Anderson v. Caldwell County Sheriff's Office

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2344

JERRY ANDERSON,

Plaintiff - Appellee,

v.

CALDWELL COUNTY SHERIFF'S OFFICE; ALAN C. JONES,
Individually and in his Official Capacity as Sheriff of the
Caldwell County Sheriff's Office; JEFFERY LEE STAFFORD,
Individually and in his Official Capacity as a Deputy
Sheriff of the Caldwell County Sheriff's Office; BRIAN
ANTHONY BENNETT, Individually and in his Official Capacity
as a Deputy Sheriff of the Caldwell County Sheriff's Office;
SHELLY HARTLEY, Individually and in her Official Capacity as
a Deputy Sheriff of the Caldwell County Sheriff's Office;
FIDELITY AND DEPOSIT COMPANY OF MARYLAND; THE OHIO CASUALTY
INSURANCE COMPANY,

Defendants – Appellants,

and

JOHN DOE, representing Other Unidentified Officers of the
Caldwell County Sheriff's Office, Individually and in his
Official Capacity as a Deputy Sheriff of the Caldwell County
Sheriff's Office; JANE DOE, representing Other Unidentified
Officers of the Caldwell County Sheriff's Office,
Individually and in her Official Capacity as a Deputy
Sheriff of the Caldwell County Sheriff's Office; DOE BOND
COMPANY; CHRISTOPHER BRACKETT, Individually and in his
Official Capacity as a Deputy Sheriff of the Caldwell County
Sheriff's Office; TRACY PYLE, Individually and in his
Official Capacity as a Deputy Sheriff of the Caldwell County
Sheriff's Office,

Defendants.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cv-00423-MR-DLH)

Argued: January 29, 2013 Decided: April 24, 2013

Before DAVIS and KEENAN, Circuit Judges, and John A. GIBNEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.

Reversed in part, dismissed in part, and remanded by unpublished
per curiam opinion.

James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE & RICE, PLLC,
Winston-Salem, North Carolina, for Appellants. Robert Mauldin
Elliot, ELLIOT, PISHKO & MORGAN, PA, Winston-Salem, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

This case comes before the Court on an interlocutory appeal

of the district court’s denial of a motion for summary judgment

on the ground of qualified immunity. The central issue is

whether law enforcement officers had probable cause to arrest

the plaintiff-appellee for the murder of his wife. The Court

finds that probable cause existed for the arrest, entitling the

arresting officers to qualified immunity on the plaintiff-

appellee’s claims under 42 U.S.C. § 1983. Because those claims

fail, the plaintiff-appellee’s derivative federal claims of

supervisory and local government liability also fail. The Court

also concludes that public officers’ and governmental immunity

shield the defendants-appellants from most of the plaintiff-

appellee’s state law claims, but the Court lacks jurisdiction to

review the statutory bond claim.

I.

A.

Jerry Anderson (“Anderson”) commenced this action by filing

a complaint in which he alleged that the defendants had harmed

him in various ways. Specifically, under § 1983 he asserted a

claim that various Caldwell County Deputy Sheriffs, led by

Captain Jeffery Lee Stafford (“Stafford”), violated his Fourth

Amendment rights. He sued the Caldwell County Sheriff’s Office

(“CCSO”) and Sheriff Alan C. Jones (“Jones”) for failure to

3
train and supervise the deputy sheriffs. He also asserted state

law claims of malicious prosecution, false arrest, and

obstruction of justice. Finally, he sued the CCSO’s liability

insurer and bonding company for any damages caused by the

alleged violations of his rights. 1

The defendants-appellants filed motions for summary

judgment on a number of bases, including qualified immunity,

public officers’ immunity, and governmental immunity. The

district court denied those motions, leading to this

interlocutory appeal. 2

B.

In December 2005, the plaintiff-appellee’s wife, Emily

Anderson (“Emily”) went missing from their farm in Caldwell

County, North Carolina. Nine days later, Stafford and the CCSO

investigative team found her body in the toolbox of her truck,

which had been abandoned in South Carolina. After a lengthy

investigation, Stafford arrested Anderson for his wife’s murder.

