Bartley v. City of High Point

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-63

No. 359A20

Filed 17 June 2022

BRUCE ALLEN BARTLEY

v.
CITY OF HIGH POINT and MATT BLACKMAN in his Official Capacity as a Police
Officer with the City of High Point, and Individually.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel

of the Court of Appeals, 272 N.C. App. 224 (2020), affirming a trial court order

partially denying defendant’s motion for summary judgment entered on 21 October

2019 by Judge Eric C. Morgan in Superior Court, Guilford County. Heard in the

Supreme Court on 23 March 2022.

The Deuterman Law Group, by Seth R. Cohen, for plaintiff-appellee.

Poyner Spruill LLP, by David L. Woodard and Brett A. Carpenter, for
defendant-appellant.

EARLS, Justice.

¶1 The sole question we consider in this appeal is whether the Court of Appeals

erred in affirming the trial court’s denial of Defendant Officer Matt Blackman’s

(Officer Blackman) motion for summary judgment with respect to Plaintiff Bruce

Bartley’s (Mr. Bartley) claims against him in his individual capacity based upon the

defense of public official immunity, concluding that genuine issues of material fact
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exist as to whether Officer Blackman acted with malice when he arrested Mr. Bartley

for unlawfully resisting, delaying, or obstructing a public officer in discharging or

attempting to discharge a public duty in violation of N.C.G.S. § 14-223. We hold that

when viewing the evidence in the light most favorable to Mr. Bartley, genuine issues

of material fact do exist as to whether Officer Blackman acted with malice in the

performance of his duties when he allegedly used excessive force in arresting Mr.

Bartley. Therefore, Officer Blackman is not entitled to summary judgment based

upon the defense of public official immunity. We affirm the Court of Appeals’

affirmance of the trial court’s order.

I. Background

¶2 Mr. Bartley was driving to his home in the afternoon on 23 August 2017 when

he crossed a double yellow line to pass the pickup truck that was traveling on Old

Mill Road directly in front of him. Mr. Bartley testified in his deposition that he

believed passing the slow-moving truck on a double yellow line was legal because the

car was traveling at a low rate of speed and impeding traffic. Officer Blackman, a

police officer with the City of High Point, testified in his deposition that he was

traveling behind Mr. Bartley in an unmarked patrol car when he observed Mr.

Bartley pass the truck over the double yellow line. Officer Blackman testified that

at that point he activated his blue strobe lights, air horn, and siren, and began

catching up to Mr. Bartley’s car. Mr. Bartley testified that he did not see anyone
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behind him when he looked in the rearview mirror, that he did not see blue lights

flashing, and that he did not hear a siren or air horn as he proceeded in the direction

of his home.

¶3 When Mr. Bartley eventually reached his driveway, he parked, got out of the

car, and walked toward the back of his car to retrieve his pet cat. At that moment, he

heard someone, whom he identified as a male dressed in plainclothes, twice order him

back inside his car. While Officer Blackman testified that he was wearing his

departmental issued handgun on his right hip, handcuffs, and an additional

ammunition magazine on his left side, that he was carrying his department issued

radio in his left hand, and that his badge was on his belt and visible from the front,

it is uncontested that Officer Blackman was not dressed in his police uniform and

that he did not immediately identify himself as a police officer when he approached

Mr. Bartley’s driveway and issued commands. Mr. Bartley testified that because he

had no reason to know that the person giving him a command was a police officer, he

thought that he had done nothing wrong, and suspected that perhaps Officer

Blackman was at the wrong address, Mr. Bartley told Officer Blackman that he was

on private property and that he was not going to get back into his car.

¶4 Officer Blackman testified that after Mr. Bartley twice ignored his

command, Officer Blackman used his hand radio to report the traffic stop to

law enforcement communications. He gave a description of his location, Mr. Bartley,
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and Mr. Bartley’s vehicle. Officer Blackman further testified that he requested

backup because he believed that there was an officer safety issue based on Mr.

Bartley’s response to his command to get back into his vehicle “in the face of a traffic

stop.” Mr. Bartley testified that when he turned his back on Officer Blackman after

telling Officer Blackman, who from Mr. Bartley’s perspective, was an unidentified

trespasser, that he was on private property and that he would not get back into his

car, “the next thing” [Mr. Bartley] knew, he was “body slammed” against the trunk

of his vehicle, handcuffed, and told he was being detained.

¶5 Mr. Bartley testified repeatedly that “[Officer Blackman] slammed me against

the back trunk lid of my vehicle and handcuffed me.” Officer Blackman testified that

he put Mr. Bartley in handcuffs because (1) Mr. Bartley ignored his commands and

told him that he was on private property, which Officer Blackman believed to create

a safety issue because he had no way of knowing Mr. Bartley’s intentions, and (2)

Officer Blackman believed that Mr. Bartley’s refusal to comply with Officer

Blackman’s commands to get back in the car constituted probable cause to charge Mr.

Bartley with resisting, delaying, or obstructing a public officer. Officer Blackman

denied that he body slammed and tightly handcuffed Mr. Bartley when he carried out

the arrest.

¶6 Mr. Bartley testified that following his arrest, he remained in handcuffs in his

driveway in full view of his neighbors for 20–25 minutes even after he was patted
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down by Officer Blackman and even though a backup officer had been called to the

scene. Mr. Bartley further stated that he asked Officer Blackman to loosen the

handcuffs because they were too tight and were hurting his wrists, but Officer

Blackman refused and insisted that if Mr. Bartley had done as he was initially told,

then he would not have been in this situation. Mr. Bartley claims that the forcefully

applied handcuffs left red marks and bruises on his wrists, which he photographed

on the day of the incident.

