Bailey v. Kennedy

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

MICHAEL BAILEY; JANE BAILEY; BILLY 
BAILEY,
Plaintiffs-Appellees,
v.  No. 02-1761
D. H. KENNEDY; D. B. WHITLEY;
MIKE CRISP; CITY OF HICKORY,
Defendants-Appellants.

MICHAEL BAILEY; JANE BAILEY; BILLY 
BAILEY,
Plaintiffs-Appellants,
v.  No. 02-1818
D. H. KENNEDY; D. B. WHITLEY;
MIKE CRISP; CITY OF HICKORY,
Defendants-Appellees.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Carl Horn, III, Magistrate Judge.
(CA-00-8-5-H)

Argued: September 23, 2003

Decided: November 17, 2003

Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge
2 BAILEY v. KENNEDY
Affirmed and remanded for further proceedings by published opinion.
Judge Williams wrote the opinion, in which Judge Traxler and Senior
Judge Hamilton joined.

COUNSEL

ARGUED: Robert Danny Mason, Jr., WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for
Appellants. Stephen Luke Largess, FERGUSON, STEIN, CHAM-
BERS, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Char-
lotte, North Carolina, for Appellees. ON BRIEF: James R. Morgan,
Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Winston-Salem, North Carolina, for Appellants.

OPINION

WILLIAMS, Circuit Judge:

Officers D.H. Kennedy, D.B. Whitley, Mike Crisp, and the City of
Hickory appeal the district court’s denial of qualified immunity and
public officers’ immunity on several of Michael, Jane, and Billy Bai-
ley’s federal constitutional and state law claims. The Baileys’ claims
arose in connection with two separate incidents: the seizure of
Michael Bailey1 on May 27, 1998, inside the home of his parents,
Jane and Billy Bailey; and the arrest of Michael Bailey on September
3, 1998. As discussed below, accepting the facts as the district court2
viewed them in denying qualified immunity, the police officers vio-
lated clearly established federal law. In addition, under North Caro-
lina law, an officer of reasonable intelligence would have known that
the police officers’ actions were contrary to their duty. Accordingly,
1
The record indicates that Michael was 41 years-old at the time these
events took place.
2
The parties consented to have the case decided by a Magistrate Judge
pursuant to 28 U.S.C.A. § 636(c) (West Supp. 2003). For ease of refer-
ence, we refer to the magistrate judge as the district court throughout.
 BAILEY v. KENNEDY 3
we affirm the district court’s denial of qualified immunity and public
officers’ immunity.

The Baileys cross-appeal the district court’s grant of summary
judgment to the police officers and the City of Hickory on the Bai-
leys’ procedural due process claim, and its denial of summary judg-
ment on two of their state law claims. Because we do not have
jurisdiction over this interlocutory cross-appeal, see Swint v. Cham-
bers County Comm., 514 U.S. 35 (1995), we grant the motion to dis-
miss the cross-appeal.

I.

On May 27, 1998, Officers Whitley and Kennedy, police officers
with the City of Hickory, North Carolina, took Michael Bailey invol-
untarily out of his parents’ home to a hospital for an emergency men-
tal evaluation. Accepting the facts as the district court viewed them,
Michael was riding his bike while intoxicated before the officers were
called.3 He rode to his neighbor’s house and fell down. His neighbor,
Ms. Matheson, called 911. The 911 operator "relayed the following
report to a City police communications operator: ‘Mike Bailey
advised a neighbor that he is going home to commit suicide. He is
intoxicated and has been depressed.’" (J.A. at 75.) Officers Whitley
and Kennedy responded separately to the call. Officer Whitley arrived
at the Baileys’ home first. The district court described the subsequent
events as follows:

It is undisputed that Michael was home alone when
Defendant Whitley arrived and knocked on the front door of
the house. In the light most favorable to the Plaintiffs,
3
We recognize that the police officers hotly dispute what happened on
the afternoon of May 27. As discussed below, our jurisdiction to consider
an appeal from the denial of qualified immunity is limited. We must
accept the facts as the district court viewed them and "determine
whether, based on those facts, a reasonable person in the defendant’s
position could have believed that he or she was acting in conformity with
the clearly established law at the time." Gray-Hopkins v. Prince
George’s County, Md., 309 F.3d 224, 229 (4th Cir. 2002). Accordingly,
we quote at length from the district court’s recitation of the facts.
4 BAILEY v. KENNEDY
Michael admitted Defendant Whitley into the house and
returned to sit at the dining table where he was eating lunch.
Defendant Whitley asked Michael a series of questions,
which Michael answered to Defendant Whitley’s apparent
satisfaction. Michael denied any thoughts of suicide, but
declined Defendant Whitley’s request to search the rest of
the house, instead directing Defendant Whitley to contact
his father, Plaintiff Billy Bailey, for permission to conduct
a search.

It is undisputed that there were no weapons or any other
evident preparations for a suicide attempt in view in the
foyer, dining room, or kitchen of the house, but Michael tes-
tified in his deposition that he told Defendant Whitley that
his father kept guns locked in a gun safe.3 In the light most
favorable to the Plaintiffs, Michael asked Defendant Whit-
ley to leave, escorted him out of the house, and closed the
front door. . . .

FN.3 Michael Bailey’s deposition testimony that
he told Defendant Whitley about the gun safe is
the first mention in the record of even the possibil-
ity of a gun being in the Bailey residence. In his
deposition, Defendant Whitley could not recall
ever asking Michael about the presence of weap-
ons in the house, but merely asked generally for
permission to search.

