GBASAY ROGERSON, Plaintiff, v. HUGH E. FITZPATRICK, ALTON R.
TYNDALL, JR., and LINDA S. BECK, jointly and severally in their
individual official capacities and the CITY OF DURHAM, Defendants
1. Appeal and Error--appealability--denial of summary judgment--qualified
immunity--substantial right
Although an appeal from the denial of a motion for summary judgment is an appeal from
an interlocutory order, an order denying police officers the benefit of qualified immunity, as in
this case, affects a substantial right and is thus subject to immediate appeal.
2. Civil Rights--§ 1983 violations-_qualified immunity
The trial court did not err in a case alleging 42 U.S.C. § 1983 violations by denying
defendant police officers' motion for summary judgment on the basis of qualified immunity,
because there are disputed questions of fact concerning the officers' conduct, the role of
plaintiff's expired license plate in an officer's decision to pull defendant over, whether plaintiff
was placed under arrest, whether there was reasonable suspicion to stop plaintiff's vehicle, and
whether the search of the vehicle was incident to arrest.
3. Appeal and Error--appealability--interlocutory order--discretion of appellate court
The Court of Appeals declined to address the additional issue in an interlocutory appeal
concerning plaintiff's conspiracy claim.
Appeal by defendants from order entered 16 February 2004 by
Judge A. Leon Stanback in Durham County in Superior Court. Heard
in the Court of Appeals 1 February 2005.
Irving Joyner and Tracy Barley, for plaintiff-appellee.
Faison & Gillespie, by Reginald B. Gillespie, Jr., and Keith
D. Burns, for defendant-appellants.
HUDSON, Judge Plaintiff filed this suit against defendants jointly,
severally and individually in 1991, asserting a claim pursuant to
42 U.S.C. § 1983 for alleged violations of his Fourth Amendment
rights by defendants, who were all police officers at the time.
In November 2003, defendants filed a motion for summary judgment.
Plaintiff filed a cross motion for summary judgment in December
2003.
On 1
6 February 2004
, the trial court denied the motions
for summary judgment. Defendants appeal. For the reasons below,
we affirm.
On 17 February 1990 at approximately 11:30 p.m., plaintiff,
an African-American male, was driving his 1984 Porsche sports car
to a party; Ms. Ida Page was a passenger. As neither plaintiff
nor Ms. Page were familiar with their destination, plaintiff was
driving slowly. Officer Fitzpatrick, of the Durham Police
Department, observed plaintiff traveling slowly and began
following in his marked patrol car. Shortly thereafter,
plaintiff made a U-turn and then turned into the entrance to an
apartment complex, where Officer Fitzpatrick pulled him over.
Plaintiff's car bore temporary license plates from Wisconsin,
where he had purchased the car while on a temporary teaching
assignment.
However, these plates had expired in November 1989
and when plaintiff returned home to Durham in January 1990, he
failed to replace the expired Wisconsin temporary plates or
register the car in North Carolina
. Officer Fitzpatrick claimsthat he pulled defendant over because he observed the temporary
tag and because of the slow driving, which is consistent with a
driver who is under the influence of alcohol.
After he pulled plaintiff over, Officer Fitzpatrick
approached plaintiff's car and asked if he had been drinking and
to see his license and registration. Plaintiff produced his
license, but no registration. At that point, Officer Fitzpatrick
directed plaintiff out of the Porsche, searched him, and then
placed him in the back seat of his patrol car. Officer
Fitzpatrick contends that he arrested plaintiff, but plaintiff
contends that he was not arrested and that defendants'
affidavits, stating that plaintiff was arrested, conflict with
defendants' earlier statements.
Officers Linda Beck and Alton Tyndall arrived at the scene
and Officer Beck asked Ms. Page to locate the registration. When
Ms. Page could not find the registration, Officer Beck ordered
her to exit the car and stand behind it. Officer Beck contends
that Page attempted to open the door to the patrol car where
plaintiff was seated and that she thus searched Page and directed
her to the back seat of Officer Tyndall's car. The three
officers then searched plaintiff's car, including checking the
Vehicle Identification Number under the hood, looking through the
glove compartment, and searching through papers and documents in
the car's trunk. The defendants contend that Officer Beckaccidentally tripped the trunk latch, which opened the trunk to
the hatchback, when she was searching the interior of the car.
According to Officer Fitzpatrick, after his inquiry
regarding the vehicle's status revealed that the car was not
reported as stolen, but also that it was not registered in North
Carolina, he reconsidered his decision to arrest plaintiff and
issued citations for displaying an expired license plate and for
failure to have current registration and insurance. Plaintiff
was convicted of driving with an expired license plate and
failure to register the car in Durham County District Court.
Plaintiff appealed his convictions to Superior Court, where the
District Attorney dismissed the charges.
[1] Defendants argue that the doctrine of qualified immunity
bars plaintiff's claims and that the trial court erred in denying
their motion for summary judgment. Usually, the trial court's
denial of a motion for summary judgment is not immediately
appealable, as it is interlocutory. Rousselo v. Starling, 128
N.C. App. 439, 443, 495 S.E.2d 735, 728 (1998)
. However, where a
substantial right is affected, an interlocutory order may be
immediately appealable. Id. In their statement of grounds for
appellate review, defendants have correctly pointed out that this
Court has held that where an order denies Officers the benefit of
qualified immunity, as here, it affects a substantial right and
is thus subject to immediate appeal. Id. [2] Plaintiff's claims against the individual defendants are
based upon legal theories to which the doctrine of qualified
immunity may apply. This protects police officers from liability
for money damages unless they are “plainly incompetent” or
“knowingly violate the law.” Anderson v. Creighton, 483 U.S.