1
Anderson sued the sheriff and deputies in both their
individual and official capacities. Suits against public
officers in their official capacities actually raise claims
against the entity for which the officer works. Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985). We, therefore, will not
discuss the official capacity claims against the individual
defendants.
2
The district court did grant summary judgment (1) in favor
of Deputy Bennett in his individual capacity for all claims and
(2) in favor of all the defendants as to Anderson’s negligence
claims. These decisions are not relevant to this appeal.

4
A grand jury indicted him about two weeks later for first-degree

murder. Anderson stood trial for nine weeks in mid-2007, but

the jury could not reach a verdict. The judge declared a

mistrial, and ultimately the state dismissed the case without

prejudice.

The following facts led to Anderson’s arrest and

prosecution:

On December 29, 2005, the day Emily disappeared, a worker

on Anderson’s farm heard Emily and Anderson arguing. At 9:30

a.m., not long after the argument, Anderson and Emily drove to a

wooded area of their farm — Anderson drove a front-end loader

and Emily drove her pickup truck. A neighbor heard the front-

end loader driving on Anderson’s farm near the wooded area, and

then heard two shots. Another neighbor also heard two shots.

When the police later found Emily’s body, it had dirt and grass

on it, as well as two gunshot wounds.

One half-hour after driving out to the wooded area,

Anderson returned to the farm buildings in the front-end loader.

He told workers on the farm to clean the loader, paying special

attention to the bucket. A worker told the officers that this

was an unusual request by Anderson. Forensic analysis later

showed bloodstains on the bucket of the front-end loader.

Sometime between 10 a.m. and noon, Anderson had a worker

drive him to the wooded area, where Anderson got out of the

5
vehicle with a large plastic bag. The next day, he told his

employees to search the area for a cell phone.

Although none of the farm workers saw Anderson again until

the late afternoon, he instructed them to tell anyone who asked

that he had been at the farm all day. To bolster this story, he

later changed oil filters on some farm equipment, backdated the

documentation of the repair to December 29, 2005, and told a

worker to lie about the date they had changed the filters.

The CCSO unearthed additional evidence relating to Emily’s

death, most of it pointing to Anderson as the culprit. In

summary, the evidence is as follows:

• Several people indicated that the Andersons were

unhappily married, and that Emily planned to leave

Anderson.

• Anderson had found cards to Emily from a man named

Bill. He also had found indications that someone had

sent her flowers.

• When the deputies told Anderson about Emily’s death,

he showed no emotion and, in fact, laughed and “told

stories.”

• Not long before Emily’s disappearance, Anderson had

applied for and received a new passport, listing his

sister as his emergency contact.

6
• Emily had $4.5 million in life insurance with Anderson

and their company as beneficiaries. Anderson’s first

wife, Teresa Martin, told officers that Anderson had

her get life insurance designating him as the

beneficiary. Martin stated that at some point during

the marriage she woke up disorientated in the trunk of

the car. Anderson said he planned to hide her away

and collect the insurance money, but eventually he let

her out of the trunk.

• Bank of America notified the deputies that there had

been no activity on Emily’s account since December 23,

2005.

• Alltel, the Andersons’ phone company, reported that

Emily’s phone showed no activity after December 28,

2005. The deputies found her phone attached to her

belt. The phone company told the CCSO that the phone

had been in South Carolina since December 29, 2005.

• An Alltel representative told the CCSO that he

believed that Anderson had turned his cell phone off

between the hours of 12:04 p.m. and 4:51 p.m. on

December 29, 2005. Turning the phone off would avoid

cell site registry during that time. In addition,

Anderson had Emily’s calls forwarded to his phone.

7
 • Although he told the deputies he owned no guns,

Anderson actually owned several firearms.

• Cadaver dogs had indicated that a corpse had been in

the wooded area of Anderson’s farm.

Based on the foregoing, Stafford and the deputies developed

a theory of the crime. They believed that while in the wooded

area on the morning of December 29, 2005, Anderson had fatally

shot Emily. He then loaded her body into the toolbox on her

truck, and drove her to South Carolina, where he abandoned the

truck in a motel parking lot.

Not all the evidence, however, indicated Anderson’s guilt.

The following evidence surfaced casting some doubt on the

deputies’ theory:

• Anderson passed a polygraph test at the CCSO’s

request.