There is no evidence . . . that Defendant Whitley voiced
any objection to returning to the porch or made any attempt
to remain inside the house or prevent Michael from closing
the door. Instead, Defendant Whitley stepped out of the
house and allowed Michael to shut the door.

At the same time that Defendant Whitley stepped out the
front door onto the porch, Defendant Kennedy arrived on
the scene, exited his patrol car, and began to walk towards
the front porch. Defendant Whitley rang the doorbell but
 BAILEY v. KENNEDY 5
then stepped a few feet away from the doorway, turned his
back to the door, and attempted to contact his supervisor,
Lieutenant Ron Lambreth, via his portable radio.

Even in the light most favorable to the Defendants,
Defendant Whitley said only "we’re going to have to do
something" to Defendant Kennedy, before Defendant Whit-
ley began his radio conversation with his supervisor and
Defendant Kennedy knocked on the front door. . . .

It is undisputed that while [Michael] was . . . speaking
with his sister-in-law on the telephone — that is, while he
was holding the telephone handset to his ear — Michael
reopened the front door and faced Defendant Kennedy.

In the light most favorable to the Plaintiffs, after telling
Defendant Kennedy that the suicide report was "crazy," that
the officers "need[ed] to leave," and that he was going to
call his lawyer, Michael attempted to close the door and
turned and reached towards a cabinet where the telephone
base was located. In the light most favorable to the Plain-
tiffs, Defendant Kennedy placed his foot in the doorway to
prevent the door from closing and grabbed Michael’s arm in
an attempt to pull him onto the porch. Defendant Kennedy
then stepped into the house and began to fight with Michael
in an attempt to take him to the floor.

...

. . . [W]hen Defendant Whitley heard sounds of a struggle
and Defendant Kennedy’s verbal commands for Michael to
get down on the floor, he turned and saw Defendant Ken-
nedy fighting with Michael. Defendant Whitley discontin-
ued his radio call and ran to assist Defendant Kennedy.

. . . Michael testified that Defendant Kennedy had tackled
him and knocked him off his feet before Defendant Whitley
came into the house, while Defendant Whitley testified that
it required the efforts of both officers to finally take Michael
to the floor.
6 BAILEY v. KENNEDY
It is undisputed that the officers ultimately succeeded in
holding Michael down on the floor and placed a handcuff on
one of his wrists. Defendant Whitley testified that Defen-
dant Kennedy then struck Michael in the face "multiple"
times with his fist, cutting Michael’s mouth and lips, which
bled and required stitches. Defendant Kennedy testified that
he struck Michael "two or three times" in order to subdue
Michael to the point that he could be handcuffed with his
hands behind his back. Michael testified that his left shoul-
der was also injured by the Defendant officers’ repeated
attempts to grab his arm and apply handcuffs.

The Defendant officers finally handcuffed Michael with
his hands in front, held him down on the floor, and waited
for back-up. At 2:28 p.m., the Defendant officers did a "stop
unit time check" on their portable radios, indicating that
they were not in any danger.

Three minutes later, other officers arrived and placed
flex-cuffs on Michael’s ankles and wrists — this time with
his hands behind his back. . . .

Michael testified . . . that while he was still lying face-
down in the house, with his hands and feet "flex-cuffed,"
that Defendant Kennedy attempted to pick him up by the
arms, which caused great pain in his shoulders. Michael tes-
tified that Defendant Whitley responded to his curses and
shouts of pain by kicking him in the back.

In the light most favorable to the Plaintiffs, one unknown
officer then dragged Michael by his feet to the curbside.

At this point, Plaintiff Billy Bailey arrived at his home.
He observed his son still resisting the officers’ attempts to
place him in a police car and saw that Michael had scratches
on his back and was bleeding profusely from his mouth. Mr.
Bailey told Michael to stop fighting. . . .

. . . After the officers left with Michael, Mr. Bailey went
inside the house where he discovered on the foyer floor a
pool of blood that was two feet in diameter.
 BAILEY v. KENNEDY 7
(J.A. at 76-80.) We note that, in the light most favorable to the Bai-
leys, after the officers arrived at the hospital, they falsely told the doc-
tors that Michael had attacked them and that Michael’s father already
had petitioned to have Michael involuntarily committed. Kennedy
then proceeded to procure a commitment order from the county mag-
istrate without disclosing that Michael was already in custody. In
addition, Kennedy completed the return of service portion of the com-
mitment order by falsely indicating that he had served the order on
Michael.

The second incident alleged in the complaint involved Michael
Bailey’s arrest on September 3, 1998. On the morning of September
3, Michael Bailey consumed an unknown quantity of alcohol. He then
walked from his home to a Wachovia bank branch and attempted to
cash a check. The teller refused to cash the check because Michael
did not have any identification and was not a customer of the bank.
Michael "‘exchanged words’ with bank personnel, including a ‘cuss
word.’" (J.A. at 83.) The bank employees called the police. Sergeant
Sigmon and Officer Kennedy responded to the bank. After talking
with bank employees, who described a man wearing a green tank top
and black pants, Sergeant Sigmon left the bank and drove in the direc-
tion that the bank employees had last seen the man with the green
tank top walking. Officer Kennedy then returned to the scene of an
unrelated accident.

