Brown v. Town of Chapel Hill

NO. COA13-323

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

CHARLES D. BROWN,
Plaintiff,

v. Orange County
No. 11 CVS 1204
TOWN OF CHAPEL HILL, CHAPEL HILL
POLICE OFFICER D. FUNK, in his
official and individual capacity,
and OTHER CHAPEL HILL POLICE
OFFICERS, in their individual and
official capacities, to be named
when their identities and level of
participation becomes known,
Defendants.

Appeal by defendants from order entered 18 September 2012

by Judge Carl R. Fox in Orange County Superior Court. Heard in

the Court of Appeals 28 August 2013.

McSurely and Turner, PLLC, by Alan McSurely, for plaintiff-
appellee.

Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog and Dan M.
Hartzog, Jr., for defendants-appellants.

HUNTER, Robert C., Judge.

Officer D. Funk (“defendant” or “Officer Funk”) and the

Town of Chapel Hill (“the Town”) (collectively “defendants”)

appeal from an order denying in part their motion for summary
 -2-
judgment as to the claim of plaintiff Charles D. Brown for false

imprisonment. Only Officer Funk’s appeal from the trial court’s

denial of his motion for summary judgment based on public

official immunity is properly before us. Because plaintiff

failed to forecast evidence that Officer Funk acted with malice,

we reverse.

Background

This lawsuit arises out of the stop and detention of

plaintiff by Officer Funk and other officers of the Chapel Hill

Police Department (“CHPD”) on the night of 1 June 2009.

Plaintiff, a black male, is the owner of Precise Cuts & Styles

Barber Shop located at 136 E. Rosemary Street in Chapel Hill,

North Carolina.

According to plaintiff’s verified complaint and deposition,

on 1 June 2009, after closing his shop at 10:00 p.m., plaintiff

stayed late to do some cleaning and remodeling. When plaintiff

was finished, around 11:25 p.m., he locked the shop’s front door

and walked west on Rosemary Street towards his fiancé’s house in

Carrboro.

At around 11:35 p.m., plaintiff was walking along the north

side of West Rosemary Street when he saw two officers in police

cars parked in the convenience store lot on the south side of

the street across from Breadman’s Restaurant. One of the
 -3-
officers pulled out on Rosemary Street and into an empty lot on

the south side of the street. As he walked past the officer,

plaintiff raised his right arm across his face, scratching the

left side of his face with his right hand. Plaintiff continued

walking on the north side of the street past the Breadman’s

parking lot, and heard someone say, “Stop.” Not realizing that

the person was talking to him, plaintiff continued walking.

Plaintiff then heard the same voice again, this time

directly behind him, saying, “I said stop!” Plaintiff turned

and saw Officer Funk with his hand on his weapon about five feet

away. Plaintiff asked, “Stop for what? What did I do?” Officer

Funk responded, “[Y]ou are under arrest, Mr. Farrington [sic]”

as he grabbed plaintiff’s hand, spun him around, pushed him

against the back of a second police car that had just pulled in

front of plaintiff. Officer Funk pulled plaintiff’s other arm

behind his back and tightly fastened the handcuffs on

plaintiff’s wrists, inflicting pain.

Plaintiff informed the officers that he was not Cuman

Fearrington (“Mr. Fearrington”) and that his actual name was

Charles Brown. When plaintiff did not receive any response from

the officers, he asked, “[A]re you sure you want to do this? My

name is not Mr. Farrington [sic].” Again, the officers did not

respond. Instead, Officer Funk pushed plaintiff against the
 -4-
trunk of the police car and patted plaintiff down, checking for

weapons. Plaintiff told Officer Funk to look in his pants

pocket for his ID cards. Defendant pulled out a set of cards

held together with a rubber band, flipped through them, and

threw them on the trunk of the police car.

When Officer Funk asked plaintiff from where he was

walking, plaintiff told him that he had just left work. Officer

Funk questioned plaintiff: “From work at this time of night?”

Plaintiff explained that he owned a barber shop on Rosemary

Street. Officer Funk replied in a sarcastic and incredulous

tone: “Oh? You own a business?” Plaintiff responded, “If I was

white, this would not be happening.” Officer Funk then asked

whether plaintiff would “feel better” if he called a black

officer. Because plaintiff again thought Officer Funk was being

sarcastic, he replied, “No.”

In the meantime, five police cars gathered, and several

cars and pedestrians slowed or stopped to observe what was

happening. A black police officer, Officer D. Williams, asked

plaintiff, “If I had pulled you, would you feel better?”

Plaintiff then heard Officer Williams say to the other officers,

“I hate the ones like him.”

At 12:14 a.m., Officer Funk’s partner, Officer Castro,

called Orange County Communications to verify the information on
 -5-
plaintiff’s identification card. When the operator confirmed

plaintiff’s identification, Officer Castro asked, “[D]oes he

have anything on the NCIC? Or anything on other surrounding

indices?” The operator replied, “I don’t show anything in NCIC

but I’m going to check surrounding . . . I’ll have to send a

message . . . it will take a few . . . .” Eventually the

operator responded that there was “no positive response,” and

the 16-minute call ended at 12:30 a.m. A few minutes later,

Officer Funk removed plaintiff’s handcuffs, and he and the other

officers drove off without apologizing or saying anything else

to plaintiff.

The following day, plaintiff and his fiancé drove to the

CHPD to file a complaint and ask for a photograph and

description of Mr. Fearrington. They met with Lieutenant

Bradley who told them he did not have time to look up the

requested information and that Officer Funk was in training and

could not meet with them either. Because of what plaintiff and

his fiancé perceived as a discriminatory and disrespectful

attitude from Lt. Bradley, they did not file a complaint that

day, fearing it would be dismissed with the same attitude.

Instead, on 16 June 2009, plaintiff reported the incident

to the local NAACP, who asked the CHPD for the incident report

of plaintiff’s arrest. Plaintiff was provided the incident
 -6-
report on 24 June 2009. Defendants admitted that the report was

not created until requested by the NAACP, two weeks after the

incident. The report is unsigned by Officer Funk and states

that at 12:17 a.m. on 2 June 2009 the “State of North Carolina”

was the victim of a “Suspicious Person” on the 300 Block of West

Rosemary Street.

The report lists Officers Castro and Sabanosh as “others

involved” in the incident. Officer Sabanosh does not, however,

appear anywhere on the radio log from that night. Although the

radio log indicates that Officer Taylor was present at the scene

of the incident, the incident report does not mention him.

Officer Williams, the black officer, is not mentioned in either

the radio log or on the incident report.

On 2 June 2011, plaintiff filed suit against the Town and

Officer Funk in his official and individual capacity for

assault, false imprisonment, and violation of plaintiff’s

constitutional rights under Article I, Section 20, and Article

I, Section 19, of the North Carolina Constitution. Plaintiff

pled that the Town had waived sovereign immunity by the purchase

of liability insurance. In its response, the Town admitted that

it “participates in a local government risk pool, which provides

certain coverage to the Town with respect to Plaintiff’s

claims.”
 -7-
On 13 August 2012, defendants filed a motion for summary

judgment, arguing that (1) plaintiff had not and could not

establish facts to support any of his causes of action, (2)

Officer Funk was entitled to public official immunity in his

individual capacity, (3) the claims against Officer Funk in his

official capacity are duplicative of the claims against the

Town, and (4) the claims directly under the North Carolina

Constitution should be dismissed because plaintiff had adequate

state remedies available. In support of the motion for summary

judgment, defendants submitted an affidavit from Officer Funk.

According to Officer Funk’s affidavit, he did not see

plaintiff until 12:14 a.m.—he drove to the Keys Food Mart, where

plaintiff first saw the two officers parked, after responding to

a loud music complaint on Church Street at 12:04 a.m. Officer

Funk first saw plaintiff walking west on the south side of the

road as defendant was turning right onto Rosemary. As he made

his turn, Officer Funk saw plaintiff look up in his direction

and immediately put his right hand in front of his face.

Plaintiff continued to cover his face with his hand, moving his

hand slowly across his face as Officer Funk drove by to keep his

face from view. After plaintiff passed Officer Funk, plaintiff

crossed from the south side to the north side of the street just

before reaching Officer Castro’s patrol car in the Keys Food
 -8-
Mart lot. As he crossed the street, he switched from using his

right hand to cover his face to using his left hand so that

Officer Castro could not see his face. Officer Funk claimed

that plaintiff hid his face continuously.

Based on Officer Funk’s belief that plaintiff was

intentionally hiding his face and it being after midnight in a

high call volume area of town, Officer Funk decided to

investigate further. He turned his vehicle around to get a

closer look at plaintiff, and, when he got close enough, “the

individual resembled a subject [he] knew had active local arrest

warrants—Cuman Fearrington.” In addition to the arrest

warrants, Officer Funk noted that Mr. Fearrington had evaded

arrest in the “Central Business District” of Chapel Hill earlier

that day. Officer Funk, believing that plaintiff was Mr.