• A Waffle House cook in South Carolina told Stafford

that he had received a call on the day they discovered

the body. The anonymous caller said that the truck of

the “missing woman from North Carolina” was in the

parking lot of the Quality Inn located next to the

Waffle House. The cook said he believed that the

truck had been parked there for two weeks.

8
 • The Waffle House cook said that, during that time, he

thought he had seen the driver’s side door open and a

white male approximately 5’8” to 5’9” with blond hair

and a crew cut standing next to the door. The manager

was not certain, however, that the individual was

standing next to Emily’s truck.

• A pathologist and a medical examiner offered opinions

that Emily had most likely died one to three days

before the discovery of her body on January 7, 2006.

They could not rule out, however, that she had died up

to ten days earlier.

Finally, the deputies received some information, the

significance of which is unclear, because they simply did not

follow up on the leads:

• The CCSO did not question people who had registered at

the Quality Inn during the time Emily’s truck was

there.

• The cleaning crew at the motel found some eyeglasses

in a room after the police found her body. Emily was

missing her eyeglasses when the police discovered her

body.

• Two Waffle House employees said they had seen a woman,

matching Emily’s description, wearing an Old Navy

9
 shirt; Emily had been wearing a similar shirt when the

police found Emily’s body. The woman had entered the

Waffle House several times late on the night before

the police found her body. This person had been

accompanied by a white male.

• Motel employees saw a white male and female pull up

beside Emily’s truck in the parking lot.

• A man reported to Stafford’s secretary that he had

seen Emily either on December 28 or 29 at 8:30 a.m. at

a convenience store in Caldwell County with a man with

dark hair in a mullet haircut (short on the sides,

long in the back).

With the foregoing evidence in hand, Stafford appeared

before a magistrate, testified under oath, and secured an arrest

warrant. The magistrate kept no recording or other record of

precisely what Stafford said to obtain the warrant.

II.

As an initial matter, the Court must determine the

propriety and scope of the appeal.

The defendants-appellants appeal the district court’s

denial of summary judgment on the grounds of qualified immunity,

public officers’ immunity, and governmental immunity.

Ordinarily, courts of appeals will only hear appeals of final

orders, Bailey v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003),

10
and “[d]enials of summary judgment are not final orders,”

Hensley v. Horne, 297 F.3d 344, 347 (4th Cir. 2002). Certain

immunities, however, present an exception to the general rule.

Bailey, 349 F.3d at 738–39.

Qualified immunity is not only an immunity from liability,

but also immunity from the burdens of facing trial. Brown v.

Gilmore, 278 F.3d 362, 366–67 (4th Cir. 2002) (citing Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985)). When a district court

denies a motion based on qualified immunity, the defendant can

appeal immediately, before a full trial on the merits. Winfield

v. Bass, 106 F.3d 525, 528-29 (4th Cir. 1997) (en banc).

Otherwise the protection against the burdens of trial is lost,

regardless of the outcome of the appeal. Mitchell, 472 U.S. at,

526.

Similarly, “under North Carolina law, public officers’

immunity is an immunity from suit.” Bailey, 349 F.3d at 738–39

(citing Summey v. Barker, 544 S.E.2d 262, 264 (N.C. Ct. App.

2001)). So, too, is governmental immunity, which “bars action

against, inter alia, the state, its counties, and its public

officials sued in their official capacity.” Arrington v.

Martinez, 716 S.E.2d 410, 414 (N.C. Ct. App. 2011).

As in all motions for summary judgment, the existence of a

genuine dispute of material issues of fact precludes a district

court from granting summary judgment on the basis of immunity.

11
If the factual conflicts form the basis of the denial of summary

judgment, an appellate court cannot decide the issues, and it

lacks jurisdiction over the case. See Winfield, 106 F.3d at

529. “If, however, resolution of the factual dispute is

immaterial to whether immunity should be afforded, the

underlying legal question about whether immunity is to be

afforded remains and may be appealed . . . .” Jackson v. Long,

102 F.3d 722, 727 (4th Cir. 1996). In the instant case, the

district court found that material issues of fact prevented it

from awarding summary judgment. Based on this ruling by the

trial court, the plaintiff-appellee moves to dismiss the appeal.

The district court did not issue a written opinion.