Sergeant Sigmon soon came upon Michael, who met the descrip-
tion of the man who had been in the bank. She asked him where he
was going. "Michael replied that he was going home and asked if the
teller was going to press charges against him. Michael testified that
Sergeant Sigmon responded by saying, ‘No,’ but asked Michael to go
home and return with someone who would confirm that he would not
go back to the bank." (J.A. at 84.)

Michael left Sergeant Sigmon and then returned with his neighbor
Ms. Miller. By the time Michael returned, Officer Kennedy had
arrived. "Kennedy informed Michael that he intended to arrest him for
the events that occurred at the bank; Michael responded that he had
resolved the matter with Sergeant Sigmon and that Defendant Ken-
nedy did not need to become involved. In the light most favorable to
the Plaintiffs — that is, according to Ms. Miller’s affidavit —
8 BAILEY v. KENNEDY
Michael neither threatened nor cursed Defendant Kennedy but only
asked Defendant Kennedy to stop harassing him." (J.A. at 84-85.)

Kennedy then struck Michael in the chin and pushed him back 20
to 30 feet over a bush. Sigmon and Kennedy then sprayed Michael
with pepper spray. "[Michael] did not fight with the officers or resist
arrest in any way, and it is undisputed that he was handcuffed and
placed in the back of Defendant Kennedy’s patrol car."4 (J.A. at 85.)

II.

On January 12, 2000, Michael Bailey, Jane Bailey and Billy Bailey
filed a complaint against D.H. Kennedy, D.B. Whitley, Mike Crisp,
(the police officers) and the City of Hickory, alleging violations of the
United States Constitution, actionable under 42 U.S.C.A. § 1983
(West 2003), as well as violations of the North Carolina Constitution
and North Carolina common tort law. Specifically, Michael Bailey
alleged that on May 27, 1998, Kennedy and Whitley violated his right
to be free from unreasonable seizure under the Fourth Amendment by
seizing him in the absence of probable cause and by using excessive
force; violated his right to procedural due process under the Four-
teenth Amendment;5 and committed the state common law torts of
trespass by a public official, false arrest, false imprisonment, assault
and battery, and gross negligence. Jane and Billy Bailey alleged that
on May 27, 1998, Kennedy and Whitley violated their Fourth Amend-
ment right to be free from unreasonable search; violated their analo-
gous right under the North Carolina Constitution; and committed the
state common law tort of trespass by a public official. In addition,
Michael Bailey alleged that on September 3, 1998, Kennedy and
Crisp violated his Fourth Amendment right to be free from unreason-
4
The complaint and the district court’s opinion include additional facts
about the incidents after Michael was placed in the patrol car and taken
to the police station, including the participation of Officer Crisp. Because
the police officers do not appeal the district court’s denial of qualified
immunity on the excessive force claim and denial of public officers’
immunity on the state law assault and battery claim related to these sub-
sequent events, we do not discuss them further.
5
Michael Bailey also alleged a violation of his substantive due process
rights, but he later voluntarily dismissed that claim.
 BAILEY v. KENNEDY 9
able seizure and committed the state common law torts of trespass by
a public official, false arrest, assault and battery, and malicious prose-
cution. The Baileys sued the City of Hickory on a theory of
respondeat superior based on the police officers’ actions on both May
27 and September 3.

On January 31, 2000, the police officers and the City moved for
summary judgment on all claims, and the Baileys filed a cross-motion
for partial summary judgment on all claims arising out of the May 27
event. The police officers based their motion for summary judgment,
as it related to the federal constitutional claims, on the defense of
qualified immunity, and as it related to the state law claims, on state
law public officers’ immunity.

On April 16, 2002, the district court entered summary judgment in
favor of the City on the federal constitutional claims against it,
entered summary judgment in favor of Kennedy and Whitley on the
procedural due process claim against them, granted qualified immu-
nity to the police officers on the Fourth Amendment false arrest claim
associated with the September 3 incident, and entered summary judg-
ment in favor of the police officers on the malicious prosecution
claim associated with the September 3 incident. The district court
denied the parties’ motions for summary judgment respecting the
remaining claims.

The police officers now appeal the denial of qualified immunity on
the federal constitutional claims associated with the May 27 event; the
denial of public officers’ immunity on the state law claims associated
with the May 27 event; and the denial of public officers’ immunity
on the state law false arrest claim associated with the September 3
event.

The Baileys filed a timely notice of cross-appeal. In their brief, the
Baileys limit their cross-appeal to three issues: the grant of summary
judgment to the police officers and the City of Hickory on the proce-
dural due process claim; the denial of summary judgment on the state
law claim of false imprisonment associated with the May 27 incident;
and the grant of summary judgment to the police officers and the City
of Hickory on the state law malicious prosecution claim associated
with the September 3 incident. As noted above, we do not have juris-
10 BAILEY v. KENNEDY
diction over this interlocutory cross-appeal. Swint v. Chambers
County Comm., 514 U.S. 35 (1995).

III.