Fearrington, thought that plaintiff was intentionally covering

his face based on those outstanding arrest warrants.

According to Officer Funk, he got out of his police car and

asked plaintiff if he could speak to him, but plaintiff ignored

him and increased his pace. Officer Funk denied placing his

hand on his weapon or threatening force. Officer Funk then told

plaintiff to stop, repeating his order several times before

plaintiff turned around and asked, “Why do I have to stop, just

because you say so?” At that point, Officer Castro had pulled
 -9-
his vehicle in front of plaintiff, and it appeared to Officer

Funk that plaintiff was attempting to walk around Officer

Castro’s vehicle. Defendant also claimed that he believed that

plaintiff might run away into an open alley nearby. Concerned

that plaintiff may attempt to run, Officer Funk placed his hands

on plaintiff’s left arm, and plaintiff jerked his arm away.

Officer Funk placed plaintiff in handcuffs with the assistance

of another officer; he claimed plaintiff continued to struggle

during the encounter.

Officer Funk’s account of what happened after he handcuffed

plaintiff also differs from plaintiff’s account. Officer Funk

stated that while he was patting plaintiff down for weapons, he

asked plaintiff for his identification, and plaintiff told him

he did not have any. Officer Funk claims that he asked

plaintiff more than three times for his identification and that

each time plaintiff gave the correct name but the wrong date of

birth, all while denying that he had identification on his

person. Officer Funk also denies that any of the comments he

made to plaintiff regarding plaintiff working late and owning a

business were intended to express skepticism or to disparage

plaintiff.

Officer Funk attributes the delay in the verification of

plaintiff’s identification to the fact that communications
 -10-
originally ran an incorrect birth date into the database. As

soon as communications ran the correct date of birth, they were

able to confirm plaintiff’s identity. Officer Funk claims that

plaintiff was only in investigative detention for 16 minutes,

from 12:14 a.m. to 12:30 a.m.

Attached to Officer Funk’s affidavit was the radio log for

that night, which shows the self-reported status of the CHPD

officers. The log stated that Officer Funk was dispatched to

500 Umstead Road at 11:32 p.m., and he arrived there at 11:42

p.m. At 11:50 p.m., Officer Funk radioed dispatch that he was

available. At 11:54, he was dispatched to a loud noise

complaint at Church Street and radioed that he was again

available at 12:04 a.m. The log does not show that Officer Funk

ever radioed that he had arrived on the scene at Church street,

as it shows for the other locations to which he was dispatched

that night. Finally, the log shows that Officer Funk arrived at

Breadman’s at 12:15 a.m. and radioed that he was available at

12:32 a.m. Defendants also provided documentation of the call

between Officer Castro and Orange County Communications, which

shows that the call began at 12:14 a.m. and ended at 12:30 a.m.

Judge Carl Fox heard defendants’ motion for summary

judgment and, on 18 September 2012, Judge Fox entered an order

allowing defendants’ motion as to plaintiff’s constitutional
 -11-
claims and his claim for assault. Judge Fox denied the motion

as to plaintiff’s claim for false imprisonment as to all

defendants. Defendants appealed to this Court.

Grounds for Appeal

Preliminarily, we note that Judge Fox’s order is

interlocutory and, generally, an order denying a motion for

summary judgment is not immediately appealable. Schmidt v.

Breeden, 134 N.C. App. 248, 251, 517 S.E.2d 171, 174 (1999).

“An interlocutory appeal is ordinarily permissible only if (1)

the trial court certified the order under Rule 54(b) of the

Rules of Civil Procedure, or (2) the order affects a substantial

right that would be lost without immediate review.” Boyd v.

Robeson Cnty., 169 N.C. App. 460, 464, 621 S.E.2d 1, 4 (2005).

Officer Funk contends that the trial court erred in denying

his motion for summary judgment based on public official

immunity. This Court has held that a public official’s right to

be immune from suit is a substantial right justifying an

interlocutory appeal. See Free Spirit Aviation, Inc. v.

Rutherford Airport Auth., 191 N.C. App. 581, 583, 664 S.E.2d 8,

10 (2008). Therefore, defendant’s appeal of the denial of the

motion for summary judgment based on public official immunity is

properly before us.
 -12-
Additionally, both defendant and the Town have sought

immediate review of the denial of their motion for summary

judgment on several non-immunity related grounds. Defendants

argue that “it is well established that this Court will, in the

interests of judicial economy, entertain the entirety of an

appeal involving an issue which affects a substantial right,

though the remaining issues on appeal do not, in and of

themselves, affect such a right.”

Defendants cite Block v. Cnty. of Person, 141 N.C. App.

273, 277, 540 S.E.2d 415, 419 (2000) (addressing the defendants’

argument that the complaint was insufficient to sue the

defendants in their individual capacity); Houpe v. City of

Statesville, 128 N.C. App. 334, 340, 497 S.E.2d 82, 87 (1998)

(addressing “in our discretion” the defendant’s non-immunity

related arguments “where it would be in the interests of

judicial economy to do so”); Smith v. Phillips, 117 N.C. App.

378, 384, 451 S.E.2d 309, 314 (1994) (holding that “in the

interest of judicial economy, we exercise our discretionary

power to suspend the rules pertaining to interlocutory appeals

and address the remainder of [the] defendants’ appeal”).

However, this Court has noted that in cases where we have

exercised our discretion to also review non-immunity issues, the

Court has neither held “that non-immunity-related issues would
 -13-
always be considered on the merits in the course of deciding an

immunity-related interlocutory appeal” nor “recognize[d] the

existence of a substantial right to have multiple issues

addressed in the course of an immunity-related appeal. On the

contrary, in most immunity-related interlocutory appeals, we

have declined requests that we consider additional non-immunity-

related issues on the merits.” See Bynum v. Wilson Cnty., ___

N.C. App. ___, ___, 746 S.E.2d 296, 300, disc. review dismissed,

___ N.C. ___, 748 S.E.2d 559 (2013). In this case, after

considering all of the circumstances, we decline to exercise our

discretion to consider the merits of defendants’ non-immunity

issues on appeal and dismiss defendants’ appeal with respect to

those issues as interlocutory.

Arguments

The sole issue properly before us is whether Judge Fox

erred by denying Officer Funk’s motion for summary judgment

based on public official immunity.

Summary judgment shall be granted “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.” N.C. Gen. Stat. §

1A–1, Rule 56 (2013). When deciding the motion, “‘the trial
 -14-
judge must view the presented evidence in a light most favorable

to the nonmoving party.’” In re Will of Jones, 362 N.C. 569,

573, 669 S.E.2d 572, 576 (2008) (quoting Dalton v. Camp, 353

N.C. 647, 651, 548 S.E.2d 704, 707 (2001)). Additionally,

“‘[a]ll facts asserted by the [nonmoving] party are taken as

true and their inferences must be viewed in the light most

favorable to that party.’” Woods v. Mangum, 200 N.C. App. 1, 5,

682 S.E.2d 435, 438 (2009) (quoting Dobson v. Harris, 352 N.C.

77, 83, 530 S.E.2d 829, 835 (2000)), aff’d per curiam, 363 N.C.

827, 689 S.E.2d 858 (2010). This Court reviews an appeal from

summary judgment de novo. Id. In applying Rule 56, this Court

has held that “[s]ummary judgment is appropriate . . . if the

non-moving party is unable to overcome an affirmative defense

offered by the moving party.” Free Spirit Aviation, 191 N.C.

App. at 583, 664 S.E.2d at 10 (quoting Griffith v. Glen Wood

Co., Inc., 184 N.C. App. 206, 210, 646 S.E.2d 550, 554 (2007)).

I. Public Official Immunity – Malice Exception

As long as a public officer lawfully
exercises the judgment and discretion with
which he is invested by virtue of his
office, keeps within the scope of his
official authority, and acts without malice
or corruption, he is protected from
liability. Thus, a public official is immune
from suit unless the challenged action was
(1) outside the scope of official authority,
(2) done with malice, or (3) corrupt.
 -15-
Wilcox v. City of Asheville, __ N.C. App. __, __, 730 S.E.2d

226, 230 (2012) (internal citations omitted), disc. review

denied, 366 N.C. 574, 738 S.E.2d 363 (2013). Here, the only

exception to public official immunity plaintiff argued on appeal

is the malice exception. Specifically, plaintiff has not cited

any authority separately addressing the corruption exception to

the public official immunity doctrine or provided any analysis

as to this in his brief. Therefore, we will only address the

malice exception. See Wilkerson v. Duke Univ., __ N.C. App. __,

__, 748 S.E.2d 154, 161 (2013) (noting that arguments not raised

on appeal are “deemed abandoned”).

This Court has noted, with regard to the malice exception,

that:

As for the first question, the most
commonly-cited definition of malice in this
context is from our Supreme Court’s decision
in In re Grad v. Kaasa, which states that
“[a] defendant acts with malice when he
wantonly does that which a man of reasonable
intelligence would know to be contrary to
his duty and which he intends to be
prejudicial or injurious to another.” 312
N.C. 310, 313, 321 S.E.2d 888, 890 (1984).
Thus, elementally, a malicious act is an act
(1) done wantonly, (2) contrary to the
actor's duty, and (3) intended to be
injurious to another.

