UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2016
PEGGY RUSS; TAFFY GAUSE,
Plaintiffs - Appellees,
v.
SID CAUSEY; ED MCMAHON; LACHLAN MACNEISH; DOUG PRICE; ERIC
BROWN; VERNON JORDAN; OHIO CASUALTY INSURANCE COMPANY;
BRANDON MATT JORDAN,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:09-cv-00017-FL)
Argued: October 26, 2011 Decided: February 24, 2012
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
majority opinion, in which Judge Wynn joined. Judge King wrote
a dissenting opinion.
ARGUED: James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC, Winston-Salem, North Carolina, for Appellants. Matthew
William Buckmiller, SHIPMAN & WRIGHT, LLP, Wilmington, North
Carolina, for Appellees. ON BRIEF: Bradley O. Wood, Julie B.
Bradburn, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem,
North Carolina, for Appellants. Gary K. Shipman, SHIPMAN &
WRIGHT, LLP, Wilmington, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
In this case, Plaintiffs-Appellees Peggy Russ and Taffy
Gause asserted a number of claims for relief against the former
sheriff of New Hanover County, Sid Causey, and a number of his
deputies in both their individual and official capacities.
Their claims are premised on the defendants’ conduct during the
arrest of their son and brother, respectively, Gladwyn Taft
Russ, III (“GT Russ III”) 1 at the funeral of their husband and
father, Gladwyn Taft Russ Jr. (“GT Russ Jr.”). Specifically,
Russ and Gause alleged (1) deprivation of their Fourth Amendment
right to privacy in violation of 42 U.S.C. § 1983, (2) assault;
(3) intentional infliction of emotional distress, (4) negligent
infliction of emotional distress, (5) invasion of privacy, and
(6) negligence. The defendants asserted various defenses,
including governmental immunity and public officer’s immunity,
and moved for summary judgment. On August 5, 2010, the district
court granted in part and denied in part the defendants’ motion
for summary judgment.
At issue on appeal is the district court’s denial of
defendants Eric Brown, B. Matt Jordan, and Doug Price’s motion
for summary judgment as to the Plaintiffs-Appellees’ state law
1
GT Russ III is not a party to this action.
3
claims for intentional infliction of emotional distress,
negligent infliction of emotional distress, and negligence. In
addition to allowing these claims to proceed against the
defendants in their official capacities, 2 the district court
allowed these claims to proceed against defendants Brown,
Jordan, and Price in their individual capacities, denying
defendants’ affirmative defense of public officer’s immunity.
Defendants argue that the district court erred in concluding
that Brown, Jordan, and Price were not entitled to public
officer’s immunity as a matter of law because Plaintiffs-
Appellees failed to produce evidence that the deputies’ actions
were corrupt, malicious, or outside the scope of their official
duties. We disagree. Because Plaintiffs-Appellees have put
forth facts sufficient to create a genuine issue of material
fact as to whether the officers acted with malice, an exception
2
As to the claims against the defendants in their official
capacities -- which are in fact claims against the New Hanover
County Sheriff’s Office –- the district court determined that
the defendants were entitled to governmental immunity for
damages in excess of $25,000 but that the Plaintiffs-Appellees
could recover against the defendants in their official
capacities for intentional infliction of emotional distress,
negligent infliction of emotional distress, and negligence up to
$25,000. Because there is no proper basis for an interlocutory
appeal of the claims against the defendants in their official
capacities, we decline to exercise pendant appellate
jurisdiction over the denial of summary judgment as to these
claims.
4
to public officer’s immunity, we affirm the denial of summary
judgment. 3
I.
We begin our analysis with a reconstruction of the events
that transpired and gave rise to these claims. We then examine
the malice exception to public officer’s immunity as applied to
Plaintiffs-Appellees’ claims.
A.
On August 6, 2008, Glenda Sellars swore out a
communicating-threats complaint against her husband, GT Russ
III. A magistrate judge then issued a warrant for his arrest.
Between August 8, 2008, and November 8, 2008, New Hanover County
sheriff’s deputies attempted to serve the warrant on GT Russ III
at his mobile home located directly behind his parents’ home.
On each of these occasions, the deputies were unable to locate
3
Thus, although the existence or absence of public
officer’s immunity may be established, where appropriate, as a
matter of law, it is also true that in other cases this issue
presents a question of fact to be resolved by the jury. See,
e.g., Showalter v. North Carolina Dept. of Crime Control and
Public Safety, 183 N.C. App. 132, 137, 643 S.E.2d 649, 652
(2007) (affirming denial of summary judgment because of open
genuine issues of material fact in relation to officer’s alleged
malice precluded judgment as a matter of law on the basis of
public officer’s immunity).
5
GT Russ III or otherwise serve the warrant. Russ, the mother of
GT Russ III, personally saw sheriff’s deputies attempt to serve
the warrant three times and informed the deputies that GT Russ
III and Sellars had reconciled and were in Tennessee and that
Sellars wanted to withdraw her complaint and drop the charges
against GT Russ III.