Rather, the court stated its reasoning in a relatively brief

oral ruling. It believed that material questions of fact

existed as to (1) whether Stafford lied to the magistrate to get

the arrest warrant; (2) whether Stafford obtained the arrest

warrant by omitting substantial exculpatory evidence; (3)

whether Hartley participated with Stafford in getting the

warrant; and (4) whether probable cause would exist when the

court excised the impermissible elements from Stafford’s

presentation to the magistrate.

It goes without saying, of course, that parties frequently

raise factual disputes when litigating motions for summary

judgment. Courts can grant summary judgment to a movant,

12
however, as long as the facts are taken in the light most

favorable to the party opposing summary judgment. Scott v.

Harris, 550 U.S. 372, 378 (2007); Brown, 278 F.3d at 362 n.2.

This rule applies in cases involving immunity, as in any other

summary judgment context. Scott, 550 U.S. at 378; Brown, 278

F.3d at 366 n.2. The obligation of the Court, in such cases, is

to decide whether, as a matter of law, viewing the facts in the

light most favorable to the plaintiff, the defendant should

prevail based on immunity. Scott, 550 U.S. at 378. That the

parties differ about the facts does not necessarily preclude

appellate review. Rather, “this [factual conflict] usually

means adopting . . . the plaintiff's version of the facts.” Id.

This is precisely the function of the Court in this case.

We do not decide disputed facts, but rather questions of law —

whether the facts taken in the light most favorable to Anderson

establish the defendants-appellants’ entitlement to qualified

immunity, public officers’ immunity, and/or governmental

immunity. The Court has jurisdiction to make such a ruling, and

we deny the plaintiff-appellee’s motion to dismiss the appeal.

III.

The defendants-appellants argue that the officers in their

individual capacities are entitled to qualified immunity on the

federal claims. For the reasons set forth herein, we agree.

13
 A.

We review de novo a district court’s denial of an officer’s

claim of entitlement to qualified immunity. See, e.g., Melgar

v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). Government

officials performing discretionary functions are entitled to

qualified immunity from liability for civil damages to the

extent that “their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). When ruling on a qualified immunity claim, we must

consider two questions: (1) whether a constitutional or

statutory right would have been violated on the facts alleged by

the plaintiff, and (2) whether the right asserted was clearly

established at the time of the alleged violation. Saucier v.

Katz, 533 U.S. 194, 200 (2001). 3

The district court erred in denying summary judgment to the

officers on Anderson’s Fourth Amendment claims. Based on our

review of the record, we conclude that probable cause existed at

the time that Stafford sought the arrest warrant and arrested

3
The Court need not consider these issues in any particular
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). A
resolution of either question in the defendants’ favor mandates
a judgment in favor of the defendants.

14
Anderson. 4 Thus, Stafford did not violate Anderson’s Fourth

Amendment right to be free from an unreasonable seizure.

Because no constitutional violation occurred, the Court need not

proceed to the second step of the Saucier qualified immunity

analysis.

B.

“The Fourth Amendment prohibits law enforcement officers

from making unreasonable seizures, and seizure of an individual

effected without probable cause is unreasonable.” Brooks v.

City of Winston-Salem, 85 F.3d 178, 183 (4th Cir. 1996) (citing

Graham v. Conner, 490 U.S. 386, 396–97 (1989)). So long as the

officer supports the arrest with probable cause, the police have

not committed a constitutional violation. See S.P. v. City of

Takoma Park, Md., 134 F.3d 260, 274 (4th Cir. 1998).

When a police officer acts pursuant to a warrant, he is

entitled to qualified immunity if he could have reasonably

believed that probable cause existed to support the application.

Porterfield v. Lott, 156 F.3d 563, 570 (4th Cir. 1998) (citing

Malley v. Briggs, 475 U.S. 335, 344–45 (1986)). For probable

cause to exist, there need only be sufficient evidence to

4
Regardless of what Stafford actually said to the
magistrate, probable cause still existed for Anderson’s arrest.
Thus, the alleged uncertainty as to what Stafford told the
magistrate does not give rise to a genuine dispute over a
material fact.

15
warrant the belief of a reasonable officer that an offense has

been or is being committed. Brown v. Gilmore, 278 F.3d at 367.

See also Wong Sun v. United States, 371 U.S. 471, 479 (1963).