Wilcox, __ N.C. App. at __, 730 S.E.2d at 230. Thus, the only

issue is whether plaintiff sufficiently forecasted evidence for

each element of malice. See Schlossberg v. Goins, 141 N.C. App.
 -16-
436, 446, 540 S.E.2d 49, 56 (2000) (“[T]o survive [a] police

officer[‘s] motion for summary judgment on the issue of their

individual liability, [plaintiff] must have alleged and

forecasted evidence demonstrating the officers acted corruptly

or with malice.”). If so, there is a genuine issue of material

fact as to whether Officer Funk is entitled to the defense of

public official immunity, and the trial court did not err in

denying summary judgment. However, if not, then Officer Funk

would be immune from civil liability.

A. Contrary to Duty

The first element of malice is whether Officer Funk acted

contrary to his duty when he detained plaintiff. To determine

this issue, we must decide whether plaintiff’s seizure

constituted an investigatory stop or an arrest. See State v.

Carrouthers, 200 N.C. App. 415, 419, 683 S.E.2d 781, 784 (2009)

(“Generally, a person can be ‘seized’ in two ways for the

purposes of a Fourth Amendment analysis: by arrest or by

investigatory stop.”). Although police officers are

authorized during an investigatory stop to take measures to

protect their personal safety and maintain status quo, State v.

Campbell, 188 N.C. App. 701, 708-709, 656 S.E.2d 721, 727

(2008), this Court has noted that “[w]here the duration or

nature of the intrusion exceeds the permissible scope, a court
 -17-
may determine that the seizure may evolve into a de facto arrest

. . . even in the absence of a formal arrest,” State v. Milien,

144 N.C. App. 335, 340, 548 S.E.2d 768, 772 (2001).

Here, it is undisputed that Officer Funk immediately

handcuffed plaintiff once he reached him without asking

plaintiff to identify himself or providing any explanation for

why plaintiff was being stopped. Furthermore, plaintiff claimed

that Officer Funk immediately told him that he was under arrest.

While Officer Funk claims that he handcuffed plaintiff during an

investigatory stop to keep him from fleeing, Officer Funk

admitted that he mistakenly believed that plaintiff was Mr.

Fearrington, a person whom arrest warrants had been issued

against. However, once plaintiff’s true identity was

established, Officer Funk released plaintiff. For purposes of

this appeal, because “[r]easonable suspicion is a less demanding

standard than probable cause and requires a showing considerably

less than preponderance of the evidence[,]” State v. Styles, 362

N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (internal quotation

marks omitted), we conclude that plaintiff’s seizure constituted

a de facto arrest and not, as defendants contend, an

investigatory stop. Thus, Officer Funk must have had probable

cause; otherwise, he would be acting contrary to duty. See
 -18-
Milien, 144 N.C. App. at 339, 548 S.E.2d at 771 (noting that “a

de facto arrest . . . must be justified by probable cause”).

In the present case, it is undisputed that Officer Funk had

probable cause to arrest Mr. Fearrington. “[W]hen the police

have probable cause to arrest one party, and when they

reasonably mistake a second party for the first party, then the

arrest of the second party is a valid arrest.” Hill v.

California, 401 U.S. 797, 802, 28 L. Ed. 2d 484, 489 (1971).

Thus, the issue is whether Officer Funk’s mistake was reasonable

based on the totality of the circumstances. Subjective good-

faith belief is not sufficient on its own; instead, the Supreme

Court noted that “sufficient probability, not certainty, is the

touchstone of reasonableness under the Fourth Amendment.” Id.

at 804, 28 L. Ed. 2d at 490. Along these lines, this Court, in

Robinson v. City of Winston-Salem, 34 N.C. App. 401, 406-07, 238

S.E.2d 628, 631 (1977), noted that with regard to civil claims

for false imprisonment against police officers who arrest the

wrong person: “liability for false imprisonment will be imposed

only when the arresting officer has failed to use reasonable

diligence to determine that the party arrested was actually the

person described in the warrant.” This concept was reinforced

by this Court in State v. Lynch, 94 N.C. App. 330, 333, 380

S.E.2d 397, 399 (1989), which noted, relying on Robinson, that:
 -19-
even though a police officer reasonably mistakenly arrests the

wrong person, the officer must still take “reasonable steps to

confirm the identity of the individual under suspicion.”

With regard to the reasonableness analysis required by

Hill, the Fourth Circuit has noted that

the qualified immunity reasonableness
determination is based on evidence
reasonably available to the police officer
and in light of any exigencies present. And
importantly, this inquiry must not result in
a second-guessing of the officer’s actions
with the benefit of 20/20 hindsight. This
is so because officers executing a warrant
are not required to investigate
independently every claim of innocence, or
to be absolutely certain that the person
arrested is the person identified in the
warrant. Instead, sufficient probability,
not certainty, is the touchstone of
reasonableness under the Fourth Amendment.
Mistaken identity errors, of course, will
inevitably occur from time to time, but the
law sensibly recognizes that not every mix-
up in the issuance of an arrest warrant,
even though it leads to the arrest of the
wrong person . . . automatically constitutes
a constitutional violation for which a
remedy may be sought under . . . [section]
1983. In sum officers who mistakenly arrest
the wrong person are immune from § 1983
liability unless they act in an objectively
unreasonable manner in the circumstances, as
for example, in failing to investigate
readily available exculpatory evidence.

Brown v. Wiita, 7 F. App’x 275, 278-79 (4th Cir. 2001)

(alteration in original) (internal quotation marks and citations

omitted).
 -20-
Here, under Hill and Robinson, the evidence taken in a

light most favorable to plaintiff establishes that Officer

Funk’s mistaken belief that plaintiff was Mr. Fearrington was

reasonable and that Officer Funk used reasonable diligence to

determine whether plaintiff was who he claimed to be. With

regard to Officer Funk’s mistaken belief, the undisputed

evidence, as established by Officer Funk’s affidavit attached to

the motion for summary judgment, shows that Officer Funk knew

Mr. Fearrington had active local arrest warrants out on him and

that Mr. Fearrington had evaded arrest earlier that day in

Chapel Hill. After telling plaintiff to stop, plaintiff

continued to walk away from Officer Funk. Once plaintiff

stopped, according to his own complaint, Officer Funk stated:

“You are under arrest, Mr. Fearrington.” Photos of both Mr.

Fearrington and plaintiff were attached to the affidavit, and

the individuals appear similar.

Under the totality of the circumstances, Officer Funk’s

mistaken belief was reasonable. Plaintiff admitted in his

complaint that he did not stop the first time Officer Funk told

him to. Once he did, Officer Funk approached him and called him

“Mr. Fearrington”; thus, even though Officer Funk was only a few

feet away, he still held on to his mistaken belief that

plaintiff was Mr. Fearrington. Furthermore, even though there
 -21-
are some differences in the appearance of plaintiff and Mr.

Fearrington, the encounter took place late at night. Thus,

under the totality of the circumstances, plaintiff has failed to

forecast evidence that Officer Funk’s mistake was unreasonable.

Finally, although plaintiff immediately told Officer Funk that

he was not Mr. Fearrington, “aliases and false identifications

are not uncommon,” Hill, 401 U.S. at 803, 28 L. Ed. 2d at 489.

Accordingly, it was reasonable for Officer Funk to not believe

plaintiff’s claim until he saw plaintiff’s identification and

was able to verify it through NCIC.

We find Lynch provides guidance. In Lynch, a police

officer mistakenly stopped the defendant, believing the

defendant was someone for whom arrest warrants had been issued.

Id. at 333, 380 S.E.2d at 399. Relying on Hill, this Court held

that because “[p]ictures of [the] defendant and the other

individual show that they are sufficiently similar in appearance

that the officer's mistake was not unreasonable,” the officer

had “a reasonable basis to stop [the] defendant and require him

to identify himself.” Id. Then, after the defendant attempted

to flee, officers were then authorized to arrest the defendant

in order to “ascertain his identity.” Id.

Initially, we note that since Lynch involved an

investigatory stop that transformed into a formal arrest and in
 -22-
the present case plaintiff’s seizure constituted a de facto

arrest, Lynch’s guidance is limited to showing how the Court

determines the “reasonableness” of a mistaken belief. Like

Lynch, pictures introduced at summary judgment show that

plaintiff and Mr. Fearrington are sufficiently similar in

appearance. Based on the circumstances noted above in addition

to the similar photographs, Officer Funk’s misidentification was

understandable and reasonable.