We have jurisdiction to review final orders of district courts under
28 U.S.C.A. § 1291 (West 1993). The police officers appeal the dis-
trict court’s denial of qualified immunity on the federal law claims.
To the extent that an order of a district court rejecting a government
official’s qualified immunity defense turns on a question of law, it is
a final decision within the meaning of § 1291 under the collateral
order doctrine recgonized in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949), and is therefore subject to immediate
appeal. See Johnson v. Jones, 515 U.S. 304, 313 (1995) (holding that
although interlocutory appeal is allowed from the denial of qualified
immunity, questions of evidentiary sufficiency are not collaterally
appealable). Accordingly, "we possess jurisdiction to consider an
appeal from a decision of a district court rejecting a government offi-
cial’s claim of entitlement to qualified immunity to the extent that the
official maintains that the official’s conduct did not violate clearly
established law." Winfield v. Bass, 106 F.3d 525, 529 (4th Cir. 1997)
(en banc). On the other hand, "to the extent that the appealing official
seeks to argue the insufficiency of the evidence to raise a genuine
issue of material fact—for example, that the evidence presented was
insufficient to support a conclusion that the official engaged in the
particular conduct alleged—we do not possess jurisdiction under
§ 1291 to consider the claim." Id. at 529-30.

Where, as here, the district court articulates the facts as it viewed
them in determining that summary judgment was inappropriate, our
task is relatively straightforward. We "must accept those facts and
then determine whether, based on those facts, a reasonable person in
the defendant’s position could have believed that he or she was acting
in conformity with the clearly established law at the time." Gray-
Hopkins v. Prince George’s County, Md., 309 F.3d 224, 229 (4th Cir.
2002); accord Bass, 106 F.3d at 530 (holding that in reviewing the
denial of qualified immunity we "accept[ ] the facts as the district
court viewed them").

The police officers also appeal the denial of public officers’ immu-
nity on the state law claims. In determining whether we have jurisdic-
 BAILEY v. KENNEDY 11
tion over the questions of law in this interlocutory appeal, "we must
apply the collateral order doctrine with due regard to the nature and
scope of the immunity." Gray-Hopkins, 309 F.3d at 231. We have
jurisdiction over the denial of public officers’ immunity if "under
state law, the immunity is an immunity from suit, but we lack such
jurisdiction if it is an immunity from liability only." Id. Because,
under North Carolina law, public officers’ immunity is an immunity
from suit, Summey v. Barker, 544 S.E.2d 262, 264 (N.C. App. 2001),
we have jurisdiction over the police officers’ appeal of the district
court’s denial of public officers’ immunity to the state law claims. We
again accept the facts as the district court viewed them.

"We review de novo the district court’s denial of qualified immu-
nity, employing our full knowledge of our own and other relevant pre-
cedents." Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003). "The
burden of proof and persuasion with respect to a claim of qualified
immunity is on the defendant official." Id. We also review the denial
of public officers’ immunity de novo. See Gray-Hopkins, 309 F.3d at
233-34 (reviewing denial of public official immunity de novo).

IV.

Determining whether a state officer is entitled to qualified immu-
nity is a two-step inquiry. First, we must decide "whether a constitu-
tional right would have been violated on the facts alleged." Saucier
v. Katz, 533 U.S. 194, 200 (2001). "Next, assuming that the violation
of the right is established, courts must consider whether the right was
clearly established at the time such that it would be clear to an objec-
tively reasonable officer that his conduct violated that right." Brown
v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).

A.

Considering first Michael Bailey’s Fourth Amendment unlawful
seizure claim, our initial task is to assess whether the facts alleged,
taken in the light most favorable to Michael Bailey, indicate that Offi-
cers Kennedy and Whitley had probable cause to seize Michael for an
emergency mental evaluation. See S.P. v. City of Takoma Park, 134
F.3d 260, 266 (4th Cir. 1998) (holding that police officers "must have
probable cause to believe that the individual posed a danger to
12 BAILEY v. KENNEDY
[him]self or others before involuntarily detaining the individual"). If
probable cause was lacking, then Michael has successfully asserted
the violation of a constitutional right — specifically his Fourth
Amendment right against unreasonable seizure — and we may move
on to the second prong of our qualified immunity analysis.

Probable cause is a "practical, nontechnical conception" that
addresses the "the factual and practical considerations of everyday life
on which reasonable and prudent men, not legal technicians, act." Illi-
nois v. Gates, 462 U.S. 213, 231 (1993) (quotation marks omitted).
It is a "fluid concept" that cannot be "reduced to a neat set of legal
rules." Id. at 232. We have previously held that in the case of the law
governing seizures for psychological evaluations, there is a "lack of
clarity" as far as what constitutes probable cause. Gooden v. Howard
County, 954 F.2d 960, 968 (4th Cir. 1992). Based on Michael’s ver-
sion of the events giving rise to this case, as accepted by the district
court, when Officer Whitley responded to the 911 dispatch, he found
Michael intoxicated and sitting at the dining room table eating lunch.
Michael denied any thoughts of suicide, and there were no weapons
or any other preparations for a suicide attempt evident. When Officer
Whitley asked for permission to search the house, Michael told the
officer to contact Michael’s father, Billy Bailey, the owner of the
house, for permission to search. Apparently satisfied, Officer Whitley
left the house within five minutes of his arrival. Officer Kennedy
arrived as Officer Whitley was leaving the house. Officer Whitley
said, at most, "we’re going to have to do something." (J.A. at 77.)
Michael, who was then on the telephone, opened the door when Offi-
cer Kennedy knocked, and again denied any thoughts of suicide, call-
ing the suicide report "crazy." (J.A. at 77.) He told the officers that
they needed to leave and that he was going to call his lawyer. Michael
attempted to close the door and turned toward a cabinet where the
telephone base was located. At this point, Officer Kennedy placed his
foot in the doorway to prevent the door from closing and grabbed
Michael’s arm.