¶7 Mr. Bartley was charged with violating N.C.G.S. § 14-233 (resisting, delaying,

and obstructing a public officer) for exiting his vehicle and refusing to obey

commands.1 He also was cited for passing another vehicle in a prohibited passing

zone over a double yellow line pursuant to N.C.G.S. § 20-146(a). Mr. Bartley hired an

attorney who advised him to take a driving class and complete twenty hours of

community service, both of which he did. It is uncontested that the charges against

Mr. Bartley were dismissed.

¶8 On 20 December 2018, Mr. Bartley filed a civil suit against Officer Blackman,

in both his official and individual capacities; and against the City of High Point; for

malicious prosecution, false imprisonment/arrest, and assault and battery.

1 The dissent asserts that “[i]t is undisputed that Officer Blackman had probable cause
to arrest Bartley.” 2022-NCSC-63, ¶ 46. However, that is disputed. Among his other claims,
Mr. Bartley sued Officer Blackman for false arrest whereby he challenges the lawfulness of
his detainment. The issue of whether Officer Blackman had probable cause to arrest Mr.
Bartley for violating N.C.G.S. § 14-223 is not before us.
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Defendants answered the complaint on 25 January 2019, asserting the defenses of

governmental and public official immunity, among others. In his complaint, Mr.

Bartley alleged that he was forcibly thrown against the trunk of his car, handcuffed,

and charged with resisting an officer in the driveway of his residence after passing a

slow-moving vehicle on Old Mill Road and being followed by Officer Blackman, a

plain-clothes High Point police detective driving an unmarked vehicle.

¶9 On 19 September 2019, defendants filed a general motion for summary

judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure on the

grounds that there was no genuine issue as to any material fact and that defendants

were entitled to judgment as a matter of law. On 21 October 2019, the trial court

dismissed with prejudice Mr. Bartley’s claims against the City of High Point and

Officer Blackman in his official capacity on the ground that sovereign immunity

barred those claims. The trial court denied defendants’ summary judgment motion

as to the claims against Officer Blackman in his individual capacity “finding that

there are genuine issues of material fact as to these claims that preclude summary

judgment as a matter of law.” Officer Blackman appealed from the order partially

denying his motion for summary judgment as to the claims against him in his

individual capacity.

II. Court of Appeals Opinion

¶ 10 On appeal, Officer Blackman argued that the trial court erred in denying his
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motion for summary judgment based upon the defense of public official immunity. He

also asked the Court of Appeals to address the merits of the claims against him. On

7 July 2020, a divided panel of the Court of Appeals affirmed the trial court’s order,

concluding that Officer Blackman was not entitled to summary judgment on

the ground of public official immunity, and declined to reach the merits of the

underlying claims because Officer Blackman had no right to interlocutory review on

the other issues he sought to raise. Bartley v. City of High Point, 272 N.C. App. 224

(2020). The court explained that “[p]olice officers engaged in performing their duties

are public officials for the purposes of public official immunity [and] enjoy absolute

immunity from personal liability for discretionary acts done without corruption or

malice.” Id. at 227–28 (cleaned up). The court noted that a police officer is therefore

generally “immune from suit unless the challenged action was (1) outside the scope

of official authority, (2) done with malice, or (3) corrupt,” id. at 228, and ultimately

concluded that the facts of this case as alleged with respect to each claim were

sufficient to raise an issue of genuine material fact as to whether Officer Blackman

acted with malice.

¶ 11 In dissent, Judge Tyson concluded that Mr. Bartley “did not carry his ‘heavy

burden’ to survive Officer Blackman’s motion for summary judgment on the issue of

his individual liability under public official immunity.” Id. at 239–40 (Tyson, J.,

dissenting). Judge Tyson reasoned that some of Mr. Bartley’s admissions about a
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civilian’s right to ignore an officer’s directives during an investigatory stop and his

general admissions about some of his alleged movements during the encounter were

“sufficient to defeat [his] claims.” Id. at 237. The dissent further opined that Mr.

Bartley had “not met his ‘heavy burden’ ‘to produce a forecast of evidence

demonstrating specific facts, as opposed to allegations, showing that he can at

least establish a prima facie case at trial.’ ” Id. (quoting Leete v. Cnty. Of Warren, 341

N.C. 116, 119 (1995); Draughon v. Harnett Cnty. Bd. of Educ., 158 N.C. App. 208, 212

(2003)). In Judge Tyson’s view, the majority’s opinion misapplied the standard of

review and purported to shift the “heavy burden” Mr. Bartley must carry to prevail

in this context. Id. Judge Tyson concluded that “[no] genuine issues of material fact

exist in the pleadings, depositions, and affidavits served and entered in this matter

to overcome defendant’s motions and to deny summary judgment,” and that the trial

court’s ruling should have therefore been reversed and remanded for entry of

summary judgment in favor of Officer Blackman. Id. at 240.

¶ 12 Officer Blackman appealed the Court of Appeals’ decision to this Court as a

matter of right based on Judge Tyson’s dissent.