Furthermore, plaintiff has failed to forecast any evidence

that Officer Funk did not use due diligence in ascertaining

plaintiff’s true identity. While it is undeniable that there

was some delay given the mix-up in plaintiff’s birthdate, the

call log indicates that Officer Funk was dispatched to the

location at 12:14 a.m. and that he was available at

approximately 12:32 a.m. Thus, from the time Officer Funk

noticed plaintiff until the time he was released was

approximately 18 minutes. Given the mix-up in plaintiff’s

birthdate, the evidence shows that Officer Funk used reasonable

diligence to ascertain plaintiff’s identity. Plaintiff has

offered no evidence to the contrary as to the length of this

detention nor any evidence that Officer Funk did not act

diligently. Accordingly, under Robinson, plaintiff has failed
 -23-
to forecast evidence to refute Officer Funk’s claim that he

diligently attempted to verify plaintiff’s identity.

While the dissent contends that the rule of law in Robinson

requires that an officer use reasonable diligence to ascertain

the person’s identity before arresting him, given the

differences between how the plaintiff in Robinson and how

plaintiff in the present case were arrested, we do not believe

that the rule of law in Robinson would not be satisfied in the

present case. In Robinson, the police officers went to a house

to serve a warrant on the plaintiff. Id. at 403, 238 S.E.2d at

630. Here, Officer Funk was not specifically dispatched to

arrest plaintiff; instead, he saw plaintiff walking on the

street and believed him to be Mr. Fearrington, a man whom

Officer Funk “knew” and who had evaded arrest earlier that same

day. Thus, Officer Funk thought that plaintiff was on the verge

of running. Consequently, he did not have the same type of time

prior to arresting plaintiff to exercise due diligence as the

officers did in Robinson. However, in totality, Officer Funk

exercised due diligence by asking plaintiff to stop, which

plaintiff refused to do, and immediately running plaintiff’s

name through NCIC to see if he was, in fact, who he claimed to

be. Consequently, Officer Funk “use[d] reasonable diligence[,]”

Robinson, 34 N.C. App. at 406-407, 238 S.E.2d at 631, to
 -24-
determine whether plaintiff was Mr. Fearrington under these

circumstances.

In summary, under Hill and Robinson, plaintiff has failed

to forecast any evidence, besides mere unsupported allegations,

that Officer Funk acted contrary to his duty; specifically,

plaintiff offered no evidence showing that Officer Funk’s

mistaken belief that plaintiff was Mr. Fearrington was

unreasonable, as set out in Lynch, or that Officer Funk did not

act diligently in determining plaintiff’s true identity.

B. Wantonness and Intent to Injure

“An act is wanton when it is done of wicked purpose, or

when done needlessly, manifesting a reckless indifference to the

rights of others.” Yancey v. Lea, 354 N.C. 48, 52, 550 S.E.2d

155, 157 (2001). In order to establish that Officer Funk acted

with intent to injure, this Court has noted that:

a plaintiff may not satisfy her burden of
proving that an official's acts were
malicious through allegations and evidence
of mere reckless indifference. Rather, as
discussed supra, the plaintiff must show at
least that the officer's actions were so
reckless or so manifestly indifferent to the
consequences . . . as to justify a finding
of [willfulness] and wantonness equivalent
in spirit to an actual intent

Wilcox, __ N.C. App. at __, 730 S.E.2d at 232 (internal

citations and quotation marks omitted).
 -25-
According to plaintiff’s complaint, Officer Funk “roughly

pulled” plaintiff’s arm behind his back in an attempt to

“inflict great pain” while he was handcuffing plaintiff. After

plaintiff claimed that he was not Mr. Fearrington, Officer Funk

kept plaintiff in handcuffs while his fellow officers checked

plaintiff’s identification card. At one point, Officer Funk

sarcastically asked plaintiff: “Oh? You own a business?” When

plaintiff told Officer Funk that this would not be happening if

he were white, Officer Funk asked plaintiff if it would make him

feel better if he called a black officer. After NCIC verified

plaintiff’s identity, Officer Funk released plaintiff without

apologizing. At the hearing, plaintiff’s counsel attempted to

cast the situation as a result of “race discrimination” based on

the history and “general situation” of how black people are

treated by Chapel Hill police.

Viewing these allegations in a light most favorable to

plaintiff, the evidence tends to show that Officer Funk may have

acted disrespectfully and unprofessionally while attempting to

verify plaintiff’s identity or even refusing to apologize after

the incident. However, once plaintiff’s identity was confirmed

through NCIC, Officer Funk released plaintiff. Furthermore,

there is nothing that establishes a reckless indifference to

plaintiff’s rights during the encounter. As discussed, Officer
 -26-
Funk’s de facto arrest of plaintiff was based on his mistaken,

yet reasonable, belief that he was Mr. Fearrington; accordingly,

under Hill, his de facto arrest was “valid.” In order to verify

plaintiff’s claim that he was not Mr. Fearrington, Officer Funk,

along with other Chapel Hill police officers, ran plaintiff’s

name through central command. As with routine traffic stops, an

officer “may request a driver's license and vehicle

registration, run a computer check, and issue a citation.”

United States v. Green, 740 F.3d 275, 280 (4th Cir. 2014); see

also State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132

(1999) (“After a lawful stop, an officer may ask the detainee

questions in order to obtain information confirming or

dispelling the officer's suspicions.”). Here, since the basis

for the initial de facto arrest of plaintiff was valid and it

was not unreasonable to continue detaining plaintiff under the

circumstances after his identity was verified, Officer Funk was

entitled to run plaintiff’s name to determine whether he had any

outstanding warrants.

Moreover, although plaintiff alleges that Officer Funk

“roughly” put him in handcuffs and tried to inflict great pain,

plaintiff has failed to allege any facts that Officer Funk’s

conduct was wanton or done with a reckless indifference to

plaintiff’s rights as compared to what a reasonable police
 -27-
officer would do in Officer Funk’s position. Believing

plaintiff was someone else who had arrest warrants issued

against him and had evaded police earlier that day, Officer Funk

seized plaintiff while confirming his belief. It is undeniable

that the act of being handcuffed could hardly be characterized

as anything but uncomfortable and, likely, painful. However,

plaintiff has failed to plead any facts to suggest that Officer

Funk took additional steps while handcuffing plaintiff to make

the experience any more painful, besides unsupported allegations

that Officer Funk “intended” to inflict pain. Without more,

plaintiff’s bare contention that the handcuffs were painful is

not enough to rise to the level of wanton or show an intent to

injure.

Consequently, plaintiff has failed to produce any evidence

showing that Officer Funk acted with a reckless indifference to

plaintiff’s rights. Besides vague allegations that Officer Funk

spoke to plaintiff sarcastically and treated him

disrespectfully—what plaintiff’s counsel classified as “arrogant

and chauvinist talk” at the motion hearing—and unsupported

claims that Officer Funk handcuffed him in such a way as to

cause him “great pain,” plaintiff has failed to forecast any

evidence that Officer Funk acted wantonly or with an intent to

injure.
 -28-
In summary, while the initial burden was on Officer Funk to

show the absence of any genuine issue of material fact that he

did not act with malice, we believe that he met this burden, and

he was entitled to the affirmative defense of public official

immunity. Specifically, the foregoing evidence, taken in the

light most favorable to plaintiff, is insufficient to raise a

genuine issue of fact as to the existence of the elements of

malice, i.e., that Officer Funk’s actions were contrary to his

duty, wanton, and so reckless as to justify a finding of intent

to injure. While we do not disagree that the evidence may show

that Officer Funk acted with reckless indifference prior to

arresting plaintiff and during his interactions with him,

plaintiff has failed to establish Officer Funk acted with

malice, even with all discrepancies resolved in his favor, which

is a required showing to overcome the public official immunity

doctrine. See Griffith v. Glen Wood Co., Inc., 184 N.C. App.

206, 210, 646 S.E.2d 550, 554 (2007) (“Summary judgment is

appropriate if . . . the non-moving party is unable to overcome

an affirmative defense offered by the moving party.”).

Therefore, the trial court erred in denying his motion for

summary judgment on this basis.

Conclusion
 -29-
Based on the foregoing reasons, taking the evidence in a

light most favorable to plaintiff, plaintiff has failed to

forecast evidence that Officer Funk acted with malice.

Therefore, Officer Funk was entitled to the affirmative defense

of public official immunity, and the trial court erred in

denying his motion for summary judgment on this basis.

REVERSED.

Judge McCULLOUGH concurs.

Judge GEER dissents by separate opinion.
 NO. COA13-323

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

CHARLES D. BROWN,
Plaintiff,

v. Orange County
No. 11 CVS 1204
TOWN OF CHAPEL HILL, CHAPEL HILL
POLICE OFFICER D. FUNK, in his
official and individual capacity,
and OTHER CHAPEL HILL POLICE
OFFICERS, in their individual and
official capacities, to be named
when their identities and level of
participation becomes known,
Defendants.

GEER, Judge dissenting.