The police officers argue that they had probable cause to seize
Michael for an emergency mental evaluation based on the neighbor’s
911 report. According to the officers, the 911 report asserted that
Michael was at home, intoxicated, and suicidal. The police officers
argue that once they confirmed two of these three assertions, namely
 BAILEY v. KENNEDY 13
that Michael was at home and intoxicated, they then had probable
cause to believe that Michael was a danger to himself. Michael, how-
ever, denied any thoughts of suicide, calling the report crazy. When
Officer Whitley arrived, Michael was sitting at the dining room table
eating lunch. More telling, after talking to Michael for approximately
five minutes, Officer Whitley exited the house. Officer Kennedy,
knowing only that Officer Whitley had exited the house and that Offi-
cer Whitley said "we’re going to have to do something," grabbed
Michael almost as soon as he opened the door.

Without more, the 911 report cannot bear the weight that the offi-
cers would place on it. The law does not permit "random or baseless
detention of citizens for psychological evaluations." Gooden, 954
F.2d at 968. The facts of this case are distinguishable from Gooden,
where the police officers responded on two separate dates to citizen
reports of screaming in an apartment building. On the second visit,
the police officers heard the screaming themselves and believed that
Ms. Gooden’s apartment was the source of the scream. When ques-
tioned, Ms. Gooden admitted that she had "yelped," ostensibly due to
burning herself on a hot iron. Id. at 962. After leaving Ms. Gooden’s
apartment, the police officers again heard noises coming from the
apartment, including loud thuds and screaming. After again talking to
Ms. Gooden, searching her apartment, and conferring with each other,
the officers decided to detain Ms. Gooden for an emergency mental
evaluation. Id. at 963-64.

This case is also distinguishable from S.P. v. City of Takoma Park.
In S.P., the police responded to a husband’s report that his wife was
possibly suicidal. When the officers arrived at S.P.’s home, they
found her alone, "obviously distraught and crying." S.P., 134 F.3d at
267. She "admitted that she had had a ‘painful’ argument with her
husband and that if not for her children, she would have considered
committing suicide." Id. After observing and interviewing S.P., the
police officers made "a deliberate decision" to detain her for an emer-
gency mental evaluation. Id.; see also In re Woodie, 448 S.E.2d 142
(N.C. App. 1994) (holding that involuntary commitment was proper
where person had attempted suicide, and when doctor advised him
that he needed to be hospitalized, he abruptly walked out of the doc-
tor’s office and said he was going to kill himself).
14 BAILEY v. KENNEDY
In this case, the police officers had no evidence to support the
assertion in the 911 report that Michael was suicidal. Michael was not
visibly distraught or crying. Instead, he was eating lunch. There were
no weapons or other suicide preparations evident, and Michael denied
the suicide reports, told the officers they needed to leave, and said he
was going to call his lawyer. Moreover, after talking with Michael for
approximately five minutes, Whitley voluntarily left the house. Of
course, citizen complaints are entitled to some credence, and officers
need not wait "until they [see] blood, bruises and splintered furni-
ture." Gooden, 954 F.2d at 967 (citation and quotation marks omit-
ted). Nonetheless, accepting the facts as the district court viewed
them, the 911 report, viewed together with the events after the police
officers arrived, was insufficient to establish probable cause to detain
Michael for an emergency mental evaluation.

We now must determine whether the right alleged to have been
violated was a "clearly established . . . right[ ] of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). A right is "clearly established" if "‘the contours of the right
[are] sufficiently clear’" so that a reasonable officer would have
understood, under the circumstances at hand, that his behavior vio-
lated the right. Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting
Anderson v. Creigton, 483 U.S. 635, 640 (1987)). The inquiry is an
objective one, dependent not on the subjective beliefs of the particular
officer at the scene, but instead on what an objectively reasonable
officer would have understood in those circumstances. Milstead v.
Kibler, 243 F.3d 157, 161 (4th Cir.), cert. denied, 534 U.S. 888
(2001).

In deciding whether the right alleged to have been violated was
clearly established, we must define the right "at a high level of partic-
ularity." Edwards v. City of Goldsboro, 178 F.3d 231, 250-51 (4th
Cir. 1999). We have recognized that "the general right to be free from
seizure unless probable cause exists [is] clearly established in the
mental health seizure context." Gooden, 954 F.2d at 968. We have
also recognized that "an officer must have probable cause to believe
that the individual posed a danger to [him]self or others before invol-
untarily detaining the individual." S.P., 134 F.3d at 266. The test of
whether a right is clearly established, however, cannot be applied at
this level of generality. Id. Defining the right at issue with the requi-
 BAILEY v. KENNEDY 15
site level of particularity, the appropriate question is whether, at the
time of Kennedy and Whitley’s actions on May 27, 1998, it was
clearly established that a police officer may not detain someone for
an emergency mental evaluation based only on a 911 report that the
person was suicidal, where the officers were able to observe the per-
son alleged to be suicidal and observed nothing indicating that the
person might have been a danger to himself.