On November 1, 2008, GT Russ III returned to North Carolina
to be with his father, GT Russ Jr., whose health was
deteriorating rapidly. Upon his return, GT Russ III did not
attempt to surrender or turn himself in, nor did Russ inform
anyone from the sheriff’s office that GT Russ III was back in
town. Plaintiffs-Appellees and GT Russ III appeared to believe
-– incorrectly -- that the criminal complaint had been
withdrawn, and they were otherwise preoccupied with the failing
health of GT Russ Jr.
On November 8, 2008, the sheriff’s office responded to a
9-1-1 call from GT Russ III’s son, who stated that his father
had slashed the tires and smashed the windows of his car and
locked himself inside the house of Russ. Deputy Gonzalez, who
had previously attempted to serve the arrest warrant on GT Russ
III on a number of occasions, was the first to arrive on the
scene. He verified the property damage and hoped to be able to
serve the arrest warrant on GT Russ III. GT Russ III’s son
advised Deputy Gonzalez that GT Russ III was alone in the house
6
and that he had access to firearms. Deputy Gonzalez radioed for
backup.
After backup arrived, Deputy Gonzalez knocked on the door
of the house and demanded that GT Russ III surrender to him, but
GT Russ III refused to do so. Plaintiffs-Appellees arrived on
the scene but were directed to stay away from the house. Russ
gave the deputies the keys to her house so that they could enter
and arrest GT Russ III. Chief Deputy Sheriff Ed McMahon, who
was second in command at the time (now Sheriff of New Hanover
County), came to the house and spoke with GT Russ III over the
telephone. GT Russ III informed McMahon that he had returned to
North Carolina to be with his father during surgery to be
performed on November 10, 2008. McMahon verified this with the
Plaintiffs-Appellees and other family members, who also informed
him that Sellars was not in North Carolina at the time. After
speaking with GT Russ III and Plaintiffs-Appellees, McMahon
agreed to allow GT Russ III to turn himself in following his
father’s surgery. The deputies left the scene and Russ, Gause,
and GT Russ III went to GT Russ Jr.’s bedside at the hospital.
GT Russ III did not turn himself in on November 10, 2008.
On that day, GT Russ Jr.’s condition worsened and on November
11, 2008, he died. Deputy Gonzalez arrived at Russ’s house on
November 11, 2008, seeking to serve the warrant on GT Russ III.
During his visit, Russ notified the deputy that her husband had
7
died and asked the deputy to notify Chief Deputy McMahon of that
fact. On Wednesday, November 12, or Thursday, November 13,
2008, Russ and GT Russ III spoke with McMahon. During those
conversations both notified him that GT Russ Jr. had died and
that the family was busy making funeral arrangements for GT Russ
Jr., who was to be buried with military honors. McMahon agreed
to allow GT Russ III to turn himself in after his father’s
funeral. McMahon recounted his conversation with Russ where he
admits agreeing to have GT Russ III turn himself in after the
funeral:
Q: Do you remember saying, “Okay, that is fine”? What
did you say in response to that?
A: I am sure I said, “Okay.”
Consistent with that discussion, no efforts were made by the
sheriff’s office to serve the warrant or to contact GT Russ III
about the warrant. Further, sheriff’s deputies were
specifically instructed not to go back to the house.
However, on November 13, 2008, McMahon and other senior law
enforcement officers in the sheriff’s office, worried that GT
Russ III would not turn himself in, decided that their best
chance to serve the arrest warrant would be to do so after the
funeral service, which they were confident GT Russ III would
attend. McMahon, after speaking with Causey, authorized the
arrest of GT Russ III at some point after the funeral, to be
8
carried out as discretely and quickly as possible, but left the
details of the arrest plan to Price. Price created the Incident
Action Plan that details the arrest plan. Deputies Brown and
Jordan were to wear plain clothes as they approached GT Russ III
and arrest him in the parking lot of Andrews Valley Mortuary
immediately following his father’s funeral service. Price
relayed this plan to McMahon.
The funeral of GT Russ Jr. was set for November 15, 2008,
and it was intended to be a private ceremony. Plaintiffs-
Appellees and GT Russ III went to the mortuary early in the
morning together to ensure everything was being set up
appropriately for the service. GT Russ III drove his truck to
the funeral service at Andrews Valley Mortuary. The service
began at 1:00 or 2:00 p.m. with family members and friends
paying their respects to GT Russ Jr. and the Russ family.
Prior to the funeral service, Brown and Jordan, who were
wearing civilian suits and ties, drove to an adjacent animal
hospital to observe the funeral home and then parked their
unmarked car in an empty parking space in the funeral home’s
parking lot once all of the funeral attendees had gone inside.
No one from the sheriff’s office had notified Andrews Valley
Mortuary that they would attempt to serve a warrant at the
funeral service.