The sole issue on appeal is whether there exists a genuine

issue of material fact regarding whether Officer Funk acted with

malice and, therefore, is not entitled to public official

immunity. I believe that the majority opinion has shown only

that no issue of genuine fact exists regarding whether Officer

Funk had reasonable suspicion to stop plaintiff. Yet, because

Officer Funk arrested plaintiff, he was required to have more

than a suspicion; he could not arrest plaintiff without probable

cause. The majority -- which concludes that Officer Funk in

fact arrested plaintiff -- bases its holding that Officer Funk

did not act improperly in arresting plaintiff almost entirely on
 -2-

an investigatory stop case, State v. Lynch, 94 N.C. App. 330,

380 S.E.2d 397 (1989), that concluded only that the officer had

reasonable suspicion. The majority holds that it is

permissible, when an officer suspects that an individual is

another person, to arrest that person and then seek

identification. That holding is an extraordinary undermining of

the protections of the Fourth Amendment.

In addition, I believe that the majority improperly applies

the applicable standard of review by (1) failing to require

defendant Officer Funk to meet his initial burden of showing an

absence of any genuine issue of material fact and (2) failing to

view the evidence, including that presented by Officer Funk, in

the light most favorable to plaintiff, the non-moving party.

Because the majority failed to properly apply the standard of

review and, at most, merely determined that Officer Funk had a

reasonable suspicion sufficient to stop plaintiff, I

respectfully dissent.

Discussion

It is well established that:

[r]egardless of who has the burden of proof
at trial, upon a motion for summary judgment
the burden is on the moving party to
establish that there is no genuine issue of
fact remaining for trial and that he is
entitled to judgment as a matter of law.
Thus, a defendant moving for summary
 -3-

judgment assumes the burden of producing
evidence of the necessary certitude which
negatives the plaintiff's claim. Until the
moving party makes a conclusive showing, the
non-moving party has no burden to produce
evidence.

Marlowe v. Piner, 119 N.C. App. 125, 127-28, 458 S.E.2d 220, 222

(1995) (emphasis added) (internal citations omitted).

Generally, "summary judgment is not appropriate when there are

conflicting versions of the events giving rise to the action, or

when there is no conflict about the events that occurred, but

the legal significance of those events is determined by a

reasonable person test." Griffith v. Glen Wood Co., 184 N.C.

App. 206, 210, 646 S.E.2d 550, 554 (2007).

With respect to malice, the exception to public official

immunity at issue in this case, our Supreme Court has held: "A

defendant acts with malice when he wantonly does that which a

man of reasonable intelligence would know to be contrary to his

duty and which he intends to be prejudicial or injurious to

another." In re Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d

888, 890 (1984). This Court has recently interpreted this

definition to mean that "a malicious act is an act (1) done

wantonly, (2) contrary to the actor's duty, and (3) intended to

be injurious to another." Wilcox v. City of Asheville, ___ N.C.

App. ___, ___, 730 S.E.2d 226, 230 (2012), appeal dismissed and
 -4-

disc. review denied, ___ N.C. ___, 738 S.E.2d 363, 401 (2013).

Regarding whether Officer Funk acted contrary to his duty,

the majority concludes that under the totality of the

circumstances, Officer Funk's mistaken belief that plaintiff was

Mr. Fearrington was reasonable and, therefore, plaintiff's

arrest was not contrary to Officer Funk's duty. I disagree.

Whether a police officer has acted contrary to his duty

when arresting an individual is determined by whether the

officer has complied with N.C. Gen. Stat. § 15A-401 (2013) and

the Fourth Amendment. See Bailey v. Kennedy, 349 F.3d 731, 746

(4th Cir. 2003) (holding officer not entitled to public official

immunity for false arrest claim when arrest not in accordance

with N.C. Gen. Stat. § 15A-401 and "contrary to [officer's]

duty"); Glenn-Robinson v. Acker, 140 N.C. App. 606, 615, 538

S.E.2d 601, 609 (2000) ("'The Fourth Amendment prohibits a

police officer from arresting a citizen except upon probable

cause.'" (quoting Rogers v. Powell, 120 F.3d 446, 452 (3d Cir.

1997))); N.C. Gen. Stat. § 15A-401(b)(2) (providing in pertinent

part that officer may make warrantless arrest if he has probable

cause to believe individual has committed felony or committed

misdemeanor and will not be apprehended or may cause physical

injury to self or others or property damage if not immediately

arrested). As this Court explained in Glenn-Robinson, "'[a]
 -5-

false arrest is an arrest without legal authority and is one

means of committing a false imprisonment.'" 140 N.C. App. at

624, 538 S.E.2d at 615 (quoting Marlowe, 119 N.C. App. at 129,

458 S.E.2d at 223).

As this Court has explained, "there are generally two ways

in which a person can be 'seized' for Fourth Amendment purposes:

(1) by arrest, which requires a showing of probable cause; or

(2) by investigatory detention, which must rest on a reasonable,

articulable suspicion of criminal activity." State v.

Carrouthers, 213 N.C. App. 384, 388, 714 S.E.2d 460, 463 (2011).

In this case, the parties disagreed on whether Officer Funk

arrested plaintiff or whether Officer Funk merely conducted an

investigatory stop. I agree with the majority that the evidence

is sufficient to allow a jury to find that Officer Funk arrested

plaintiff and that plaintiff's seizure was not just an

investigatory stop. Nevertheless, I believe that the majority,

despite holding that Officer Funk arrested plaintiff,

essentially applies the standards for an investigatory stop in

deciding that Officer Funk did not act contrary to his duty.

Because of its failure to recognize the differences between the

two types of seizures, the majority erroneously concludes that

the evidence necessary to support a stop based on mistaken

identity is sufficient to support an arrest based on mistaken
 -6-

identity.

"An investigatory stop is a 'brief stop of a suspicious

individual[] in order to determine his identity or to maintain

the status quo momentarily while obtaining more information.'"

State v. White, 214 N.C. App. 471, 476, 712 S.E.2d 921, 925

(2011) (quoting Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed.

2d 612, 617, 92 S. Ct. 1921, 1923 (1972)). When, however, "the

duration or nature of the intrusion exceeds the permissible

scope [of an investigatory stop], a court may determine that the

seizure constituted a de facto arrest that must be justified by

probable cause, even in the absence of a formal arrest." State

v. Milien, 144 N.C. App. 335, 340, 548 S.E.2d 768, 772 (2001).

The distinction between an investigatory stop and an arrest

reveals that an officer cannot justify an arrest by the need to

obtain more information -- probable cause necessarily must mean

more than a need to obtain additional information to confirm or

dispel an officer's belief or concern.

With respect to the issue whether plaintiff presented

sufficient evidence to raise an issue of fact regarding whether

Officer Funk had probable cause to arrest him, this Court has

noted:

"The existence or nonexistence of probable
cause is a mixed question of law and fact.
If the facts are admitted or established, it
 -7-

is a question of law for the court.
Conversely, when the facts are in dispute
the question of probable cause is one of
fact for the jury."

Glenn-Robinson, 140 N.C. App. at 619, 538 S.E.2d at 612 (quoting

Pitts v. Pizza, Inc., 296 N.C. 81, 87, 249 S.E.2d 375, 379

(1978)). Where the parties present substantially different

versions of the facts relating to probable cause, as is true in

this case, summary judgment is inappropriate and instead the

issue must go to the jury who, as "[t]he trier of fact[,] must

determine exactly what transpired and, based on those facts,

determine if probable cause existed." Id. at 621, 538 S.E.2d at

612.

"'The test for whether probable cause exists is an

objective one -- whether the facts and circumstances, known at

the time, were such as to induce a reasonable police officer to

arrest, imprison, and/or prosecute another.'" Thomas v.

Sellers, 142 N.C. App. 310, 315, 542 S.E.2d 283, 287 (2001)

(emphasis added) (quoting Moore v. Evans, 124 N.C. App. 35, 43,

476 S.E.2d 415, 422 (1996)). The majority, however, fails to

consider the facts and circumstances as known to Officer Funk at

the time of the detention. Instead, the majority, in effect,

determines post hoc what Officer Funk could have concluded given

the information before this Court. Furthermore, contrary to the
 -8-

approach adopted by the majority, we must, on a motion for

summary judgment, determine what Officer Funk knew by viewing

the evidence in a light most favorable to plaintiff. We do not

take Officer Funk's assertions at face value when the record

contains evidence drawing those assertions into doubt.

Officer Funk justifies his arrest of plaintiff on his claim

that he mistakenly believed plaintiff was a man named Mr.

Fearrington. In cases of an arrest based upon mistaken

identity, if "'the police have probable cause to arrest one

party, and [if] they reasonably mistake a second party for the

first party, then the arrest of the second party is a valid

arrest.'" Hill v. California, 401 U.S. 797, 802, 28 L. Ed. 2d

484, 489, 91 S. Ct. 1106, 1110 (1971) (quoting Hill v.

California, 96 Cal. 2d 550, 553, 72 Cal. Rptr. 641, 643, 446

P.2d 521, 523 (1968)). Under the reasonable mistake test, an

officer's "subjective good-faith belief alone is insufficient to

validate the arrest." United States v. Glover, 725 F.2d 120,

122 (D.C. Cir. 1984). Rather, the Court must determine whether

the arrest was objectively reasonable in light of the totality

of the circumstances. Id.