We conclude that it was clearly established that probable cause was
lacking in such a situation. Although we have noted that what consti-
tutes "dangerousness" in the mental health seizure context is not pre-
cisely defined, see Gooden, 954 F.2d at 968, this lack of clarity does
not automatically immunize police officers from liability for every
seizure made for purposes of a mental evaluation. As we noted above,
"the law in no way permits random or baseless detention of citizens
for psychological evaluations." Id. Accepting the facts as the district
court viewed them, the police officers observed nothing that would
indicate to them that Michael might be a danger to himself. Certainly,
no reasonable officer, upon seeing Officer Whitley voluntarily leave
the house, would have thought that Michael was in such imminent
danger of harming himself that immediate seizure was required, with-
out any additional investigation, deliberation or consultation with
Whitley, who had just been inside the house. Moreover, even assum-
ing that Whitley did say "we’re going to have to do something," (J.A.
at 77), to Kennedy as he arrived, there is nothing in the record to sug-
gest that this brief, non-specific comment would have made a reason-
able officer believe that immediate seizure was necessary. The
contours of probable cause were sufficiently clear that the unlawful-
ness of seizing someone in such a situation would have been apparent
to reasonable officers. Accordingly, we affirm the district court’s
denial of qualified immunity on Michael Bailey’s Fourth Amendment
unlawful seizure claim.

Several of the Baileys’ other claims are intertwined with Michael’s
Fourth Amendment unlawful seizure claim. Because, given the facts
as the district court viewed them, there was no probable cause to seize
Michael for an emergency mental evaluation, the police officers also
committed both false arrest and false imprisonment under state law.
See Glenn-Robinson v. Acker, 538 S.E.2d 601, 614 (N.C. App. 2000)
(holding that where police officers did not have probable cause, they
16 BAILEY v. KENNEDY
committed a false arrest); Emory v. Pendergraph, 571 S.E.2d 845,
848 (N.C. App. 2002) (holding that false imprisonment means the
illegal restraint of someone against his will).

The police officers argue that they are entitled to public officers’
immunity as to these state law claims. Under North Carolina law,
public officials engaged in discretionary, governmental duties enjoy
absolute immunity from personal liability so long as they keep within
the scope of their official authority and act without malice or corrup-
tion. Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984). The police
officers concede, and we agree, that public officers’ immunity, at the
least,6 is unavailable to officers who violate clearly established rights
because an officer acts with malice when he "does that which a man
of reasonable intelligence would know to be contrary to his duty."7 Id.
Accepting the facts as the district court viewed them, a man of rea-
sonable intelligence would have known that seizing Michael for an
emergency mental evaluation was contrary to his duty. Accordingly,
the Baileys have forecast sufficient evidence of malice to foreclose
the availability of public officers’ immunity on the false arrest and
false imprisonment claims.

Next, we consider Jane and Billy Bailey’s federal and state consti-
6
The Baileys argue that public officers’ immunity is not available if the
officer’s actions exceed the scope of his authority. They argue that
because an arrest without probable cause exceeds the scope of an offi-
cer’s lawful authority, an officer is not entitled to public officers’ immu-
nity for any seizure made without probable cause. We need not
determine whether North Carolina’s public officers’ immunity indeed
offers such thin protection. Because we find that the acts at issue violated
rights that were clearly established, an officer of reasonable intelligence
would have known that the officers’ actions were contrary to their duty.
This is all that is required to support a finding of malice under state law,
see Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984), and it is clear that
there is no public officers’ immunity where the officers act with malice.
7
A finding of malice also requires that the officer "intend[ ] [his act]
to be . . . injurious to another." Grad, 321 S.E.2d at 890. Because the
police officers argue only that a man of reasonable intelligence would
not have known that their actions were contrary to their duty, we confine
our discussion to the first prong of the malice definition.
 BAILEY v. KENNEDY 17
8
tutional claims based on an allegedly unlawful search of their home,
as well as their state common law claim of trespass by a public offi-
cer. The police officers argue that exigent circumstances made their
warrantless entry into the Bailey residence objectively reasonable.
Mincey v. Arizona, 437 U.S. 385, 394 (1978). Because, as discussed
above, the officers had no reason to believe that Michael was a danger
to himself, no exigent circumstances justified their warrantless entry
into the Baileys’ home. Also, as discussed above, accepting the facts
as the district court viewed them, it was clearly established that no
exigent circumstances requiring immediate action to protect human
life existed to justify the search. Moreover, a man of reasonable intel-
ligence would not have believed that exigent circumstances existed in
this situation. See Grad, 321 S.E.2d at 890 (holding that public offi-
cers’ immunity is not warranted when official does that which a man
of reasonable intelligence would know was contrary to his duty).
Accordingly, we affirm the district court’s denial of qualified immu-
nity and public officers’ immunity on these claims as well.

B.