9
After the service concluded, Plaintiffs-Appellees exited
the funeral home through the front entrance and went into the
limousine. The parties differ as to exactly what happened after
GT Russ III exited the funeral home at the conclusion of the
service, although their versions of events do overlap.
Accepting Plaintiffs-Appellees’ version as true where there are
differences, the arrest occurred as follows: GT Russ III was
the pallbearer for his father’s casket and the casket went out
the side door of the mortuary where the hearse was parked under
the carport. Ronald Simmons was also a pallbearer on the left
side with GT Russ III and John Hoy from Andrews Valley Mortuary
was assisting the pallbearers in the transportation of the
casket. As GT Russ III was putting his father’s casket into the
hearse, two gentlemen in suits and ties approached. Price had
given permission for Deputies Brown and Jordan to approach the
funeral at this time. Ronald Simmons was an arm’s length away
from GT Russ III and initially thought that the men were friends
or family that had attended the funeral.
Brown then violently grabbed GT Russ III and threw him up
against the hearse. Deputy Brown never identified himself as
law enforcement nor did he inform GT Russ III that he was under
arrest. GT Russ III broke loose from Brown, not knowing who he
was, and Hoy and Simmons thought they were criminals attacking
GT Russ III.
10
As Plaintiffs-Appellees were seated in the limo they heard
a loud noise from GT Russ III being thrown against the hearse
and a lot of screaming. They went over to the commotion
surrounding the hearse. During the scuffle with GT Russ III,
Brown’s back-up firearm had become dislodged and had fallen to
the pavement. In an attempt to control the crowd, defendant
Jordan drew his Taser, which to Plaintiffs-Appellees appeared to
be a firearm. Neither defendant Jordan nor defendant Brown had
identified themselves at this point. When asked by Russ and
Gause who they were and what they were doing, the deputies
refused to identify themselves and threatened to shoot
bystanders. Plaintiffs-Appellees contend that during this time
the deputies were waving their Tasers wildly at the attendees
and pointing them at Plaintiffs-Appellees faces as they stood a
few feet away. Brown then employed his Taser against GT Russ
III in order to subdue him. Plaintiffs-Appellees allege that
during all this time neither Brown nor Jordan identified
themselves and that they and others at the funeral feared for
their lives.
At some point during the arrest of GT Russ III, Brown and
Jordan radioed for assistance. Price and another deputy, who
had been maintaining positions around the funeral home to
prevent escape, responded and arrived at the scene at about the
time GT Russ III was placed in handcuffs. After seeing GT Russ
11
III handcuffed, attendees understood that these individuals were
law enforcement officers. The attendees wanted answers from
Price as to why this happened, to which he responded that he
would take everyone to jail if they did not calm down. It is
further alleged that Price was rude during this discussion,
further exacerbating the situation. Eventually, Brown and
Jordan transported GT Russ III to New Hanover County Detention
Center.
It took Andrews Valley Mortuary approximately thirty
minutes to restore order to the service and many people in
attendance did not continue to the cemetery for the burial. The
Plaintiffs-Appellees went to the cemetery in shock. The next
day, or shortly thereafter, Russ and her family requested a
meeting with McMahon where McMahon apologized and indicated that
there was a miscommunication and that the arrest was supposed to
have occurred after the burial. The law enforcement officers
involved in the arrest were orally reprimanded by Sheriff
Causey.
The events at the funeral were “the most horrible thing”
Russ has ever gone through and neither she nor Gause have
received closure for their husband and father’s death.
Consistent with Plaintiffs-Appellees’ experience, funeral
attendees were mortified and shocked by what happened.
12
B.
Brown, Jordan, and Price are public officers shielded from
personal liability under North Carolina’s doctrine of public
officer’s immunity unless it is alleged and proved that their
actions, or lack thereof, were of a nature that pierces the
cloak of this immunity. 4 Accordingly, in order to sustain a
personal or individual capacity suit against Brown, Jordan, and
Price for the state law claims, Plaintiffs-Appellees “must
initially make a prima facie showing that the defendant-
official’s tortuous conduct falls within one of the immunity
exceptions.” Trantham v. Lane, 488 S.E.2d 625, 627 (N.C.App.
1997).
As a preliminary matter, defendants assert that Plaintiffs-
Appellees’ claims for negligent infliction of emotional distress
and negligence are, by their very definition, claims for
4
It is well established that federal courts, when
interpreting North Carolina law, “must rule as the North
Carolina courts would, treating decisions of the Supreme Court
of North Carolina as binding . . . .” Iodice v. United States,
289 F.3d 270, 275 (4th Cir. 2002). Consistent with this
deference to state law, holdings by the North Carolina Court of
Appeals on a point of North Carolina law are “not to be
disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would decide
otherwise.” West v. Amer. Tel. & Tel. Co., 311 U.S. 223, 237
(1940); see also Comm’r of Internal Revenue v. Bosch, 387 U.S.
456, 465 (1967); Sanderson v. Rice, 777 F. 2d 902, 905 (4th Cir.
