
v. Harris, 489 U.S. 378, 388 (1989).
At trial, Rowell focused on what he contended was Hickory
police department’s policy of arresting individuals for drug
offences without confirming that what the officer suspects is
drugs is in fact drugs. Appellee’s Brief at 30. Rowell
contended that the failure to confirm the presence of a
controlled substance, in the circumstances of his arrest,
amounted to the arrest lacking probable cause. As Rowell sees
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it, “where the policy of the department is to not require field
testing, which arguably would always provide the threshold
probable cause for an arrest, the department bears that much
more responsibility for training and procedures that assure
probable cause supports its arrests.” Id. at 31.
In City of Canton, the case which provides the standard for
this type of liability, the court spoke of the “deliberate
indifference” a municipality must show towards the
constitutional rights of others, and the court described such
indifference through specific examples. One example noted in
that case was a policy of vesting shift commanders with the sole
discretion to determine when an individual in police custody
needed medical attention. By vesting the commanders with this
discretion, the argument went that the municipality had a duty
to provide the shift commanders with some medical instruction to
guide them in making those decisions. 489 U.S. at 381-82.
Another example was a city’s providing of firearms to its
officers. When a city does so, the court recognized the city’s
duty to train officers in the constitutional limitations on the
use of deadly force. Id. at 390 n.10. In both examples the
court focused on specific types of discretion entrusted to
municipal employees, the municipality’s need to train its
employees in exercising that discretion, and the harm of not
providing such training.
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Rowell’s claim is of a different sort. The City of Hickory
gave Officer Hunt the power to arrest individuals for drug
offences, but there is no dispute that Officer Hunt received
instruction in constitutional law, including the requirement
that an arrest be supported by probable cause, and in
identifying controlled substances. Rowell simply contends that
Officer Hunt’s training didn’t sink in. We have been
instructed, however, that the fact “[t]hat a particular officer
may be unsatisfactorily trained will not alone suffice to fasten
liability on the city, for the officer’s shortcomings may have
resulted from factors other than a faulty training program.”
Id. at 390-91. Rowell does not point to specific deficiencies
in the Basic Law Enforcement Training Course Officer Hunt
completed at community college, nor does he point to deficient
aspects of Officer Hunt’s field training during his period of
probationary employment with the City of Hickory. His claim is
that Officer Hunt did not understand the concept of probable
cause, that he inaccurately identified a tablet of aspirin as
cocaine, and that because the City of Hickory put him on patrol,
the City of Hickory is responsible. This is exactly the type of
case City of Canton noted would not measure up.
Rowell also fails to allege how providing additional
training would have made a difference in these circumstances.
The only evidence we have in this case is that in the course of
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a search incident to an arrest, Officer Hunt discovered a
substance which he attested to believing, based on his
knowledge, training, and experience, to be cocaine base.
Although Officer Hunt’s belief turned out to be inaccurate,
Rowell has not pointed us to how the City of Hickory caused
Officer Hunt’s analysis to be flawed or unreasonable, and Rowell
has not provided other examples of similar police encounters in
the City of Hickory which might be fairly said to put the city
on notice that its police officers made a habit of incorrectly
identifying benign substances as illegal drugs. In short, there
is nothing suggesting that the city can be fairly said to have
been “deliberately indifferent” to the constitutional rights of
its citizens. Rowell simply posits that if the police
department does not have a policy of field testing, it needs to
train its officers to identify controlled substances with more
accuracy. This proposition is not persuasive. We have been
instructed that “adequately trained officers occasionally make
mistakes,” and “the fact that they do says little about the
training program or the legal basis for holding the city
liable.” Id. at 391.
Rowell’s attempt to hamstring the city into liability by
citing to statements by Officer Hunt and his supervisor that the
arrest was “textbook” and “in conformance with official policy”
do not help the case meet this threshold. Officer Hunt thought
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the arrest was “textbook” because he believed the arrest to be
supported by probable cause. This belief was apparently shared
by Hunt’s supervisor and the magistrate who performed the post-
arrest hearing. Rowell’s argument along these lines is flatly
rejected by City of Canton, which noted that municipal liability
“will not be satisfied by merely alleging that the existing
training program for a class of employees, such as police
officers, represents a policy for which the city is
responsible.” Id. at 389. Rowell has not presented a claim in
the mold of what the City of Canton concurring opinion termed a
“failure to train concerning a clear constitutional duty” or a
failure to train “where it can be shown that policymakers were
aware of, and acquiesced in, a pattern of constitutional
violations involving the exercise of police discretion.” Id. at
396-97. Any offered parallel for this standard of liability and
Rowell’s theory of this case simply does not hold.
Two matters of housekeeping warrant quick mentioning. The
first is that at oral argument, Rowell shifted gears on his
theory of the case completely and argued that the
unconstitutional police policy or custom in this case was to
conduct a search of a suspect’s vehicle after the suspect had
been arrested and secured in a police car; a clear violation of
the Fourth Amendment in light of the recent decision in Arizona
v. Gant, No. 07-542 (U.S. Apr. 21, 2009). There are many
12
problems with this argument. The most important is that it was
not presented below, and as a legal matter, the argument is
therefore waived. See Malbon v. Pa. Millers Mut. Ins. Co., 636
F.2d 936, 941 (4th Cir. 1980) (“It is elementary that an issue
not raised below will not, absent extraordinary circumstances .
. . be considered on appeal.”). As a practical matter, the fact
that it was not presented below represents why the record is not
developed at all on the point. There is no evidence of the City
of Hickory’s policy on training regarding searches incident to
arrest and no characterizations and findings as to the city’s
actions in this area by a lower court. Indeed, the briefing in
this case contains no citations to Gant or discussion of what
Hickory’s policy on automobile searches incident to an arrest
may have been. A remand would give Rowell the opportunity to
develop a record on the point, but Rowell cannot shift gears
while his case is on appeal to take advantage of a new theory of
liability that he did not assert below.
The second housekeeping matter is one of, for lack of a
better word, contrition. We ought to acknowledge that although
Rowell has presented no evidence that a policy of the City of
Hickory caused a violation of his constitutional rights, the
system did not act expediently in his case. When all is said
and done, this case may stand for the proposition that although
an arrest and indictment be supported by probable cause, they
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may also be founded on a genuine mistake. It took a long time
for the criminal justice system to validate Rowell’s protest
that the substance seized from his car was not drugs, but this
can hardly be said to be the City of Hickory’s fault. In this
appeal, we are concerned solely with the City of Hickory’s
liability in damages for its role in these circumstances.
Though the timeliness of the system may have failed Rowell, he
has not shown how a policy or custom of the City of Hickory
caused a violation of his constitutional rights.
For the foregoing reasons, the grant of summary judgment to
the defendants is
AFFIRMED.
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