III. Standard of Review

¶ 13 Summary judgment is proper only “if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is
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entitled to judgment as a matter of law.” N.C.G.S. § 1A-1, N.C. R. Civ. P. 56(c); see

also Singleton v. Stewart, 280 N.C. 460, 464–65 (1972). “An issue is genuine if it ‘may

be maintained by substantial evidence.’ ” City of Thomasville v. Lease-Afex, Inc.,

300 N.C. 651, 654 (1980) (quoting Koontz v. City of Winston-Salem, 280 N.C. 518, 518

(1972)). Substantial evidence is that amount of relevant evidence necessary to

persuade a rational juror to accept a conclusion. State v. Mann, 355 N.C. 294, 301

(2002). An issue is material if, as alleged, facts “would constitute a legal defense, or

would affect the result of the action or if its resolution would prevent the party against

whom it is resolved from prevailing in the action.” Koontz, 280 N.C. at 518. When

examining a summary judgment motion, “‘all inferences of fact . . . must be drawn

against the movant and in favor of the party opposing the motion.”’ Caldwell v. Deese,

288 N.C. 375, 378 (1975) (quoting 6 James Wm. Moore, Moore's Federal Practice §

56.15[3], at 2337 (2d ed. 1971)).2 This standard requires us to refrain from weighing

the evidence or making credibility determinations. Howerton v. Arai Helmet, Ltd. 358

N.C. 440, 471 (2004) (explaining that when reviewing a motion for summary

2 The dissent’s statement of the proper standard at summary judgment fails to
acknowledge this principle of black letter law and disregards it. It may be true that “[i]t is a
difficult time to be in law enforcement” but our task here is not to weigh the competing
deposition testimony, decide whose version of the events is correct, substitute our judgment
for that of a jury, give preferential consideration to law enforcement officers, or provide them
absolute immunity from any liability no matter what they do. At this stage, the question is
whether the evidence, taken in the light most favorable to the non-moving party, creates a
disputed issue of material fact related to public official immunity. See, e.g., Ussery v. Branch
Banking and Trust Co., 368 N.C. 325, 334 (2015) (facts must be viewed in light most favorable
to the non-moving party on motion for summary judgment).
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judgment, it is not the function of the court to weigh conflicting record evidence and

that issues “legitimately called into question” should be preserved for resolution by a

jury); see also Hensley ex rel. North Carolina v. Price, 876 F.3d 573, 584 (4th Cir. 2017)

(observing that in the summary judgment posture, courts must not credit defendant’s

evidence, weigh the evidence, or resolve factual disputes in the defendants’ favor).

¶ 14 We review a trial court's order granting or denying summary judgment de

novo. Craig v. New Hanover Cnty. Bd. of Educ, 363 N.C. 334, 337 (2009). “Under a de

novo review, the court considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” Id. (cleaned up).

IV. Analysis
A. Jurisdiction

¶ 15 Officer Blackman appeals from the trial court’s order partially denying

summary judgment on Mr. Bartley’s claims against him in his individual capacity.

Accordingly, we first address the threshold issue of the reviewability of an order

denying Officer Blackman’s motion for summary judgment.

¶ 16 Ordinarily, the denial of a summary judgment motion is not immediately

appealable as an interlocutory order. See Veazey v. City of Durham, 231 N.C. 354, 357

(1950). An interlocutory order is one made during the pendency of an action, which

does not dispose of the case, but leaves it for further action by the trial court to settle

and determine the entire controversy. Id. An immediate appeal does not lie to this

Court from an interlocutory order unless it concerns a judicial decision affecting a
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substantial right claimed in the action or proceeding by the appellant. Id. The

“substantial right” test for appealability asks whether the challenged order “will work

injury to appellant if not corrected before appeal from final judgment.” Stanback v.

Stanback, 287 N.C. 448, 453 (1975); see also N.C.G.S. § 1-277.

¶ 17 The denial of summary judgment on the ground of public official immunity is

immediately appealable because it affects a substantial right. Public official

immunity is more than a mere affirmative defense to liability as it shields a defendant

entirely from having to answer for his conduct in a civil suit for damages. See

Thompson v. Town of Dallas, 142 N.C. App. 651, 653 (2001) (quoting Epps v. Duke

University, Inc., 122 N.C. App. 198, 201 (1996)) (explaining that an interlocutory

appeal of an order denying a dispositive motion is allowed because “the essence

of absolute immunity is its possessor’s entitlement not to have to answer for his

conduct in a civil damages action.’’), disc. review denied, 344 N.C. 436 (1996)); see also

Summey v. Barker, 142 N.C. App. 688, 689 (2001); Leonard v. Bell, 254 N.C. App.

694, 697 (2017). If the trial court erroneously precludes a valid claim of public

official immunity and the case proceeds to trial, immunity from trial would be

effectively lost. Corum v. Univ. of North Carolina, 97 N.C. App. 527, 532 (1990) (citing

Mitchell v. Forsyth, 472 U.S. 511, 525 (1985)), rev’d in part on other grounds, 330 N.C.

761 (1992).

¶ 18 Unquestionably, the trial court’s order denying Officer Blackman’s motion for
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summary judgment is interlocutory; it does not dispose of the action against him and

leaves matters to be judicially determined between the parties which requires further

action by the trial court. However, Officer Blackman asserts a claim of public official

immunity, an immunity from suit that would be compromised if he were required to

go to trial. Therefore, this interlocutory appeal of the denial of summary judgment on

that issue is properly before this Court.

B. Public Official Immunity

¶ 19 Public official immunity, a judicially-created doctrine, is “a derivative form” of

governmental immunity which shields public officials from personal liability for

claims arising from discretionary acts or acts constituting mere negligence, by virtue

of their office, and within the scope of their governmental duties. Since the early

twentieth century, the chief function of public official immunity has long been

understood to shield public officials from tort liability when those officials truly

perform discretionary acts that do not exceed the scope of their official duties. See

generally Hipp v. Ferrall, 173 N.C. 167 (1917); Templeton v. Beard, 159 N.C. 63

(1912). The immunity has been recognized in furtherance of two primary goals. First,

it promotes the “fearless, vigorous, and effective administration” of government

policies. Pangburn v. Saad, 73 N.C. App. 336, 344 (1985). It is presumed that in the

absence of the immunity, liability concerns rather than the public interest may drive

the actions of some public officials. Second, it mitigates the negative impact that
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trepidation about personal liability might otherwise have on the willingness of

individuals to assume public office. Id. (observing that, without public official

immunity, the “threat of suit could . . . deter competent people from taking office”).