1985), cert. den., 475 U.S. 1027 (1986).
13
negligence and because public officers may not be held
personally liable for negligence, the officers are entitled to
public officer’s immunity as to these claims.
In support of this proposition, defendants’ cite to this
Court’s holding in Shaw v. Stroud that a “negligent infliction
of emotional distress claim, by its very definition, necessarily
alleges only negligence. Therefore, [the defendant state
trooper] [wa]s absolutely immune [individually] from any
negligent infliction of emotional distress claim under North
Carolina law.” Shaw v. Stroud, 13 F.3d 791, 803 (4th Cir. 1994)
(rejecting plaintiff’s claim that gross negligence is sufficient
to pierce public official immunity). In Shaw, however, the
plaintiff was arguing that gross negligence was sufficient to
pierce an officer’s immunity. There were no allegations of
malicious or corrupt actions or actions beyond the scope of the
officer’s duties, exceptions to public officer’s immunity that
this Court in Shaw explicitly acknowledged. Id. (“While
intentional, malicious, or corrupt actions may pierce an
officer’s immunity, the North Carolina Supreme Court has never
allowed a showing of gross negligence to suffice to pierce an
officer’s immunity . . . .”). Further, the North Carolina Court
of Appeals has explicitly held that negligence actions can be
maintained if, in addition to the elements of a negligence
claim, plaintiffs allege and prove that the officer’s actions
14
were corrupt or malicious or beyond the scope of the officer’s
duties:
While we recognize that generally, claims of
negligence can not be maintained against public
officials in their individual capacity, these actions
may be maintained, if plaintiffs bring forth evidence
sufficient to ‘pierce the cloak of official immunity.’
Prior v. Pruett, 550 S.E.2d 166, 171 (N.C.App. 2001) (emphasis
added); see also, Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C.
App. 2000) (quoting Slade v. Vernon, 429 S.E.2d 744, 747 (N.C.
App. 1993)) (“Under the public officers’ immunity doctrine, ‘a
public official is [generally] immune from personal liability
for mere negligence in the performance of his duties, but he is
not shielded from liability if his alleged actions were corrupt
or malicious or if he acted outside and beyond the scope of his
duties’.”). It is not the elements of the claim that determine
whether a public official is entitled to public officer’s
immunity. Rather, it is whether the facts alleged are
sufficient to pierce the cloak of immunity, so as to strip the
official of that immunity and allow plaintiffs to sue the
official “as if the suit had been brought against ‘any private
individual.’” Id.
Under North Carolina law, it is clearly established that
“where a defendant performs discretionary acts as part of his or
her official or governmental duties, to sustain a suit for
personal or individual liability, a plaintiff must allege and
15
prove that the defendant’s acts were malicious or corrupt.”
Schlossberg v. Goins, 540 S.E.2d 49 (N.C.App. 2000) (citing
Wilkins v. Burton, 16 S.E.2d 406, 407 (N.C. 1941)). Here, it is
undisputed that Brown, Jordan, and Price were on duty during the
afternoon of November 15. “Moreover the decisions made by [the
officers] in attempting to restrain and arrest [an individual]
were discretionary decisions made during the course of
performing their official duties as public officers.”
Schlossberg, 540 S.E.2d at 540. Because the deputies were
engaged in discretionary acts as part of their official duties
and Plaintiffs-Appellees do not allege that the deputies’
actions were corrupt, the only relevant question for purposes of
the public officer’s immunity analysis is whether Plaintiffs-
Appellees have put forth sufficient evidence of malice to
survive summary judgment.
The district court found that the plaintiffs “put forward
sufficient evidence of extreme and outrageous conduct and
reckless indifference” to support a showing of malice and
overcome the defense of public officer’s immunity. It is
presumed that a public official in the performance of his
official duties “acts fairly, impartially, and in good faith and
in the exercise of sound judgment or discretion, for the purpose
of promoting the public good and protecting the public
interest.” Greene v. Town of Valdese, 291 S.E.2d 630, 632 (N.C.
16
1982) (citations omitted). “Thus, to overcome the presumption
of good faith in favor of a public official, the burden is on
the plaintiff to offer a sufficient forecast of evidence to
establish . . . the public officials’ actions were malicious.
. . .” Crocker v. Griffin, No. COA09-1000, 2010 WL 1961258 at
*6 (N.C.App. May 18, 2010).
Acts of malice are one exception to the doctrine of public
officer’s immunity, a doctrine where “public officials cannot be
held individually liable for damages caused by mere negligence
in the performance of their governmental or discretionary
duties.” Meyer v. Walls, 489 S.E.2d 880, 889 (N.C. 1997). “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, 321 S.E.2d 888, 890 (N.C. 1984).