The law does not require that the officer have evidence

sufficient to convict the criminal defendant. Brown, 278 F.3d

at 367. Once a neutral and detached magistrate deems an arrest

reasonable by finding that probable cause exists for the arrest,

the continuing seizure of the criminal defendant is also

reasonable. Brooks, 85 F.3d at 184; Taylor v. Waters, 81 F.3d

at 436.

The Supreme Court defines probable cause as a “commonsense,

nontechnical” concept that deals “with the factual and practical

considerations of everyday life on which reasonable and prudent

men, not legal technicians, act.” Ornelas v. United States, 517

U.S. 690, 695 (1996) (internal quotation marks omitted) (citing

Illinois v. Gates, 462 U.S. 213, 231 (1983)). This Court has

stated that the probable cause standard does not require that

the officer's belief be more likely true than false. United

States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004) (citing

United States v. Jones, 31 F.3d 1304, 1313 (4th Cir. 1994)).

Thus, a probable cause determination turns on the assessment of

probabilities. Gates, 462 U.S. at 232. “[O]nly the

probability, not a prima facie showing, of criminal activity is

the standard of probable cause.” Id. at 235.

16
 A court makes a finding of probable cause based on the

totality of the circumstances known to the officer at the time

of the arrest. Brown, 278 F.3d at 367. Yet, an officer “may

not disregard readily available exculpatory evidence of which he

is aware.” Wadkins v. Arnold, 214 F.3d 535, 541 (4th Cir.

2000). “Objective inquiry into the reasonableness of an

officer’s perception of the critical facts leading to an arrest

. . . . must charge him with possession of all the information

reasonably discoverable by an officer acting reasonably under

the circumstances.” Sevigny v. Dicksey, 846 F.2d 953, 957 n.5

(4th Cir. 1988).

Although an officer may not disregard readily available

exculpatory evidence that he knows about, the failure to pursue

potentially exculpatory leads will not negate probable cause.

Wadkins, 214 F.3d at 541 (citing Torchinsky v. Siwinski, 942

F.2d 257, 264 (4th Cir. 1991)). The law does not require

reasonable law enforcement officers to “exhaust every

potentially exculpatory lead or resolve every doubt about a

suspect's guilt before probable cause is established.”

Torchinsky, 942 F.2d at 264 (citing Krause v. Bennett, 887 F.2d

362, 371 (2d Cir. 1989) (“[P]robable cause does not require an

officer to be certain that subsequent prosecution of the

arrestee will be successful.”)).

17
 Here, the plaintiff-appellee asks the Court to judge the

CCSO investigation through the lens of hindsight. The

plaintiff-appellee complains that Stafford relied on a great

deal of “questionable” evidence, did not properly evaluate the

credibility of witnesses, and clearly did not tell the

magistrate about “exculpatory” evidence. But even assuming the

plaintiff-appellee is correct in his arguments about the facts,

probable cause still existed.

First, as noted above, the failure to follow up on

potentially exculpatory leads does not control the ruling in

this case. “[T]he failure to pursue a potentially exculpatory

lead is not sufficient to negate probable cause.” Wadkins, 214

F.3d at 541.

Moreover, the fact that no contemporary record exists to

show what Stafford said to the magistrate when seeking the

arrest warrant does not undermine the showing in this record of

the existence of probable cause. While this practice of

providing only oral testimony is of concern to the Court in a

general sense, for the purposes of this analysis, the Court need

not delve into this issue. Based on a review of the facts

available to Stafford, probable cause existed at the time he

sought the arrest warrant and arrested Anderson.

Without repeating the evidence in great detail, the

undisputed evidence showed that the Andersons had a rocky

18
marriage, that Anderson and Emily had gone into a wooded area on

the farm on the morning of December 29, 2005, that the sound of

gunshots emanated from the wooded area, that Anderson drove a

front-end loader to the wooded area, that forensic analysis

showed the presence of blood in the bucket of the front-end

loader, that Anderson was not seen most of the day Emily

disappeared, and that Anderson had instructed his employees to

lie concerning his presence on the day Emily disappeared. In

addition, the undisputed evidence showed that Anderson had a

large insurance policy on Emily’s life, that he had firearms,

that it appeared he had turned his phone off for several hours

on the day Emily disappeared, and that Emily’s phone was in

South Carolina starting on the day she disappeared.