See also Isenhour v. Hutto, 350 N.C. 601, 610 (1999) (“Public officials receive

immunity because it would be difficult to find those who would accept public office or

engage in the administration of public affairs if they were to be personally liable for

acts or omissions involved in exercising their discretion.” (cleaned up).

¶ 20 Public official immunity has therefore never been extended to an official who,

clothed with discretion, commits acts that are at odds with the protections afforded

by the doctrine and which underlie its utility. An individual will not enjoy the

immunity’s protections if his action “was (1) outside the scope of official authority, (2)

done with malice, or (3) corrupt.” Wilcox v. City of Asheville, 222 N.C. App. 285, 230

(2012) (citing Smith v. State, 289 N.C. 303, 331 (1976)), disc. review denied and appeal

dismissed, 366 N.C. 574 (2013). Generally, public officials have been recognized as

individuals who occupy offices created by statute, take an oath of office, and exercise

discretion in the performance of their duties. Pigott v. City of Wilmington, 50 N.C.

App. 401, 403–04 (1981); Gunter v. Anders, 114 N.C. App. 61, 67 (1994). North

Carolina courts have deemed police officers engaged in performance of their duties as

public officials for the purposes of public official immunity: “a police officer is a public

official who enjoys absolute immunity from personal liability for discretionary acts
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done without corruption or malice.” Campbell v. Anderson, 156 N.C. App. 371, 376

(2003).

¶ 21 Our precedent instructs that “[i]t is well settled that absent evidence to the

contrary, it will always be presumed ‘that public officials will discharge their duties

in good faith and exercise their powers in accord with the spirit and purpose of the

law.’ ” Leete v. Cty. of Warren, 341 N.C. 116, 119 (1995) (emphasis added) (quoting

Huntley v. Potter, 255 N.C. 619, 628 (1961)). This Court has never regarded the

presumption of good faith that attends a public officer’s actions as conclusive. When

read in its full context, this language creates a rebuttable presumption that loses its

force when a party produces competent and substantial evidence that an officer failed

to discharge his duties in good faith. Id., 341 N.C. at 119 (plaintiffs have met their

burden to overcome this presumption).

¶ 22 Significantly, our courts have recognized public official immunity as an

affirmative defense that must be properly asserted by the defendant to receive its

protection. See generally Fullwood v. Barnes, 250 N.C. App. 31 (2016); Mabrey v.

Smith, 144 N.C. App. 119 (2001). In other words, the defendant must assert official

immunity as an affirmative defense because

[a]s to such defenses, he is the actor, and hence he must
establish his allegations in such matters by the same
degree of proof as would be required if he were plaintiff in
an independent action. This is not a shifting of the burden
of proof; it simply means that each party must establish his
own case.
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Speas v. Merchants’ Bank & Trust Co. of Winston-Salem, 188 N.C. 524, 531 (1924)

(citations omitted); see also, 1 Kenneth S. Broun, Brandis and Broun on North

Carolina Evidence § 32 n. 29, at 120 (4th ed. 1993). If the defendant cannot meet this

burden of production, “he is not entitled to protection on account of his office, but is

liable for his acts like any private individual.” Gurganious v. Simpson, 213 N.C. 613,

616 (1938).

C. Public Official Immunity Applied in this Case

¶ 23 To survive a motion for summary judgment based on public official immunity,

a plaintiff must make a prima facie showing that the defendant-official’s tortious

conduct falls within one of the immunity exceptions. Dempsey v. Halford, 183 N.C.

App. 637, 640–41 (2007). A tortious act that is malicious thus pierces the cloak of

official immunity that would otherwise bar suit and liability for the tortious act. Fox

v. City of Greensboro, 279 N.C. App. 301, 2021-NCCOA-489, ¶ 51 (2021). This Court

has held that “[a] defendant acts with malice when he wantonly does that which a

man of reasonable intelligence would know to be contrary to his duty and which he

intends to be prejudicial or injurious to another.” In re Grad v. Kaasa, 312 N.C. 310,

313 (1984). Elementally, a malicious act is one which is “(1) done wantonly, (2)

contrary to the actor’s duty, and (3) intended to be injurious to another.” Wilcox, 222

N.C. App. at 289. “An act is wanton when it is done of wicked purpose or when done

needlessly, manifesting a reckless indifference to the rights of others.” Yancey v. Lea,
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354 N.C. 48, 52 (2001). “Gross violations of generally accepted police practice and

custom” contributes to the finding that officers acted contrary to their duty. Prior v.

Pruett, 143 N.C. App. 612, 623–24 (2001), disc. review denied, 355 N.C. 493 (2002).

¶ 24 We have held that “the intention to inflict injury may be constructive” intent

where an individual's conduct “is so reckless or so manifestly indifferent to the

consequences, where the safety of life or limb is involved, as to justify a finding of

willfulness and wantonness equivalent in spirit to an actual intent.” Foster v.

Hyman, 197 N.C. 189, 192 (1929). In the context of intentional tort claims, including

assault and battery, “[w]anton and reckless behavior may be equated with an

intentional act.” Pleasant v. Johnson, 312 N.C. 710, 715 (1985), and “evidence of

constructive intent to injure may be allowed to support the malice exception to

[public official] immunity.” Wilcox, 222 N.C. App. at 291.