The Supreme Court of North Carolina explained that “[a]n act is
wanton when it is done of wicked purpose, or when done
needlessly, manifesting a reckless indifference to the rights of
others.” Id. at 890-91 (quoting Givens v. Sellers, 159 S.E.2d
530, 535 (N.C. 1968)). When the definition of “wanton” is
grafted into the definition of “malice,” Grad establishes a
three pronged framework providing that malice, for the purposes
of piercing the cloak of public officer’s immunity, may be
demonstrated by conduct: (1) “when done needlessly, manifesting
17
a reckless indifference to the rights of others,” 321 S.E.2d at
890-91; (2) “which a [person] of reasonable intelligence would
know to be contrary to [their] duty,” id. at 90 and (3) “which
[is] intend[ed] to be prejudicial or injurious to another.” Id.
Regarding the first prong, we agree with the district court
that Plaintiffs-Appellees put forth sufficient evidence that the
officers needlessly engaged in conduct, manifesting a reckless
indifference to the rights of others. Our conclusion is based
on the Plaintiffs-Appellees’ evidence of the following conduct
of Brown, Jordan, and Price: Brown and Jordan grabbed GT Russ
III during his father’s funeral while GT Russ III was putting
the casket into the hearse; the deputies failed to identify
themselves as police officers; Jordan threatened to use his
Taser on elderly and particularly emotional bystanders attending
the funeral; Price planned the arrest and threatened to arrest
other funeral attendees who sought explanation; and the officers
and their supervisors were brutish and bullying toward grieving
family and friends.
Further, Plaintiffs-Appellees have presented evidence
sufficient to show that the actions of Brown, Jordan, and Price
were actions an officer “of reasonable intelligence would know
to be contrary to his duty.” Grad, 321 S.E.2d at 890. Brown
and Jordan passed a Basic Law Enforcement Training (“BLET”)
course and exam, which provides the “minimum standards” for law
18
enforcement officers in the state of North Carolina. The BLET
course discussed the proper procedure for arresting individuals.
The policies are listed as follows: “(1) Identify Self as an
officer, (2) Inform suspect he or she is ‘under arrest’ and (3)
State reason(s) for the arrest.” This evidence -- when viewed
in the light most favorable to Plaintiffs-Appellees –- makes
clear that defendants failed to follow even one of those basic
rules of law enforcement before effectuating the arrest of GT
Russ III. In addition, N.C. Gen. Stat § 15A-401(c) supports the
BLET tenets for making an arrest:
(2) Upon making an arrest, a law-enforcement officer must:
a. Identify himself as a law-enforcement officer
unless his identity is otherwise apparent
b. Inform the arrested person that he is under
arrest, and
c. As promptly as is reasonable under the
circumstances, inform the arrested person of
the cause of the arrest, unless the cause
appears to be evident.
N.C. Gen. Stat § 15A-401(c).
Contrary to the dissent’s assertion, the relevant “duty” of
the officers —- rather than a duty to refrain from arresting Mr.
Russ at the funeral home, post at 28 —- was the duty not to
engage in extreme and outrageous conduct intended to cause, and
in fact causing, severe emotional distress to Plaintiffs-
Appellees. In this regard, and thus in respect of the second
prong of malice, it is relevant that the officers’ alleged
19
conduct occurred during a funeral. The Supreme Court of North
Carolina has long recognized that a funeral is a solemn event
that creates certain rights in mourners and requires that
special care be taken by third parties. Floyd v. Atl. Coast
Line Ry. Co., 83 S.E. 12, 12-13 (N.C. 1914) (“There is a duty
imposed by the universal feelings of mankind to be discharged by
someone toward the dead, a duty, and we may also say a right, to
protect from violation, and a duty on the part of others to
abstain from violation.”); cf. Parker v. Quinn-McGowen Co., 138
S.E.2d 214 (N.C. 1964) (noting that next of kin has a quasi-
property right in a deceased body for its burial and there
arises out of that right an emotional interest which should be
protected and which others have a duty not to injure
intentionally or negligently); Lamm v. Shingleton, 55 S.E.2d
810, 813 (N.C. 1949) (“The tenderest feelings of the human heart
center around the remains of the dead.”).
Other states, and other courts, have similarly recognized
the rights and protections afforded by law to funerals and
burials. See, e.g., Holland v. Metalious, 198 A.2d 654, 656
(N.H. 1964) (“The right to ‘decent’ burial is one which has long
been recognized at common law, and in which the public as well
as the individual has an interest”); King v. Elrod, 268 S.W.2d
103, 105 (Tenn. 1953) (“[T]he right to decent burial is well
guarded by the law, and relatives of a deceased are entitled to
20
insist upon legal protection for any disturbance or violation of
this right.” (citation omitted)); Koerber v. Patek, 102 N.W. 40,
43 (Wis. 1905) (“We can imagine no clearer or dearer right in
the gamut of civil liberty and security than to bury our dead in
peace and unobstructed. . . . [N]one where the law need less
hesitate to impose upon a willful violator responsibility for
the uttermost consequences of his act.”); cf. Snyder v. Phelps
__ U.S. __, __, 131 S.Ct. 1207, 1227-1228 (2011) (Alito, J.,
dissenting) (explaining that “the emotional well-being of
bereaved relatives is particularly vulnerable” at funerals
because intrusions “may permanently stain their memories of the
final moments before a loved one is laid to rest,” and, as a
result, “funerals are unique events at which special protection
against emotional assaults is in order”); Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 167-70 (2004) (noting
that “[b]urial rites or their counterparts have been respected
in almost all civilizations from time immemorial,” and further
noting that funerals “are a sign of the respect a society shows
for the deceased and for the surviving family members”). 5
5
Indeed, a number of states have gone so far as to create a
special category within the common law tort of negligent
infliction of emotional distress for interference with proper
burials. See Restatement (Third) Torts § 46 (Tentative Draft
No. 5 2007).