Probable cause existed to believe Anderson killed his wife,

and the arrest of Anderson therefore did not violate the Fourth

Amendment. Moreover, even considering all of the potentially

exculpatory evidence cited by Anderson that was known to

Stafford, alongside the inculpatory evidence set forth above,

there was still probable cause to arrest Anderson. Having

concluded that no constitutional violation occurred, we need not

proceed to the second step of the Saucier qualified immunity

analysis.

19
 C.

Because no Fourth Amendment violation occurred, the sheriff

and the CCSO may not be held liable for failure to train or

supervise the Caldwell County deputies. 5 No actionable claim

against supervisors or local governments can exist without a

constitutional violation committed by an employee. City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam);

Giancola v. State of W. Va. Dep’t of Pub. Safety, 830 F.2d 547,

550 (4th Cir. 1987). Thus, Anderson’s claims of inadequate

training or supervision cannot proceed. Belcher v. Oliver, 898

F.2d 32, 36 (4th Cir. 1990). Sheriff Jones and the CCSO,

therefore, are not liable under § 1983.

IV.

The defendants-appellants argue that the officers in their

individual capacities are entitled to public officers’ immunity

on Anderson’s state law claims against them. We review the

denial of public officers’ immunity de novo. Bailey, 349 F.3d at

739.

5
Since the CCSO does not enjoy qualified immunity,
ordinarily we would lack jurisdiction to consider its liability
in an interlocutory appeal. But because the CCSO’s liability is
“inextricably intertwined” with the deputies’ liability, the
Court will assume pendent jurisdiction over the CCSO’s appeal.
Altman v. City of High Point, 330 F.3d 194, 207 n.10 (4th Cir.
2003).

20
 Under North Carolina law, plaintiffs may hold public

officials who are engaged in the exercise of discretionary,

governmental duties personally liable only for “corrupt or

malicious” actions. Smith v. Hefner, 68 S.E.2d 783, 787 (N.C.

1952); Bailey, 349 F.3d at 742.

Anderson does not argue that the officers undertook their

actions in a corrupt manner. Rather, Anderson argues that the

officers undertook their actions maliciously. “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.” Grad v.

Kaasa, 321 S.E.2d 888, 890 (N.C. 1984). The North Carolina

Supreme Court classifies an act as wanton when “done of a wicked

purpose, or when done needlessly, manifesting a reckless

indifference to the rights of others.” Id. at 890–91.

The Court of Appeals of North Carolina recently held that

if probable cause existed for the issuance of an arrest warrant,

public officer’s immunity shields the defendants from individual

liability. Beeson v. Palombo, 727 S.E.2d 343, 346 (N.C. Ct.

App. 2012).

Not only did probable cause exist for Anderson’s arrest,

but Anderson has not put forth evidence that the officers acted

with reckless indifference to his rights. Additionally, because

probable cause existed, a person of reasonable intelligence

21
would not know that his actions were contrary to his duty.

Further, Anderson has not put forth any evidence that the

officers intended for their acts to be prejudicial to Anderson.

Thus, public officer’s immunity bars the state law claims

against the officers in their individual capacities.

Accordingly, we hold that the district court erred in failing to

enter summary judgment in favor of the officers in their

individual capacities on the plaintiff-appellee’s various state

law claims.

V.

The defendants-appellants argue that the CCSO is entitled

to governmental immunity on the state law claims against it.

“The existence of sovereign immunity is a question of law that

we review de novo.” S.C. Wildlife Fed’n v. Limehouse, 549 F.3d

324, 332 (4th Cir. 2008) (internal quotation marks omitted).

Under North Carolina law, “the doctrine of governmental, or

sovereign immunity[,] bars action against, inter alia, the

state, its counties, and its public officials sued in their

official capacity.” Arrington, 716 S.E.2d at 414 (N.C. Ct. App.

2011). “Suits against public officials are barred by the

doctrine of governmental immunity where the official is

performing a governmental function, such as providing police

services.” Id. (internal quotation marks omitted).

22
 Counties and their officials may waive governmental

immunity by purchasing insurance. Slade v. Vernon, 429 S.E.2d

744, 746 (N.C. Ct. App. 1993), implied overruling on other

grounds recognized in Boyd v. Robeson County, 621 S.E.2d 1 (N.C.