¶ 25 Mr. Bartley claims that Officer Blackman acted with malice by body slamming

him against the trunk of his car and tightly handcuffing him without justification.

Thus, we decide whether, viewed in the light most favorable to Mr. Bartley, the

evidence raises a genuine issue of material fact concerning whether Officer Blackman

acted with malice; that is, whether his actions were wanton, contrary to his duty, and

intended to injure Mr. Bartley. We hold that the evidence in this case does raise an

issue of material fact with respect to this question.

¶ 26 At common law, a “law enforcement officer has the right, in making an arrest
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and securing control of an offender, to use only such force as may be reasonably

necessary to overcome any resistance and properly discharge his duties.” Lopp v.

Anderson, 251 N.C. App. 161, 172 (2016). While an officer is vested with such a right,

“[a police officer] may not act maliciously in the wanton abuse of his authority or use

unnecessary and excessive force.” Myrick v. Cooley, 91 N.C. App. 209, 215 (1988). In

similar fashion, our General Statutes dictate that a law enforcement officer is

justified in using force upon an individual when and to the extent that the officer

reasonably believes it necessary to prevent escape from custody or to effect an arrest

of an individual who the officer reasonably believes has committed a criminal offense,

unless the officer knows the arrest is unauthorized. See N.C.G.S. § 15A-401(d).

Accordingly, a civil action for damages for assault and battery is available at

common law against one who, for the accomplishment of a legitimate purpose, such

as justifiable arrest, uses force which is excessive under the given circumstances.

Lopp, 251 N.C. App. at 172(2016) (quoting Myrick, 91 N.C. App. at 215).

¶ 27 Mr. Bartley testified that Officer Blackman approached him from behind and

“body slammed” him against the trunk of his car. Officer Blackman acknowledged

during his deposition that Mr. Bartley did not resist arrest, verbally or physically

threaten him, or try to evade the arrest before he placed Mr. Bartley in handcuffs. It

is also undisputed that Mr. Bartley was unarmed during the encounter. Officer

Blackman’s actions in these circumstances, as described by Mr. Bartley, using a body
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slam maneuver to subdue an unarmed, nonresistant individual who posed no threat

to him is evidence of malice.

¶ 28 Additional evidence of malice comes from Mr. Bartley’s testimony about how

tightly Officer Blackman handcuffed him, Officer Blackman’s refusal to loosen the

handcuffs, and the red marks and bruises that Mr. Bartley sustained to his wrist as

a result. Furthermore, Mr. Bartley testified that Officer Blackman stated that if Mr.

Bartley had done as he was initially told, he would not be in the situation that

he was in, and that Mr. Bartley remained handcuffed for at least twenty minutes in

front of neighbors, which is evidence of retaliation.

¶ 29 Cases from the federal courts are instructive on the question of whether tight

handcuffing resulting in physical injury indeed constitutes excessive force and

therefore some evidence of malice. The Third Circuit and the Sixth Circuit have

affirmatively recognized the general proposition that excessively tight or forceful

handcuffing, particularly handcuffing that results in physical injury, constitutes

excessive force. See, e.g., Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004) (recognizing

excessively tight handcuffing constitutes excessive force), cert denied, 543 U.S. 956

(2004); Martin v. Hiedeman, 106 F.3d 1308, 1313 (6th Cir. 1997) (construing

“excessively forceful handcuffing” as an excessive force claim).

¶ 30 The Sixth Circuit articulated its test for evaluating whether a handcuffing

claim may survive summary judgment in Morrison v. Bd. Of Trs., 583 F.3d 394, 401-
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02 (6th Cir. 2009). To state such a claim, a plaintiff must offer sufficient evidence to

create a genuine issue of material fact that: (1) the plaintiff complained the handcuffs

were too tight; (2) the officer ignored those complaints; and (3) the plaintiff

experienced “some physical injury” resulting from the handcuffing. Id. See also

McGrew v. Duncan, 937 F.3d 664, 668 (6th Cir. 2019) (holding that allegations of

bruising and wrist marks create a genuine issue of material fact regarding whether

an officer violated plaintiff’s right to be free from excessive force). Cf. Brissett v. Paul,

No. 97-6898, 1998 WL 195945, at *4–5 (4th Cir. 1998) (unpublished) (affirming the

district court’s decision that a police officer did not use excessive force because

plaintiff did not offer evidence that he sustained any physical injury from being

handcuffed and arms being held in painful position).

¶ 31 Mr. Bartley’s evidence establishes that he complained of his discomfort, and

Officer Blackman refused to heed his complaints and loosen the handcuffs. To be sure,

Officer Blackman’s testimony offers an entirely different description of the material

facts. He testified that he effectuated Mr. Bartley’s arrest by “merely plac[ing] one

hand on [Mr. Bartley’s] “wrist” and his other hand on [Mr. Bartley’s] “[u]pper back,”

and leaning Mr. Bartley over the trunk lid of his car so that he was “[b]ending at the

waist.” Officer Blackman further testified that he “took [Mr. Bartley] by the left arm

and went to extend his arm and then to put it behind his back.” Officer Blackman

also insisted that when Mr. Bartley refused his multiple orders to get back in his
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Opinion of the Court

vehicle, he was authorized to place Mr. Bartley in handcuffs to protect his safety and

carry out the traffic stop. He emphasized in his testimony that his use of handcuffs

“remained the least intrusive means reasonably necessary to carry out the purpose

of the stop.” Officer Blackman’s testimony certainly creates a disputed issue of

material fact; however, it is not the version of events that is determinative on

summary judgment, where the question before us is whether the evidence in the light

most favorable to the non-moving party is sufficient to establish malice that defeats

a claim of public official immunity.