21
As to the third prong of malice under Grad, Plaintiffs-
Appellees must produce at least some evidence that the
defendants “intend[ed] to be prejudicial or injurious to
another.” Kaasa, 321 S.E.2d at 890; see Hawkins v. State of
North Carolina, 453 S.E.2d 233, 242 (N.C.App. 1995). 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. 6 See, e.g.,
Showalter v. N.C. Dept. of Crime Control & Public Safety, 643
S.E.2d 649 (N.C.App. 2007) (finding summary judgment
inappropriate on public officer’s immunity where trooper stated
he did not act maliciously but where trooper’s actions in macing
plaintiff and dragging him from car during traffic stop created
a genuine issue of fact as to whether actions were done with
malice); Thompson v. Town of Dallas, 543 S.E.2d 901, 905
6
Although allegations of “reckless indifference” in the
complaint may be insufficient to survive a motion to dismiss,
see, e.g., Jones v. Kearns, 462 S.E.2d 245, 248 (N.C. App.
1995), evidence of conduct manifesting a reckless indifference
to the rights of others may in some cases be “substantial
evidence” from which a jury may properly infer specific intent
to injure. See, e.g., State v. Barlowe, 337 N.C. 371, 379, 446
S.E.2d 352, 357 (1994) (“Intent must normally be proved by
circumstantial evidence, and an intent to kill may be inferred
from the nature of the assault, the manner in which it was made,
the conduct of the parties, and other relevant circumstances.”
(quotation marks and alterations omitted)).
22
(N.C.App. 2001) (finding that genuine issue of material fact as
to whether officer acted with malice in arresting motorist
precluded summary judgment on punitive damages claim).
Arguably, the very act of selecting the moment a grieving
son places his father’s casket into a hearse to execute his
arrest in front of his family and innocent third party attendees
demonstrates an intent to injure him, his family, and anyone
else at the funeral grieving the decedent’s death. This is
especially true where, as here, there were numerous
opportunities to serve the warrant elsewhere, the sheriff’s
office had previously promised not to take any action until
after the funeral, and the officers did not believe there was
any threat necessitating an immediate arrest. As Plaintiffs-
Appellees allege, the conduct of Brown, Jordan, and Price is
sufficient to create a genuine issue of fact material to the
issue of public officer’s immunity, particularly as to the
officers’ intent in creating and executing the arrest plan.
II.
For the reasons given above, we affirm the district court’s
denial of summary judgment.
AFFIRMED
23
KING, Circuit Judge, dissenting:
With the utmost respect for my distinguished colleagues in
the majority, I dissent from their decision to permit the
plaintiffs to attempt to hold the arresting deputies and their
immediate supervisor individually liable at trial for the
botched arrest at the funeral home. No reasonable jury could
conclude from the record on summary judgment that these
defendants acted with the requisite malice such that their
entitlement to the immunity routinely afforded public officials
under North Carolina law ought to be abrogated. Perhaps more
importantly, and no matter the deputies’ subjective intentions
toward GT Russ III (“Mr. Russ”) in taking him into custody,
there is simply no evidentiary basis to deduce that they meant
any harm whatsoever to the plaintiffs.
The majority’s analysis correctly focuses on the question
of malice; there is no legitimate allegation that, in arresting
Mr. Russ, the deputies were corruptly influenced or undertook an
act outside their job description. See Grad v. Kaasa, 321
S.E.2d 888, 890 (N.C. 1984) (“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.”). There is likewise no indication
that, in performing their jobs, the deputies lacked probable
24
cause to arrest Mr. Russ or that they were without legal
entitlement to park at the funeral home and traverse its
grounds.
The execution of the arrest warrant was indisputably
tactless and clumsy. In denying the deputies summary judgment
on the individual-capacity claims, the district court went
farther, observing that the plaintiffs “put forward sufficient
evidence of extreme and outrageous conduct and reckless
indifference.” Russ v. Causey, 732 F. Supp. 2d 589, 613
(E.D.N.C. 2010). Even if one concurs in the court’s
characterization, the difficulty with its ruling is that neither
“extreme and outrageous conduct” nor “reckless indifference”
equates to malice under North Carolina law.