Ct. App. 2005). If a county purchases liability insurance, it

only waives its governmental immunity by the amount of insurance

purchased by the county. Evans v. Housing Auth. of Raleigh, 602

S.E.2d 668, 673 (N.C. 2004). But insurance policies can include

explicit exclusions of coverage for any claim that governmental

immunity would ordinarily cover.

The insurance policies purchased by the CCSO explicitly

exclude coverage for “[a]ny claim, demand, or cause of action

against any Covered Person as to which the Covered Person is

entitled to sovereign immunity or governmental immunity under

North Carolina law.” See J.A. 731, 734, 782, 794; see also J.A.

862, 1115. Thus, the county’s purchase of insurance has not

waived governmental immunity as to the state law claims against

the CCSO, and these claims fail as a matter of law.

VI.

The only remaining cause of action is the statutory bond

claim against the CCSO’s sureties under § 58-76-5 of the North

Carolina General Statutes. Section 58-76-5 provides that

[e]very person injured by the neglect, misconduct, or
misbehavior in office of any . . . sheriff . . . or
other officer, may institute a suit or suits against

23
 said officer . . . and [his] sureties upon [the]
respective bonds for the due performance of [his]
duties in office in the name of the State . . . and
every such officer and the sureties on the officer’s
official bond shall be liable to the person injured
for all acts done by said officer by virtue or under
color of that officer's office

Anderson has asserted a claim only against the sheriff’s

sureties. See J.A. 223–24.

The defendants-appellees argue that “the state tort claim[]

against . . . the Sheriff’s sureties . . . [is] based solely on

respondent [sic] superior” and “cannot be supported” because

“the individual officers are entitled to public officer’s

immunity.” Opening Br. 58. But “[b]y expressly providing for

th[e] [statutory bond] cause of action, the General Assembly has

abrogated common law immunity where a public official causes

injury through neglect, misconduct, or misbehavior in the

performance of his official duties or under color of his

office.” Smith v. Jackson County Bd. of Educ., 608 S.E.2d 399,

411-12 (2005) (internal quotation marks omitted). “Immunity is

thus immaterial with respect to a claim on a bond under N.C.

Gen.Stat. § 58–76–5.” Id.; see also Slade, 429 S.E.2d at 747.

Whether Anderson’s statutory bond claim fails on other

grounds is beyond this Court’s jurisdiction. 6 “Our exercise of

6
Although the sureties joined in the notice of appeal filed
in this case, they have not filed separate briefs explaining why
we have jurisdiction over their appeal. As we explain in the
(Continued)
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pendent appellate jurisdiction is proper only when an issue is

(1) inextricably intertwined with the decision of the lower

court to deny . . . immunity or (2) consideration of the

additional issue is necessary to ensure meaningful review of the

. . . immunity question.” Evans v. Chalmers, 703 F.3d 636, 658

(4th Cir. 2012). “Claims are ‘inextricably intertwined’ when the

resolution of one claim necessarily resolves the other claim.”

Henry v. Purnell, 501 F.3d 374, 376 (4th Cir. 2007).

Here, our review of the issues of qualified, public

officers’, and governmental immunity does not require any

evaluation of the state statutory bond claim. Accordingly, we

decline to exercise pendent appellate jurisdiction over that

claim.

VII.

For the reasons stated above, we dismiss the appeal of the

district court’s ruling as to the statutory bond claim, and

reverse the denial of summary judgment on the remaining claims.

The arresting officers are entitled to qualified immunity on the

federal claims; the derivative federal claims of supervisory and

text, we do not have, and in any event, we decline to exercise,
such jurisdiction. The sureties’ apparent reliance on Turner v.
City of Greenville, 677 S.E.2d 480 (N.C. App. 2009), and Altman
v. High Point, 330 F.3d 194 (4th Cir. 2003), is plainly
misplaced, as there was no bond claim in either of those cases.

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local government liability fail because no actionable claim can

exist without a constitutional violation committed by a

subordinate employee; public officers’ and governmental

liability shield the officers and the CCSO from Anderson’s state

law claims; and the Court lacks jurisdiction to review the

statutory bond claim against the sureties.

REVERSED IN PART,
DISMISSED IN PART,
AND REMANDED

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