¶ 32 N.C.G.S. § 15A-401(d), as does the common law, prescribes that police officers

have a duty to use only the force that is reasonably necessary in detaining an

individual. The use of unreasonable, unnecessary, and excessive force is prohibited

by law. Considering the facts in the light most favorable to Mr. Bartley, as we must,

there is a panoply of evidence which establishes that a genuine issue of material fact

exists as to whether Officer Blackman’s allegedly forcible tactics were contrary to his

duty for purposes of establishing the first element of malice.3 Furthermore, Officer

Blackman’s alleged statement to Mr. Bartley that he would not have been “in this

3 The dissent states that “Officer Blackman had probable cause to arrest Bartley.”
2022-NCSC-63, ¶ 45. Whether there was probable cause for an arrest is disputed, and it is
also not determinative on the question of public official immunity. Where, as here, a plaintiff
comes forward with evidence that an officer used excessive force to execute an otherwise valid
arrest, such evidence may be sufficient to establish a genuine dispute of material fact
concerning whether the officer acted wantonly or contrary to his duty within the meaning of
the malice exception to public official immunity.
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Opinion of the Court

situation” had Mr. Bartley obeyed commands from Officer Blackman raises questions

that can only be resolved by a jury. For example, is “this situation” that Officer

Blackman referenced the situation of having just been body slammed and thrown into

the trunk of a car, tightly handcuffed and bruised, and humiliated in front of

neighbors following the commission of a traffic infraction? This statement creates a

genuine issue of material fact concerning whether Officer Blackman’s allegedly

gratuitous tactics manifested a reckless indifference to Mr. Bartley’s rights and were

so reckless or manifestly indifferent to the consequences, where the safety of life

and limb are involved, as opposed to being necessary for officer safety as Officer

Blackman insists. See Wilcox, 222 N.C. App. at 291-92. Such a question is a factual

one that is typically reserved for a jury. See, e.g., State v. McCombs, 297 N.C. 151,

156 (1979); Leiber v. Arboretum Joint Venture, LLC, 208 N.C. App. 336, 348 (2010).

Mr. Bartley has presented sufficient evidence of malice to create a disputed issue of

material fact that prevents summary judgment on the ground of public official

immunity.

V. Conclusion

¶ 33 To establish that Officer Blackman is not entitled to the defense of public

official immunity, and thus to defeat his motion for summary judgment, Mr. Bartley

produced evidence that Officer Blackman acted with malice when he arrested him.

Viewing the facts that Mr. Bartley has proffered in support of his claim in the light
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Opinion of the Court

most favorable to him, we conclude that there is a genuine issue of material fact as

to whether Officer Blackman acted with malice in carrying out his official duties.

¶ 34 The purpose of summary judgment is to dispose of claims in which there are

no disputed issues as to any material facts such that “only questions of law are

involved and a fatal weakness in the claim of a party is exposed.” Dalton v. Camp,

353 N.C. 647, 650 (2001). Attempts to make credibility determinations or to resolve

disputed versions of events in the course of prematurely disposing of this case serves

only to confuse the role of a judge and a jury. Crocker v. Roethling, 363 N.C. 140, 142–

43 (2009) (instructing that it is error for the trial court to enter summary judgment

for defendant when the evidence forecast by plaintiff established a genuine issue of

material fact to be properly decided by a jury). We therefore hold that the Court of

Appeals did not err in affirming the trial court’s order partially denying Officer

Blackman’s summary judgment motion on the basis of public official immunity.

AFFIRMED.
 Justice BERGER dissenting.

¶ 35 It is a difficult time to be in law enforcement. The majority today makes it

even more challenging by expanding exposure to personal liability for increasingly

common encounters with recalcitrant members of our society. Because the majority

effectively eliminates public official immunity for law enforcement officers in North

Carolina, I respectfully dissent.

¶ 36 On August 23, 2017, at approximately 3:17 pm, Officer Blackman––at the time

an eight-year veteran of the High Point Police Department––was driving in his

unmarked patrol car on routine patrol. At the time, Officer Blackman was wearing

his department “issued handgun on [his] right side, [his] departmental issued badge

on [the front of his] belt, [and his] handcuffs and additional magazine on [his] left

side.” Officer Blackman observed a 2017 Mercedes pass a truck “on the left over the

double yellow line.” The vehicle was operated by Bruce Allen Bartley, a 5’7” white

male. Officer Blackman testified that he viewed Bartley’s moving violation of passing

the truck on the left over a double line as serious and as dangerous as the other

violations he has observed and cited.

¶ 37 Officer Blackman attempted to initiate a traffic stop of Bartley’s vehicle,

however due to oncoming traffic and an upcoming curve, Officer Blackman could not

immediately and safely pass the truck in front of him to catch up to Bartley. As he

overtook the truck, Officer Blackman activated his lights and siren and began
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catching up with Bartley’s vehicle to make the traffic stop. Bartley turned onto Yates

Mill Court, and Officer Blackman testified that he “was concerned that [Bartley] was

aware [Officer Blackman] was behind him and [he] was attempting to make it to the

– a house.”

¶ 38 Bartley pulled into the driveway at 1860 Yates Mill Court and Officer

Blackman pulled in behind Bartley. Officer Blackman left his blue strobe lights on,

but “as [he] was nearing the back of [Bartley’s] car,” he turned off his siren. Bartley

got out of his vehicle and was “[h]eading towards the back” [of the vehicle] when he

saw Officer Blackman. Officer Blackman got out of his vehicle and ordered Bartley

back into the Mercedes. Bartley looked directly at Officer Blackman and ignored the

order.