“Extreme and outrageous conduct” is an element of a claim
for intentional infliction of emotional distress, but the term
merely describes the necessary predicate act. See Johnson v.
Antioch United Holy Church, Inc., 714 S.E.2d 806, 811 (N.C. Ct.
App. 2011) (reciting essential elements of claim as “(1) extreme
and outrageous conduct by the defendant (2) which is intended to
and does in fact cause (3) severe emotional distress” (citation
and internal quotation marks omitted)). The conduct alone is
not actionable unless accompanied by a particular mental state,
i.e., the intent to inflict a cognizable psychic injury upon the
plaintiff, with the result that such injury consequently occurs.
25
“Reckless indifference,” on the other hand, does describe a
mental state — one that is potentially actionable in many
contexts — but one that falls short of the rigorous threshold
for malice. Indeed, the North Carolina courts have squarely
held that “[a] plaintiff may not satisfy this burden [of showing
malice or corruption] through allegations of mere reckless
indifference.” Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C.
Ct. App. 2000). A public official “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.” Grad, 321 S.E.2d at 890
(citation omitted). A “wanton” act is one “done of wicked
purpose, or when done needlessly, manifesting a reckless
indifference to the rights of others.” Id. at 891 (citation
omitted).
A considered reconciliation of the above excerpts from Grad
reveals that a wanton act, even one tending less toward wicked
and more toward needless (from which a general state of reckless
indifference might be inferred), is, standing alone,
insufficient to establish malice. Such an act must also be
objectively contrary to the officer’s duty and target a specific
26
person for detriment. 1 Thus, although the deputies may have
callously and boorishly invaded the solemnity of the funeral
proceedings, it does not follow that their zeal translated into
malice. It is also not determinative that the deputies may have
contravened the prescribed arrest procedure by neglecting to
identify themselves prior to engaging Mr. Russ. The majority
elevates this technical breach to the violation of a statutory
duty, see ante at 17-18, but even assuming the correctness of
the majority’s position, it was a violation without meaning in
this case.
The fracas did not occur because the deputies failed to
identify themselves; it occurred because Mr. Russ, without
cause, vigorously resisted arrest. The record conclusively
establishes that Mr. Russ is, without question, a scofflaw who,
1
The majority errs in overemphasizing the initial component
of the Grad framework, making the unjustified logical leap that
“[w]hen the definition of ‘wanton’ is grafted into the
definition of ‘malice,’” ante at 16, the incorporation within
wantonness of an inchoate aura of reckless indifference is
determinative of malice if a police officer is found to have
breached any duty (not necessarily one related to the alleged
injury) and intends to harm or injure any person (not
necessarily the plaintiff). See id. at 17-22. The majority’s
approach, in effect, squarely contravenes the admonition in
Schlossberg that the conduct of police officers in the field be
evaluated under the rigorous causal and targeting requirements
accompanying the malice standard, and not under the more
amorphous, less accommodating reckless indifference standard.
27
over the years, has made a habit of evading capture. 2 In this
particular instance, Mr. Russ was well aware that the Sheriff’s
Office possessed a warrant for his arrest. Five days before the
funeral, Mr. Russ barricaded himself inside his parent’s house
to keep from being arrested, and, two days after that, broke a
promise to turn himself in. There can be no credible contention
that Mr. Russ did not understand perfectly well who was
accosting him at the funeral home, notwithstanding that he may
not have been personally acquainted with the arresting deputies.
See N.C. Gen. Stat. § 15A-401(c)(2) (disposing of identification
requirement if arresting officer’s “identity is otherwise
apparent”). 3 Furthermore, under the circumstances present here,
2
For example, Deputy Mario Gonzalez filed an uncontested
declaration that “Mr. Russ . . . was known within the New
Hanover County Sheriff’s Office to be an elusive individual who
could be very difficult to locate and apprehend . . . . On
repeated occasions, he had promised me over the telephone that
he would turn himself in, but he invariably failed to do so.”
J.A. 70 (citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal).
3
The plaintiffs’ own witness, Ronald Simmons, submitted an
affidavit that Mr. Russ, prior to being subdued, acknowledged
that the men engaging him were police officers by stating that
“I had permission to turn myself in.” J.A. 833. That the
bystanders were momentarily at sea concerning the deputies’
identity is immaterial, as it was solely Mr. Russ who was
responsible for escalating the encounter. Mr. Simmons’s
particular expression of bewilderment: “I thought what was
going on was some kind of [M]afioso type hit,” id., does not
(Continued)
28
whatever duty the deputies might have short-circuited by virtue
of their subterfuge was countermanded by their overriding duty
to take Mr. Russ into custody before he could leave the
jurisdiction. See State v. Harvey, 187 S.E.2d 706, 712 (N.C.