635, 638, 97 L. Ed. 2d 523, 530 (1987) (internal citation
omitted). More specifically, the doctrine protects public
officials unless their conduct violates clearly established
statutory or constitutional rights of which a reasonable person
in their position would be aware. Harlow v. Fitzgerald, 457 U.S.
800, 818, 73 L. Ed. 2d 396, 410 (1982). Thus, a police officer
is not liable even if he violated a plaintiff's rights, if those
rights were not clearly established at the time, or if a
reasonable person in the officer's position would have thought
his actions were consistent with established law. Tarantino v.
Baker, 825 F.2d 772, 774 (4th Cir. 1987)..
We review de novo
the order of a superior court order
denying a motion for summary judgment. Falk Integrated Techs.,
Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574
(1999). “Summary judgment is appropriate if (1) the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact; and (2) the moving party is entitled to
judgment as a matter of law.” Stephenson v. Warren, 136 N.C.App. 768, 771-72, 525 S.E.2d 809, 811-12 (2000).
Defendants argue that whether an officer is entitled to
immunity is purely a question of law for the court. In support
of this proposition, defendants cite Pachaly v. City of
Lynchburg, 897 F.2d 723, 726 (4th Cir. 1990), and Jones v. City
of Chicago, 856 F.2d 985, 994 (7th Cir. 1988). While these cases
do state that the question of immunity is for the judge and not
the jury to decide, they do not preclude factual inquiry. In
Pachaly, the Court cites the United States Supreme Court decision
in Mitchell v. Forsyth, for support of the proposition that when
a court looks at qualified immunity, “[a]ll it need determine is
a question of law.” Pachaly, 897 F.2d at 727, citing Mitchell,
472 U.S. 511, 528, 86 L. Ed. 2d 411, 426 (1985). In Mitchell,
though, the Court also says: “[t]o be sure, the resolution of
these legal issues will entail consideration of the factual
allegations that make up the plaintiff's claim for relief
.” Id.
Similarly, in Jones, the United States Court of Appeals for the
Seventh Circuit relies on another case from that Circuit,
Rakovich v. Wade, which states: “[a]lthough the qualified
immunity determination is a legal question it is not answered in
the abstract but in reference to the particular facts of the
case.”
Jones, 856 F.2d at 994, citing Rakovich, 850 F.2d 1180,
1201-02 (7th Cir. 1988)
.
Likewise, this Court has concluded that when ruling on thedefense of qualified immunity, we must:
(1) identify the specific right allegedly
violated; (2) determine whether the right
allegedly violated was clearly established at
the time of the violation; and (3) if the
right was clearly established, determine
whether a reasonable person in the officer's
position would have known that his actions
violated that right. The first two
determinations are questions of law. However,
the third question is one of fact, and
requires a factfinder to resolve disputed
aspects of the officer's conduct. Summary
judgment is not appropriate if there are
disputed questions of fact concerning the
officer's conduct.
Rousselo, 128 N.C. App. at 445, 495 S.E.2d at 729-30 (emphasis
added) (internal quotation marks and citations omitted). Here,
because we conclude that there are disputed questions of fact
concerning the officers' conduct, we hold that summary judgment
was not appropriate.
Defendants argue that plaintiff failed to establish that any
violations of his Fourth Amendment rights occurred. Defendants
contend that the traffic stop was based on reasonable articulable
suspicion, that plaintiff was arrested based on probable cause,
and that the search of his vehicle was a lawful search incident
to arrest. However, our review of the record reveals factual
disputes regarding, at the least: (1) the role of plaintiff's
expired license plate in Officer Fitzgerald's decision to pull
plaintiff over; and, (2) whether plaintiff was placed under
arrest. Defendants gave different explanations of the factsregarding these issues in their initial answers to plaintiff's
complaint and interrogatories than in their affidavits from 2003.
What Officer Fitzgerald noticed about the condition of
plaintiff's license plate (how dirty it was, that it looked
expired, etc.) bears upon whether there was reasonable suspicion
to stop plaintiff's vehicle. Whether plaintiff was arrested is
central to the issue of whether the search of the vehicle was
incident to arrest. Accordingly, summary judgment was not
appropriate and the trial court did not err in denying
defendants' motion for summary judgment. Because this conclusion
is dispositive, we need not address further
defendants' arguments
regarding whether plaintiff's rights were violated and whether
any rights which may have been violated were clearly established.
[3] Defendants also request that we review plaintiff's
conspiracy claim, even though there is no right to immediate
appeal on this issue. Although we may exercise our discretion to
address an additional issue in an interlocutory appeal in the
interest of judicial economy, Liggett Group v. Sunas, 113 N.C.
App. 19, 24, 437 S.E.2d 674, 678 (1993), here
we decline to do
so.
Affirmed.
Judges WYNN and STEELMAN concur.
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