The last three claims associated with the May 27 event are the fed-
eral excessive force claim and the two related state law claims: assault
and battery and gross negligence. Respecting the federal constitu-
tional claim, as discussed above, qualified immunity is a two-step
inquiry, so we turn first to whether, accepting the district court’s view
of the facts, there was a constitutional violation. "The Fourth Amend-
ment prohibition on unreasonable seizures bars police officers from
using excessive force to seize a free citizen." Jones v. Buchanan, 325
F.3d 520, 527 (4th Cir. 2003). We determine whether an officer has
used excessive force to effect a seizure based on a standard of "‘ob-
8
We note that the police officers have not argued that the Baileys do
not have a direct action for monetary damages for the abridgment of their
state constitutional rights. Accordingly, we do not address whether the
Baileys’ claim of trespass by a public officer constituted an adequate
remedy at law. See Corum v. University of North Carolina, 413 S.E.2d
276, 293 (N.C. 1992) (holding that an individual whose state constitu-
tional rights have been abridged has a direct action for monetary dam-
ages against a state official in his official capacity, if there is no adequate
remedy provided by state law).
18 BAILEY v. KENNEDY
jective reasonableness.’" Id. (quoting Graham v. Connor, 490 U.S.
386, 399 (1989)). "We weigh the nature and quality of the intrusion
on the individual’s Fourth Amendment interests against the counter-
vailing governmental interests at stake. This test requires us to deter-
mine the reasonableness of an officer’s actions and is not capable of
precise definition or mechanical application. Instead it requires care-
ful attention to the facts and circumstances of each particular case."
Id. (quotation marks omitted). Those facts and circumstances include
"the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether
[the suspect] is actively resisting arrest or attempting to evade arrest
by flight." Graham v. Connor, 490 U.S. 386, 396 (1989). "The extent
of the plaintiff’s injury is also a relevant consideration." Jones, 325
F.3d at 527.

We consider the Graham factors in turn. Starting with the first fac-
tor, the severity of the crime at issue, Michael committed no crime.
In fact, as discussed above, the police officers did not even have prob-
able cause to seize Michael. When we considered this factor in Jones,
we noted that "[i]n recent years, we have twice confronted situations
in which a plaintiff, subjected to police force, had committed no
crime; in each, we held that the plaintiff had stated a claim for viola-
tion of his constitutional right to be free from excessive police force."
Jones, 325 F.3d at 528 (citing Clem v. Corbeau, 284 F.3d 543, 545-
47 (4th Cir. 2002); Park v. Shiflett, 250 F.3d 843, 848, 853 (4th Cir.
2001)). Moreover, Jones itself was a case in which the plaintiff had
committed no crime, and we held that because "Jones committed no
crime, this first factor clearly weighs in his favor." Id. Similarly,
because it was unquestionable that Michael had not committed any
crime, this factor weighs heavily in Michael’s favor.

The second factor, whether a reasonable officer could have per-
ceived Michael to be an immediate threat to the safety of the officers
or others, also weighs in favor of Michael. As discussed above, there
was no reason to believe that Michael was a danger to himself or oth-
ers, including the officers. No reasonable person viewing Officer
Whitley voluntarily leaving the house could have concluded that
Michael was an immediate threat to himself or to the officers. At the
time that Officer Kennedy used force to seize him, Michael was
attempting to shut the door to his parents’ home. Moreover, it is
 BAILEY v. KENNEDY 19
undisputed that Michael was unarmed. Thus, the threat to the safety
of the officers or others was minimal, if it existed at all.

Turning to the third factor, it is clear that after Kennedy started to
use force to seize him, Michael resisted arrest. Whitley then joined
Kennedy and both administered repeated hand-blows and kicks while
trying to handcuff Michael. The officers continued to use force after
Michael’s hands were bound behind his back,9 his feet were bound,
and he was lying face down on the floor. (J.A. at 99 ("[I]n the light
most favorable to the Plaintiffs, after backup arrived and Michael’s
hands and feet were secured, and while he was still lying face down,
Defendant Kennedy pulled him up by his arms, causing further injury
to his shoulders, and Defendant Whitley kicked Michael in the
back.").) Accepting the facts as the district court viewed them,
Michael was not resisting arrest when he was bound hand and foot
and lying face down on the floor. Accordingly, even this factor does
not weigh completely against Michael.

Considering these three factors together, we conclude that the
amount of force used was excessive. Assuming arguendo that some
degree of force was justifiable, the extensive blows and kicks used
against an unarmed man were unreasonable, especially the use of
force that continued after Michael was bound hand and foot and lying
face down on the floor. We note in this respect that the level of force
used caused severe injuries. Michael’s injuries included cuts that left
a two-foot diameter pool of blood on the foyer floor and later required
him to have stitches. He was also bruised and incurred shoulder inju-
ries that required repeated surgeries to repair. (J.A. at 80, 99.)

Having determined that Michael has proffered evidence of a viola-
tion of a constitutional right, we now consider whether Officers Ken-
nedy and Whitley are nonetheless entitled to qualified immunity. As
we held in Jones v. Buchanan:
9
Kennedy and Whitley initially handcuffed Michael with his hands in
front of his body. After back-up arrived, flex-cuffs were placed on
Michael’s ankles and wrists — "this time with his hands behind his
back." (J.A. at 79.)
20 BAILEY v. KENNEDY
Even though the facts of a prior case may not be "identical,"
the reasoning of that case may establish a "premise" regard-
ing an unreasonable use of force that can give an officer fair
notice that his conduct is objectively unreasonable.

Ten years before Deputy Keller’s November 1999 use of
force against Jones, the Supreme Court in Graham v. Con-
nor had clearly established that all claims of excessive force
in the course of any seizure of a free person must be ana-
lyzed under an "objective reasonableness" standard, taking
into account the factors discussed above. Graham, 490 U.S.
at 395-96, 109 S.Ct. 1865. Both before and after November
1999, courts have consistently applied the Graham holding
and have consistently held that officers using unnecessary,
gratuitous, and disproportionate force to seize a secured,
unarmed citizen, do not act in an objectively reasonable
manner and, thus, are not entitled to qualified immunity.