¶ 39 Bartley testified at a deposition that, in total, Officer Blackman told him to get

back in the car “[t]wice.” Bartley’s response was, “[I] told him I was on private

property” and “I was not getting back in the car”

¶ 40 Officer Blackman testified at his deposition that he “believed that there was

an officer safety issue based on [Bartley] exiting the vehicle, approaching [Officer

Blackman], [and] saying he’s on private property in the face of a traffic stop.” Officer

Blackman testified “ultimately we got within arms reach of [each] other.” Because of

Bartley’s actions, Officer Blackman believed that handcuffing Bartley “was the safest

for both of [them].” At that point, Officer Blackman had no way of knowing what
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Berger, J., dissenting

Bartley’s intentions were toward him or toward any other aspect of the traffic stop.

Officer Blackman told Bartley he was being detained, and Bartley admitted that

Officer Blackman placed one hand on his wrist and the other on Bartley’s upper back.

Bartley was “leaning over the vehicle . . . [b]ending at the waist,” when Officer

Blackman went to handcuff him. Officer Blackman “took [Bartley] by the left arm

and went to extend [Bartley’s] arm and then put it behind [Bartley’s] back, and as

[Officer Blackman] did that, [Bartley’s] left arm tensed up and lifted up in a form of

resistance.” At this point, Officer Blackman had probable cause to arrest Bartley for

resisting a public officer pursuant to N.C.G.S. §14-223.

¶ 41 According to Bartley, he was in that position for “seconds” while Officer

Blackman put on the handcuffs. When asked whether Bartley felt any contact with

Officer Blackman’s body, Bartley responded, “[j]ust his hands.”

¶ 42 Summary judgment is “a device to bring litigation to an early decision on the

merits without the delay and expense of a trial where it can be readily demonstrated

that no material facts are in issue.” Kessing v. Nat’l Mortg. Corp., 278 N.C. 523, 533,

180 S.E.2d 823, 829 (1971).

The purpose of summary judgment is to eliminate formal
trials where only questions of law are involved by
permitting penetration of an unfounded claim or defense in
advance of trial and allowing summary disposition for
either party when a fatal weakness in the claim or defense
is exposed. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379
(1975). “The device used is one whereby a party may in
effect force his opponent to produce a forecast of evidence
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which he has available for presentation at trial to support
his claim or defense. A party forces his opponent to give
this forecast by moving for summary judgment. Moving
involves giving a forecast of his own which is sufficient, if
considered alone, to compel a verdict or finding in his favor
on the claim or defense. In order to compel the opponent’s
forecast, the movant’s forecast, considered alone, must be
such as to establish his right to judgment as a matter of
law.” 2 McIntosh, N. C. Practice and Procedure, s 1660.5
(2d ed. Phillips Supp.1970).

Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979).

Summary judgment is appropriate “where a claim or defense is utterly baseless in

fact, [or] where only a question of law on the indisputable facts is in controversy and

it can be appropriately decided without full exposure of trial.” Kessing, 278 N.C. at

533, 180 S.E.2d at 829. “[N]o matter how material a fact may be to the determination

of an issue in a case, if it is patently false or its existence defies all common sense and

reason, it is not genuine.” G. Gray Wilson, North Carolina Civil Procedure § 56-4 (3d

ed. 2007).

¶ 43 This Court has held that public officials are entitled to a presumption that they

will “discharge their duties in good faith and exercise their powers in accord with the

spirit and purpose of the law.” Leete v. Cty. of Warren, 341 N.C. 116, 119, 462 S.E.2d

476, 478 (1995). The party challenging the validity of a public officials’ actions bears

a heavy burden; competent and substantial evidence is required to defeat this

presumption. Id. For purposes of public official immunity, law enforcement officers

engaged in the performance of their duties are public officials protected from liability
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Berger, J., dissenting

“for mere negligence.” See Smith v. State, 289 N.C. 303, 331, 222 S.E.2d 412, 430

(1976). It is uncontroverted that Officer Blackman was performing his duties as a

law enforcement officer when he initiated the traffic stop that led to Bartley’s arrest.

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. 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. An act is wanton
when it is done of wicked purpose, or when done needlessly,
manifesting a reckless indifference to the rights of others.

Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890–91 (1984) (cleaned up).

¶ 44 As such, the burden now rests with plaintiff to show that Blackman acted with

malice to overcome the presumption, and the trial court must decide “whether

plaintiff sufficiently forecasted evidence for each element of malice.” Brown v. Town

of Chapel Hill, 233 N.C. App., 257, 265, 756 S.E.2d 749, 755. Bartley has failed to

make such a forecast of the evidence, and Officer Blackman is entitled to summary

judgment because there is no genuine issue of material fact.

¶ 45 Officer Blackman had probable cause to arrest Bartley. Bartley committed a

traffic infraction by crossing over a double yellow line to pass another vehicle, did not

immediately pull over when Officer Blackman initiated his siren and strobe light, and

resisted arrest after Officer Blackman had issued multiple commands which Bartley

acknowledged he heard. Bartley admitted that refusing to obey a police officer’s
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command is unlawful and acknowledged that he could understand Officer

Blackman’s perspective in arresting Bartley.