1972) (“When a warrant . . . is placed in the hands of an
officer for execution, it is his duty to carry out its demands
without delay, and he incurs no liability for its proper
execution, however disastrous may be the effect on the person
against whom it is issued.”). That duty the deputies fulfilled,
albeit inelegantly. 4
exactly inspire confidence in the plaintiffs’ contention that
Mr. Russ lacked culpability for the incident.
4
Though the majority plainly hangs its hat on the alleged
violation of the deputies’ duty to identify themselves, it
conflates that supposed misstep with several other actions it
considers “brutish and bullying” or otherwise objectionable,
ante at 17, to declare that the officers were bound to observe a
considerably broader “duty not to engage in extreme and
outrageous conduct.” Id. at 18. Such a general mandate might
constitute useful public policy in the realm of everyday tort
law. It is of limited utility, however, to guide the actions of
police officers, who routinely fulfill their duties by lawfully
engaging in conduct that would be considered extreme if done by
an ordinary citizen. Tellingly, none of the cases cited by the
majority as establishing a special legal status for funerals and
burials, see ante at 19-20, remotely involved police conduct,
and none have discussed the need for balancing society’s
interest in the solemnity of death rituals with the
countervailing interest in the effective execution of criminal
justice.
29
Perhaps more importantly for the purposes of our analysis,
any injury or prejudice that the deputies may have intended by
virtue of their actions was directed solely at Mr. Russ. There
is no indication in the record of any animosity or ill-will
between the deputies and the plaintiffs. See J.A. 379, 596
(documenting plaintiffs’ deposition admissions that defendants
bore them no personal animus). To the contrary, all indications
are that the Sheriff’s Office extended the plaintiffs every
consideration and courtesy throughout the days leading up to the
incident and beyond. See id. at 76 (memorializing Deputy
Gonzalez’s condolences to Peggy Russ on her husband’s death and
forgoing confrontation concerning her son’s whereabouts); id. at
145 (setting forth Chief Deputy McMahon’s accession to Peggy
Russ’s pleas to stay away from residence during mourning
period); id. at 369 (acknowledging McMahon’s apology to
plaintiffs).
The majority pays little heed to the targeting requirement,
suggesting that the deputies’ timing of Mr. Russ’s arrest
arguably “demonstrates an intent to injure him, his family, and
anyone else at the funeral grieving the decedent’s death.” Ante
at 22. The majority’s supposition finds no support in North
Carolina law, and it in fact appears to be an attempt to engraft
the negligence concept of foreseeability (which usually
circumscribes the contours of duty and damages) onto a very
30
different type of claim, the successful prosecution of which has
heretofore required a specific malevolent or uncaring intent on
the part of the defendant. 5 This unwarranted expansion of the
universe of potential plaintiffs is also in contravention of the
state’s statutory scheme regarding the award of punitive damages
in cases where the defendant has acted maliciously. See N.C.
Gen. Stat. § 1D-15(a)(2). In such instances, the plaintiff must
prove malice “toward the claimant that activated or incited the
defendant to perform the act or undertake the conduct that
resulted in harm to the claimant.” Id. § 1D-5(5) (emphasis
5
The majority cites Prior v. Pruett, 550 S.E.2d 166 (N.C.
Ct. App. 2001), for the uncontroversial proposition, echoed in
Schlossberg, that “generally, claims of negligence can not be
maintained against public officials in their individual
capacity, [but] these actions may be maintained if plaintiffs
bring forth evidence sufficient to pierce the cloak of official
immunity.” Id. at 171 (citation and internal quotation marks
omitted). It was probably no accident that the court in Prior
distinguished between “claims of negligence” and “these
actions.” An action arises out of a specific occurrence or set
of circumstances that, under the applicable law, may engender
myriad claims supporting the imposition of liability. When it
is demonstrated that a defendant public official has acted
culpably enough to pierce the cloak of immunity, the plaintiff
no longer has a claim for ordinary negligence; instead, the
claim is for an intentional tort (assault and battery in
Schlossberg, and here, infliction of emotional distress) or some
functional equivalent. Indeed, the denial of summary judgment
to the police defendants in Prior was based on the court’s
determination that genuine issues of material fact remained with
respect to the officers’ allegedly wanton conduct and gross
negligence. See id. at 171-72, 174.
31
added). Here, the record is clear that, when the commotion
began, the plaintiffs were in a limousine waiting for the
procession to the gravesite to commence. That they had to exit
their vehicle and walk around the building to see what was
happening belies the conclusion that the deputies intended them
any harm at all.
I would hold that the district court erred in withholding
public officials immunity from the arresting deputies and their
supervisor, and I would reverse the denial of summary judgment
on that basis. I would remand with instructions to grant
summary judgment to all defendants as to the entirety of the
plaintiffs’ action, including the negligence claims, concluding
that as distasteful as the entire episode undoubtedly was, the
defendants owed no cognizable legal duty to the plaintiffs to
refrain from arresting Mr. Russ at the funeral home. Because my
good friends in the majority disagree and will allow this matter
to proceed to trial, I respectfully dissent.
32