Here, the majority relies almost exclusively on the

photographs of plaintiff and Mr. Fearrington in the record which

establish, in the majority's opinion, that the two men are
 -9-

similar in appearance. Based on the photographs, the majority

concludes that it would be objectively reasonable for Officer

Funk to confuse one for the other. By relying on these

photographs, the majority has not required that Officer Funk

meet his initial burden as the moving party. Officer Funk did

not, in arguing that he mistakenly believed plaintiff was Mr.

Fearrington, come forward with evidence that no issue of fact

existed as to his opportunity to see plaintiff's face and that

he had a reasonable basis for believing plaintiff was, in fact,

Mr. Fearrington.

In considering the totality of the circumstances, a variety

of factors may be relevant. For example, in Hill, Glover, and

State v. Frazier, 318 N.W.2d 42 (Minn. 1982) (relied upon by the

court in Glover), the courts looked at (1) the basis and

specificity of the officer's knowledge of the suspect's

appearance, (2) how clearly the officer was able to observe the

individual, (3) the discrepancies between the description of the

suspect and the individual the officer observed, (4) the

officer's reasons for believing the subject would be present in

the location arrested, including proximity in time and distance

of suspect's last known location, and (5) the individual's

behavior.

Here, Officer Funk presented no evidence regarding the
 -10-

basis for his knowledge of Mr. Fearrington's appearance. While

the majority asserts that Officer Funk "knew" Mr. Fearrington,

nothing in Officer Funk's affidavit supports the majority's

claim. Officer Funk stated only that he knew that Mr.

Fearrington had outstanding warrants and that he had evaded

arrest earlier in the day. Officer Funk provides no explanation

of how he knew what Mr. Fearrington looked like.

Moreover, Officer Funk provided no specific explanation of

what about plaintiff resembled Mr. Fearrington. He merely

asserted that plaintiff and Mr. Fearrington both "have similar

facial features," citing photographs attached to his affidavit,

without expressly indicating whether he had that knowledge at

the time of the arrest or what facial features he considered

similar. Significantly, the photographs did not come into

existence until several months after the arrest. As indicated

by the URLs at the bottom of the photographs of both plaintiff

and Mr. Fearrington, these photographs came from an article

published in the periodical The Independent Weekly. In other

words, the only basis presented by Officer Funk in support of

his claim that plaintiff and Mr. Fearrington resembled each

other was a newspaper article published three months after the

arrest. Because Officer Funk bore the initial burden of

establishing a lack of any issue of fact and because, in any
 -11-

event, we must view the evidence in a light most favorable to

plaintiff, we may not infer, as the majority implicitly does,

that Officer Funk was familiar with Mr. Fearrington's appearance

or knew of the similarities at the time of the arrest.

As for Officer Funk's opportunity to observe plaintiff's

facial features, the evidence, when viewed in the light most

favorable to plaintiff, gives rise to a genuine issue of fact to

be resolved by the jury. Officer Funk's own evidence indicates

that plaintiff's hand obscured plaintiff's face and that Officer

Funk decided to follow plaintiff from his patrol car because

"[w]ithout seeing his face I could not be certain that this

subject was not the same individual who had been avoiding arrest

all day." According to Officer Funk, after stepping out of his

patrol car and approaching plaintiff from behind, he "had still

not been able to verify if this was in fact Cuman Fearrington."

Indeed, the majority specifically notes that Officer Funk

claimed that plaintiff concealed his face continuously and that

Officer Funk acknowledged that without seeing plaintiff's face,

he could not be certain that plaintiff was Mr. Fearrington. I

believe a jury could infer from this evidence that Officer Funk

did not get a clear view of plaintiff's face until after he had

proceeded with the arrest. A jury could find Officer Funk's

claim that he reasonably mistook plaintiff for Mr. Fearrington
 -12-

not credible when Officer Funk claimed both that he could not

see plaintiff's face and that the two men had similar facial

features.

Also pertinent in this case is whether Officer Funk had

reason to believe that Mr. Fearrington would be present in the

location where plaintiff was arrested, including the proximity

in time and distance of Mr. Fearrington's last known location to

the time and place of plaintiff's arrest. Here, Officer Funk

indicated only that Mr. Fearrington had evaded arrest in the

"Central Business District" of Chapel Hill earlier that day.

The jury could decide that the fact that Mr. Fearrington was

trying to avoid being arrested somewhere in downtown Chapel Hill

during the day did not make it reasonably likely that he was the

African-American male walking down a main street in front of a

convenience store and restaurant that night.

In addition, if an officer has any doubt as to whether the

individual is the suspect in the arrest warrant, "the officer

must make immediate reasonable efforts to confirm the suspect's

identity." Glover, 725 F.2d at 123. See also Lynch, 94 N.C.

App. at 333, 380 S.E.2d at 399 ("When an officer is unsure of

the identity of a suspect, he must take reasonable steps to

confirm the identity of the individual under suspicion.").

Here, while Officer Funk admitted to uncertainty as to
 -13-

plaintiff's identity, he proceeded with the arrest before making

any efforts to confirm plaintiff's identity. He did not ask

plaintiff to identify himself until after he had placed him in

handcuffs, and when plaintiff told him that he was not Mr.

Fearrington and Officer Funk viewed his identification, he

disregarded it. A reasonable juror could find that it was

unreasonable to disregard the identification and that the

"verification" of plaintiff's identity -- and the subsequent

search of NCIC for outstanding warrants -- was really an attempt

to cover up the officers' mistake in hopes of manufacturing

probable cause to detain plaintiff.

While the majority opinion states that "it was not

unreasonable for Officer Funk to not believe plaintiff's claim

[that he was not Mr. Fearrington] until he saw identification,"

that fact at most might justify Officer Funk's stopping

plaintiff and asking for identification. The majority cites no

authority -- and I have found none -- that authorizes an

officer, with doubts about the identity of a suspect, to arrest

the individual and ask questions later.

I believe that the totality of the circumstances in this

case -- based on the evidence viewed in the light most favorable

to plaintiff -- would permit a jury to find that Officer Funk

had not acted reasonably when mistakenly arresting plaintiff.
 -14-

Defendant, however, contends that the United States Supreme

Court's decision in Hill requires a different result.

In Hill, the United States Supreme Court held that a

mistaken arrest was valid when the officers went to the address

of the suspect and, in that apartment, which had a locked door,

found a person matching the description of the suspect. 401

U.S. at 803, 28 L. Ed. 2d at 489, 91 S. Ct. at 1110. Although

the person claimed to be someone else, the Supreme Court noted

that "aliases and false identifications are not uncommon" and

that the person in the apartment did not have a convincing

explanation regarding how he entered the apartment if he was not

the suspect. Id. Further, the person denied knowing about any

firearms being in the house, although a pistol was sitting in

plain view. Id. Based on this evidence -- a man matching the

suspect's description at the suspect's known address -- the

Court concluded that "the officers' mistake was understandable

and the arrest a reasonable response to the situation facing

them at the time." Id. at 804, 28 L. Ed. 2d at 490, 91 S. Ct.

at 1111.

Here, in contrast, the arrest did not take place at a

location where Mr. Fearrington was known to be, the evidence is

not specific regarding the degree to which plaintiff matched Mr.

Fearrington's description as known to Officer Funk, and
 -15-

plaintiff's explanation for why he was walking up Rosemary

Street at that particular time was not lacking in credibility.

Moreover, plaintiff's evidence indicated that he did not act

suspiciously.

I find this case more analogous to Frazier, 318 N.W.2d at

44, in which the Minnesota Supreme Court concluded that a

mistaken arrest was unreasonable. In Frazier, the officers saw

the defendant at night outside a bar where the actual suspect

had been seen within the previous three days. The officers

viewed her from 500 feet away in a dimly lit area, decided that

it was the suspect, and arrested her. The Minnesota Supreme

Court concluded that "[g]iven the hastiness of the deputies in

concluding that defendant was [the intended arrestee], given the

evidence of the defendant's differing appearance, and given the

fact that the arrest did not occur at [the intended arrestee's]

residence or even at a place which police reliably knew she

frequented, we conclude that the deputies acted unreasonably in

believing that defendant was [the intended arrestee]." Id.

The Minnesota Supreme Court, therefore, concluded "the

arrest was illegal." Id. I find Frazier persuasive and

supportive of a conclusion that plaintiff, in this case, has

presented sufficient evidence to raise an issue of fact

regarding whether his arrest was valid.
 -16-

While I have not found -- and the parties have not cited --

any North Carolina case specifically addressing the issue in

this case, this Court's decision in State v. Cooper, 186 N.C.

App. 100, 649 S.E.2d 664 (2007), supports my conclusion that

plaintiff's evidence shows that Officer Funk lacked probable

cause to arrest plaintiff. The issue in Cooper was whether a

police officer had reasonable suspicion to stop an individual he

suspected of robbing a convenience store.