¶ 46 The majority holds that genuine issues of material fact exist as to whether

Officer Blackman acted with malice in performance of his duties when he allegedly

used excessive force in arresting Bartley. Specifically, the majority focuses on

Bartley’s deposition testimony in which he alleged that Officer Blackman approached

him from behind and “body slammed” him against the trunk of his car. The term

“body slam” was used just once by Mr. Bartley in his deposition and twice in a written

statement Bartley prepared for his own benefit. Bartley’s testimony regarding

Officer Blackman’s specific actions is wholly inconsistent with the definition of the

term “body slam.” Merriam-Webster defines body slam as “a wrestling throw in

which the opponent’s body is lifted and brought down hard to the mat.” Body-Slam,

Merriam-Webster Dictionary (11th ed. 2003); see also, Body Slam,

https://www.dictionary.com/browse/body-slam (accessed June 7, 2022). While

Bartley’s single reference in his deposition to being body slammed may not be

patently false, it appears to be baseless in fact in that it runs counter to his step-by-

step testimony of Officer Blackman’s actions. According to Bartley, Officer Blackman

had one hand on Bartley’s wrist and the other on Bartley’s upper back. It defies

common sense that from this position Officer Blackman lifted Bartley’s body off the

ground and then hurled him onto the trunk of Bartley’s vehicle, without any other
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Berger, J., dissenting

part of Officer Blackman’s body making contact with Bartley. In addition, Bartley

testified that he suffered no harm, perceived, or otherwise, from Officer Blackman

placing him on the trunk of his vehicle. The only purported harm that Bartley

experienced during the entire encounter was related to the tightness of the handcuffs,

not due to a body slam. It is undisputed that Officer Blackman had probable cause

to arrest Bartley, and Officer Blackman was not acting contrary to his duty when he

detained and handcuffed Bartley.

¶ 47 Bartley was also required to produce “competent and substantial evidence”

that Officer Blackman possessed an intent to injure. To establish an intent to injure,

“the plaintiff must show at least that the officer’s actions were so reckless or so

manifestly indifferent to the consequences as to justify a finding of willfulness and

wantonness equivalent in spirit to an actual intent.” Brown, 233 N.C. App. at 269,

756 S.E.2d at 758 (cleaned up). The majority relies on Bartley’s testimony concerning

how tightly Officer Blackman handcuffed him, Officer Blackman’s refusal to loosen

the handcuffs, and the red marks and bruises that Bartley sustained to his wrist in

finding that Officer Blackman’s use of force was done with an intent to injure.

¶ 48 The majority cites federal cases from the Third and Sixth Circuits recognizing

the general proposition that excessively tight or forceful handcuffing, particularly

handcuffing that results in physical injury, constitutes excessive force. Fourth

Circuit cases tend to support the opposite conclusion. For example, in Carter v.
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Berger, J., dissenting

Morris, the Fourth Circuit held that the plaintiff’s allegation that her handcuffs were

too tight would not support an excessive force claim. 164 F.3d 215, 219 n.3 (4th Cir.

1999). Additionally, in Cooper v. City of Virginia Beach, the Fourth Circuit affirmed

an award of qualified immunity at the summary judgment stage in an excessive force

claim based on unduly tight handcuffing. 817 F. Supp. 1310, 1319 (E.D. Va. 1993),

aff’d, 21 F.3d 421 (4th Cir. 1994). In Cooper, the record indicated that the plaintiff

was allegedly handcuffed so tightly that his hands grew numb. Id. The court found

the excessive force claim deficient because the plaintiff failed to offer sufficient

evidence of actual injury. Id. Notably, the court also stressed that the handcuffing

in and of itself was not unreasonable, particularly in light of the plaintiff’s apparent

intoxication. Id.

¶ 49 Officer Blackman testified that Mr. Bartley’s behavior was threatening and

alarming, and Officer Blackman felt like he was in danger and believed that

handcuffing Mr. Bartley “was the safest for both of [them].” Bartley alleged he

suffered some purported redness to his wrists from the tightness of the handcuffs.

One must strain to observe the purported injury in the exhibits contained in the

record. Nonetheless, Bartley admitted he received no medical treatment and had no

sensitivity, strange feeling, nerve damage, tingling, or lack of use of his wrists.

Bartley could not even remember if the alleged redness on his wrists lasted until the

next day.
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Berger, J., dissenting

¶ 50 Finally, as evidence of actual intent, the majority cites Bartley’s testimony that

Officer Blackman made the comment that if Bartley had done as he was instructed,

he would not be in “this situation.” The majority also cites the fact that Mr. Bartley

remained handcuffed for at least twenty minutes in front of neighbors as evidence of

retaliation.

¶ 51 This is not the “competent and substantial evidence” that plaintiff needs to

overcome his heavy burden. Officers routinely make remarks to inform individuals

why they have been placed into handcuffs or in the patrol vehicle. An officer acting

in accordance with his training would attempt to deescalate the situation by

explaining to an individual who refused to follow commands that his or her actions

are the reason for their situation. It certainly is an accurate statement that had

Bartley simply complied with the officer’s instructions he would not have been

handcuffed and arrested. At any rate, this statement is not evidence of “retaliation”

and it is not sufficient for plaintiff to overcome his heavy burden.1

¶ 52 Bartley has not produced “competent and substantial evidence” necessary to

carry his “heavy burden” to forecast specific facts constituting malice, and Officer

Blackman is entitled to judgment as a matter of law. To hold otherwise would

1 It is also worth noting that Officer Blackman took the time to turn the ignition of
Bartley’s car on so that Bartley’s cat, which was in the back of his vehicle, would not overheat
during the encounter. This further negates any notion that Officer Blackman was acting
with malice.
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effectively eliminate public official immunity for law enforcement officers and expose

them to personal liability for every encounter in which an arrest is made.

Unfortunately, the majority does just that, and being a law enforcement officer in

North Carolina just became even more challenging.

Chief Justice NEWBY and Justice BARRINGER join in this dissenting

opinion.