Jones, 325 F.3d at 531-32 (citation omitted). There, we held that the
officer was not entitled to qualified immunity because the officer
attacked Jones "even though Jones, although drunk and using foul
language, was unarmed, handcuffed, and alone in a secured room in
the sheriff’s headquarters." Id. In Jones, we cited several cases
decided prior to May 1998, in which police officers were denied qual-
ified immunity where the officer’s use of force might seem to be more
justified than the use of force in this case. See Rowland v. Perry, 41
F.3d 167 (4th Cir. 1994) (denying qualified immunity on excessive
force claim where police officer attacked person suspected of taking
a $5 bill from the floor that did not belong to him even though Row-
land may have resisted after he was attacked); Kane v. Hargis, 987
F.2d 1005, 1006-07 (4th Cir. 1993) (denying qualified immunity on
excessive force claim where taking the facts in the light most favor-
able to Kane, she resisted arrest for driving under the influence and
the police officer, after he had secured her, "repeatedly push[ed] her
face into the pavement, cracking three of her teeth, cutting her nose,
and bruising her face"); see also Mayard v. Hopwood, 105 F.3d 1226,
1227-28 (8th Cir. 1997) (denying qualified immunity to an officer
who slapped and punched a suspect, in handcuffs and leg restraints,
even though the suspect had, prior to being completely restrained,
kicked and hit an officer, physically resisted arrest, and shouted and
 BAILEY v. KENNEDY 21
screamed at officers). "Thus, years before [1998], it was clearly estab-
lished that a police officer was not entitled to use unnecessary, gratu-
itous, and disproportionate force against a handcuffed, secured
citizen, who posed no threat to the officer or others and had neither
committed, nor was suspected of committing, any crime." Jones, 325
F.3d at 534. Here, Michael was unarmed, and the use of force contin-
ued even after he was secured with flex-cuffs around both his hands
and his feet, and lying face down on the floor, alone in a room of his
parents’ house. Kennedy lifted Michael up by his arms while they
were bound behind his back, thereby wrenching his shoulder, and
Whitley kicked Michael in the back when he cried out in pain. Thus,
Kennedy and Whitley violated clearly established law in using force
to seize Michael when he had committed no crime and when they had
no reason to believe he was a danger to himself or others. It was espe-
cially clear that they were not entitled to use force after Michael was
secured face down on the floor in handcuffs and leg restraints.
Accordingly, we affirm the denial of qualified immunity on the
§ 1983 excessive force claim.

For the same reasons that we affirm the denial of qualified immu-
nity on the § 1983 excessive force claim, we affirm the denial of pub-
lic officers’ immunity on the state common law assault and battery
claim. Glenn-Robinson, 538 S.E.2d at 615 (holding that a citizen can
sue a law enforcement officer for assault and battery if "the officer
used force against plaintiff which was excessive under the given cir-
cumstances" (quotation marks omitted)); Grad, 321 S.E.2d at 894.
With regard to the gross negligence claim, the police officers make
no argument on appeal. Therefore, we consider them to have aban-
doned this issue on appeal. See Edwards, 178 F.3d at 241 n.6.

C.

The only claim appealed by the police officers related to the Sep-
tember 3 event is the state law false arrest claim. Officer Kennedy
argues that the arrest of Michael Bailey on September 3 was in accor-
dance with state law. The district court held that the arrest violated
state law because Kennedy was not an eyewitness to Michael’s mis-
demeanor offenses. N.C. Gen. Stat. § 15A-401(b)(2) provides, in rele-
vant part:
22 BAILEY v. KENNEDY
(b) Arrest by Officer Without a Warrant. —

(1) Offense in Presence of Officer. — An officer may
arrest without a warrant any person who the officer has
probable cause to believe has committed a criminal offense
in the officer’s presence.

(2) Offense Out of Presence of Officer. — An officer may
arrest without a warrant any person who the officer has
probable cause to believe:

a. Has committed a felony; or

b. Has committed a misdemeanor, and:

1. Will not be apprehended unless immedi-
ately arrested, or

2. May cause physical injury to himself or oth-
ers, or damage to property unless immediately
arrested . . . .

N.C. Gen. Stat. § 15A-401(b) (2001). Kennedy admits that Michael’s
offenses were misdemeanors and were committed outside of Kenne-
dy’s presence. Kennedy argues that the arrest was nonetheless lawful
because N.C. Gen. Stat. § 15A-401(b)(2)(b)(2) allows an officer to
arrest people who commit misdemeanors outside of his presence if
that person may cause physical injury to himself or others unless
immediately arrested. Kennedy argues that he had probable cause to
believe that Michael might cause physical injury to himself or others
because of his knowledge of the events of May 27. We held above,
however, that Kennedy did not have probable cause on May 27 to
believe that Michael was a danger to himself or others. Given that the
events of May 27 were insufficient to give the officers probable cause
to seize Michael on that date, they are a fortiori insufficient to consti-
tute probable cause to believe that Michael was a danger to himself
or others three months later. Moreover, an officer of reasonable intel-
ligence would have known that arresting Michael in such a situation
was contrary to his duty. Accordingly, Kennedy is not entitled to pub-
lic officers’ immunity on the state law false arrest claim.
 BAILEY v. KENNEDY 23
V.

For the foregoing reasons, we affirm the district court’s denial of
qualified immunity and public officers’ immunity to the police offi-
cers. We grant the motion to dismiss the cross-appeal.

AFFIRMED AND REMANDED FOR
FURTHER PROCEEDINGS