In Cooper, the officer heard a report that there was a

convenience store robbery committed by a black male. Id. at

101, 649 S.E.2d at 665. The officer knew that there was a path

running from the convenience store to Lake Ridge Drive, and five

to 10 minutes after the robbery, the officer found the

defendant, a black male, walking down Lake Ridge Drive near the

path. Id. at 102, 649 S.E.2d at 665-66. The officer stopped

and frisked the defendant. Id., 649 S.E.2d at 666.

This Court found that due to the vague description of the

suspect as a "black male," lack of information that the robber

had fled in the direction of the path, and the fact that the

defendant did not engage in suspicious behavior and fully

cooperated with the officer, the officer did not have reasonable

suspicion to believe that the individual he saw was the robber.

Id. at 107, 649 S.E.2d at 669. The Court explained that to hold
 -17-

otherwise would be to hold that "police, in the time frame

immediately following a robbery committed by a black male, could

stop any black male found within a quarter of a mile of the

robbery." Id.

Similarly, here, a jury could reasonably infer from the

lack of evidence presented by Officer Funk regarding his

knowledge of Mr. Fearrington's appearance that Officer Funk

suspected plaintiff could be Mr. Fearrington merely because he

was a black man walking in the vicinity of the general area

where Mr. Fearrington had evaded arrest earlier in the day. As

established by Cooper, these facts would be insufficient to show

reasonable suspicion to justify an investigatory stop, much less

an arrest. Id. See State v. Peele, 196 N.C. App. 668, 670, 675

S.E.2d 682, 685 (2009) ("Reasonable suspicion is a 'less

demanding standard than probable cause and requires a showing

considerably less than preponderance of the evidence.'"

(quoting State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439

(2008))).

Officer Funk and the majority, however, claim that

plaintiff was intentionally hiding his face, ignored Officer

Funk's repeated requests to stop, increased his pace of walking,

and had unspecified similar facial features to Mr. Fearrington.

In making this argument, the majority and defendant are viewing
 -18-

the evidence in the light most favorable to Officer Funk,

contrary to the proper standard of review for summary judgment.

We are required to accept as true plaintiff's account that he

did not hide his face, but merely scratched his head; that he

never increased his walking pace; and that he stopped as soon as

he realized that Officer Funk was talking to him.

The majority, nonetheless, points to Lynch as establishing

that photographs suggesting that two men looked similar is

sufficient for a mistaken arrest, especially if the officer then

attempts to verify the arrestee's identity after the arrest.

This Court, however, specifically noted in Lynch that it was not

providing any guidance as to how the Court should determine the

reasonableness of a mistaken identity arrest: "Under the facts

of this case, we need not decide whether the officer's initial

mistake justified an arrest; it was at least sufficient to

establish a reasonable basis to stop defendant and require him

to identify himself." 94 N.C. App. at 333, 380 S.E.2d at 399.

The Court proceeded to say, with respect to an investigatory

stop, that "[w]hen an officer is unsure of the identity of a

suspect, he must take reasonable steps to confirm the identity

of the individual under suspicion." Id.

Contrary to the majority opinion's assertion, nothing in

Lynch suggests that a mistaken identity arrest is reasonable so
 -19-

long as the officers use diligence to confirm the identity of

the individual after initiating the arrest. The majority

misreads Lynch when it states that "after the defendant

attempted to flee, officers were then authorized to arrest the

defendant in order to 'ascertain his identity.'" (Quoting

Lynch, 94 N.C. App. at 333, 380 S.E.2d at 399.) In Lynch, after

upholding the stop of the defendant as constitutional, the Court

then concluded that the arrest was permitted -- not to discover

the defendant's identity -- but because the defendant actually

fled: "Because defendant had not identified himself [when

stopped], the officers had no choice but to apprehend him in

order to ascertain his identity." Lynch, 94 N.C. at 333, 380

S.E.2d at 399. Nothing in Lynch suggests that it is appropriate

to arrest someone who has not fled and who has not yet been

asked to identify himself.

The majority's holding, in effect, allows police officers

to proceed with an arrest based upon less than probable cause

and arrest first, investigate later. I believe that this is an

improper interpretation of the rule adopted by this Court in

Robinson v. City of Winston-Salem, 34 N.C. App. 401, 238 S.E.2d

628 (1977).

Robinson addressed the question "whether in an action for

false arrest or false imprisonment the officer who arrests the
 -20-

wrong person is strictly liable or is liable only in the absence

of reasonable diligence." Id. at 406, 238 S.E.2d at 631. The

Court in Robinson acknowledged that the rule adopted by the

majority of courts is that "the officer will not be liable for

false imprisonment for mistaking the identity of the person

named in a warrant if he exercises reasonable diligence to

ascertain the identity correctly before he serves the warrant."

Id. (emphasis added). Noting that the alternative strict

liability approach "imposes an unreasonable burden upon the

officer who is both careful and diligent," Robinson adopted the

majority rule. Id.

The majority in this case asserts that "when the officer

must use reasonable diligence is not specifically enunciated in

Robinson." (Emphasis added.) In support of this assertion, the

majority opinion plucks an isolated quotation from Robinson,

disregarding the Court's primary articulation of the majority

rule quoted above and disregarding the cases relied upon by the

Court as support for the rule. The majority rule as initially

articulated in Robinson, expressly and unambiguously states that

an officer must exercise reasonable diligence "before he serves

the warrant." Id.

The Court then, "[f]or examples of cases following this

rule" refers to three decisions from other jurisdictions. Each
 -21-

of those decisions expressly holds that the officer must

exercise due diligence prior to effecting the arrest. See

Miller v. Fano, 134 Cal. 103, 109, 66 P. 183, 185 (1901) (noting

an officer "owes a duty to the public and to the party about to

be arrested" and "should use prudence and diligence to find out

if the party arrested is the party described in [the] warrant"

(emphasis added)), disapproved of by Hagberg v. California Fed.

Bank FSB, 32 Cal. 4th 350, 81 P.3d 244 (2004); Wallner v. Fid. &

Deposit Co. of Maryland, 253 Wis. 66, 70, 33 N.W.2d 215, 217

(1948) ("The officer is liable if he fails to take proper

precaution to ascertain the right person, or if he refuses

information offered that would have disclosed his mistake, or if

he detains the person an undue length of time without taking

proper steps to establish his identity."); State ex rel.

Anderson v. Evatt, 63 Tenn. App. 322, 328, 471 S.W.2d 949, 952

(1971) (finding evidence sufficient to support jury's finding

officers guilty of "gross negligence in failing to make an

additional investigation or inquiry as to the true identity of

plaintiff before placing him under arrest" (emphasis added)).

In concluding that issues of fact precluded summary

judgment regarding whether the defendant police officers had

exercised due care in arresting the plaintiff, the Court

specifically pointed to evidence -- including contradictions in
 -22-

the defendants' evidence and omissions on key factors in the

defendants' affidavits -- regarding the lack of efforts to

determine whether the plaintiff was the individual named in the

warrant prior to arresting the plaintiff. Robinson, 34 N.C.

App. at 407-08, 238 S.E.2d at 632. The Court did not discuss

what the officers could have done post-arrest. Instead, the

Court noted as additional evidence of liability that "even after

the officers knew that they had arrested the wrong person,

plaintiff was still held in jail overnight before he was allowed

to go free." Id. at 408, 238 S.E.2d at 632. In other words,

the defendants could be held liable for further detaining the

plaintiff after they knew of the mistaken arrest.

Nothing in Robinson suggests that an officer may -- as

occurred here -- arrest and then conduct the due diligence after

the fact. The Court's purpose in adopting the due diligence

rule in Robinson was to ensure that officers who are both

"careful and diligent" will not be held civilly liable for an

unlawful arrest. Id. at 406, 238 S.E.2d at 631. The majority's

interpretation of Robinson would allow an officer who was not

"careful and diligent" in ascertaining the arrestee's identity

prior to initiating an arrest to avoid liability so long as he

later uses "due diligence" to confirm the identity afterwards.

See id. I do not believe that the majority opinion is
 -23-

consistent with either the express holding in Robinson or its

reasoning.

Here, while Officer Funk admitted to uncertainty as to

plaintiff's identity, he proceeded with the arrest before making

any efforts to confirm plaintiff's identity. He did not ask

plaintiff to identify himself until after he had placed him in

handcuffs and declared plaintiff was under arrest, and when

plaintiff told him that he was not Mr. Fearrington and Officer

Funk viewed his identification, he disregarded it. While

Officer Funk may have had reasonable suspicion to stop plaintiff

and ask him to identify himself based on what he knew and should

have then conducted due diligence before arresting plaintiff,

Lynch and Robinson do not support the majority's assumption that

the same level of knowledge -- without any due diligence in

verifying plaintiff's identity -- is sufficient to support both

an arrest and an investigatory stop.

The majority claims that Robinson is distinguishable on the

facts. The "facts" on which the majority relies are, however,

either unsupported by the record or represent Officer Funk's

version of what occurred. Contrary to the majority opinion's

assertion, there is no evidence that Officer Funk "knew" Mr.

Fearrington, plaintiff's evidence indicated that he was not

about to flee, and according to plaintiff, Officer Funk did not
 -24-

have to order him to stop "several times," as the majority

states, but rather he stopped immediately after he realized

Officer Funk was talking to him. Further, the majority's

purported distinction of Robinson does not explain why Officer

Funk, in this case, could not have stopped plaintiff and asked

for his identification prior to arresting him.

Moreover, the majority's reasoning cannot be reconciled

with this State's choice not to enact a "stop and identify"

statute. The United States Supreme Court in Hiibel v. Sixth

Judicial Dist. Court of Nevada, 542 U.S. 177, 187, 159 L. Ed. 2d

292, 303, 124 S. Ct. 2451, 2459 (2004), recognized that under

the Fourth Amendment, an individual is not required to answer an

officer's questions or identify himself during an investigative

stop. Nevertheless, a State "stop and identify" statute

"requiring a suspect to disclose his name in the course of a

valid Terry stop is consistent with Fourth Amendment

prohibitions against unreasonable searches and seizures." Id.

at 188, 159 L. Ed. 2d. at 304, 124 S. Ct. at 2459.

North Carolina, however, does not have a "stop and

identify" statute. Therefore, although Officer Funk could have

asked plaintiff to identify himself, he could not have compelled

plaintiff to do so. See In re D.B., 214 N.C. App. 489, 495-96,

714 S.E.2d 522, 526-527 (2011) (noting North Carolina does not
 -25-

have a "stop and identify" statute and holding that during a

Terry stop, an officer is not permitted to search for a person's

identification in order to protect himself or to seize an

identification card, but may ask for identification). The

majority, however, holds that it is within the scope of an

officer's duty to arrest a person and then demand

identification.

Further, Officer Funk should not have been allowed to

extend a mistaken arrest to investigate plaintiff, without

reasonable suspicion of any criminal activity, to see if he

could justify the arrest after the fact. As the United States

Supreme Court has explained:

The scope of the intrusion permitted will
vary to some extent with the particular
facts and circumstances of each case. This
much, however, is clear: an investigative
detention must be temporary and last no
longer than is necessary to effectuate the
purpose of the stop. Similarly, the
investigative methods employed should be the
least intrusive means reasonably available
to verify or dispel the officer's suspicion
in a short period of time.

Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S.

Ct. 1319, 1325-26 (1983). Certainly, if an investigative stop

must end as soon as its purpose is completed, then an arrest

should cease as soon as the officers learn that it was mistaken.

Since I know of no authority that would allow a mistakenly
 -26-

arrested person, not subject to a traffic stop, to be detained

to conduct a database search for other charges, Officer Funk

should have released plaintiff as soon as he knew he had made a

mistake.

In sum, I would hold that the evidence is sufficient to

support the conclusion that defendant acted contrary to his duty

by arresting plaintiff without probable cause. Plaintiff must

also show, however, that defendant acted wantonly and with

intent to injure. "[E]vidence of constructive intent to injure

may be allowed to support the malice exception to [public

official] immunity." Wilcox, ___ N.C. App. at ___, 730 S.E.2d

at 232. "[A] showing of mere reckless indifference is

insufficient, and a plaintiff seeking to prove malice based on

constructive intent to injure must show that the level of

recklessness of the officer's action was so great as to warrant

a finding equivalent in spirit to actual intent." Id. Such a

showing would necessarily also satisfy the first requirement

that the defendant act wantonly. See In re Grad, 312 N.C. App.

at 313, 321 S.E.2d at 890-91 ("'An act is wanton when it is done

of wicked purpose, or when done needlessly, manifesting a

reckless indifference to the rights of others.'" (quoting

Givens v. Sellars, 273 N.C. 44, 50, 159 S.E.2d 530, 535

(1968))).
 -27-

With regard to the intent to injure prong of malice, the

Fourth Circuit has noted that "North Carolina courts have found

summary judgment inappropriate where there is a genuine issue of

fact as to an officer's state of mind when engaging in allegedly

tortious conduct." Russ v. Causey, 468 F. App'x 267, 276 (4th

Cir. 2012) (finding that officer's conduct in executing an

arrest warrant at funeral demonstrates an intent to injure).

Additionally, in the context of a civil suit for malicious

prosecution, our Supreme Court has noted that it is "well

settled that malice may be inferred from want of probable cause,

e.g., as where there was a reckless disregard of the rights of

others in proceeding without probable cause." Cook v. Lanier,

267 N.C. 166, 170, 147 S.E.2d 910, 914 (1966).

I would find that there are further questions of fact

regarding whether defendant acted wantonly and with intent to

injure plaintiff. The injury in this case is an injury to

plaintiff's Fourth Amendment right to be free from unreasonable

search and seizure. I believe that the evidence is sufficient

to allow a jury to find that Officer Funk acted with an actual

intent to unlawfully detain plaintiff while Officer Funk

attempted to manufacture after-the-fact justification for the

arrest.

The majority dismisses any claim of an intent to injure,
 -28-

reasoning: "Believing plaintiff was someone else who had arrest

warrants issued against him and had evaded police earlier that

day, Officer Funk seized plaintiff while confirming his belief."

This assertion underscores the majority's merging of

investigatory stops and arrests. Controlling authority required

Officer Funk to attempt to "confirm[] his belief" that plaintiff

was Mr. Fearrington prior to arresting him.

In addition, according to plaintiff's verified complaint

and deposition, Officer Funk spoke to plaintiff sarcastically

and disrespectfully in response to plaintiff's assertion that he

was a business owner. The evidence also shows that after

plaintiff told Officer Funk that he was not Mr. Fearrington and

Officer Funk viewed plaintiff's identification, Officer Funk

continued to keep plaintiff in handcuffs while his partner

contacted communications to "verify" his identification and

gather further information that might justify an arrest. When

communications verified plaintiff's identification and could not

find any outstanding warrants that would justify the stop,

Officer Funk removed the handcuffs and left without apologizing

to plaintiff.

Under these circumstances, a reasonable juror could infer

that Officer Funk acted with a level of recklessness toward

plaintiff's rights equivalent in spirit to an actual intent to
 -29-

injure, as required by Wilcox. See Walker v. Briley, 140 F.

Supp.2d 1249, 1263 (N.D. Ala. 2001) (plaintiff made sufficient

showing of malice to survive motion for summary judgment on

immunity grounds where "[t]he evidence, viewed most favorably to

[plaintiff], suggest[ed] that [police officer] had no grounds to

believe [plaintiff] had committed any offense whatsoever but

rather simply did not like [plaintiff] questioning his authority

or suggesting racist motivations").

Unlike the doctrine of qualified immunity in federal cases,

which requires the court to examine the objective reasonableness

of an official's action, "[i]mmunity of public officials to

state law claims . . . involves a determination of the

subjective state of mind of the governmental actor, i.e.,

whether his actions were corrupt or malicious." Andrews v.

Crump, 144 N.C. App. 68, 76, 547 S.E.2d 117, 123 (2001). We

must "determine the defendants' actual knowledge or intentions

regarding the violation of plaintiffs' rights." Id. at 77, 547

S.E.2d at 123. In Andrews, plaintiff's allegation that the

defendants acted with the knowledge that the act was unlawful

and in violation of plaintiff's rights was sufficient to create

an issue of fact regarding whether the official acted with

malice. Id. (observing that "defendants knew [plaintiff] had no

involvement in criminal activity, yet proceeded to file the
 -30-

liens against him anyway").

There are discrepancies in Officer Funk's affidavit, the

radio log from that night, and the incident report prepared two

weeks later, only after an inquiry by the NAACP, and unsigned by

Officer Funk. These discrepancies, among other things, attempt

to shorten the time period that plaintiff was detained. If the

jury chooses to believe plaintiff's testimony regarding the

length of the detention, it could find that Officer Funk's

attempt to hide how long the detention lasted was evidence that

the continued detention was without legitimate justification and

in bad faith.

Further, the African-American officer who arrived at the

scene of plaintiff's arrest after plaintiff questioned whether

he was stopped because of his race does not appear on either the

radio log or in the incident report as being present. Plaintiff

has also presented evidence of comments suggestive of racial

bias.

This evidence could lead a reasonable juror to conclude

that Officer Funk did not act in good faith and acted for

improper motives when he continued to detain plaintiff in

handcuffs after seeing plaintiff's identification. I would hold

that because the evidence supports a finding that Officer Funk

not only acted without probable cause, but additionally that he
 -31-

did so knowingly, this creates a genuine issue of fact as to

whether he acted with intent to injure plaintiff. See also

Glenn-Robinson, 140 N.C. App. at 626, 538 S.E.2d at 616

(evidence that officer arrested plaintiff without probable

cause, appeared angry, and grabbed plaintiff's arm sufficient

evidence that officer acted with malice and was not entitled to

summary judgment on the basis of public official immunity).

I, therefore, would affirm the trial court's denial of

Officer Funk's motion for summary judgment based on public

official immunity. Accordingly, I respectfully dissent.