678 F.3d 333 (4th Cir. 2012), 10-1738, Gregg v. Ham

Docket Nº:10-1738.
Citation:678 F.3d 333
Opinion Judge:DIAZ, Circuit Judge:
Party Name:Shirley GREGG, Plaintiff-Appellee, v. Jon E. HAM; Quick Silver Bail Bonds LLC, Defendants-Appellants, and Sumter County Sheriff's Department; Senior Deputy Justin Yelton, Defendants.
Attorney:Adam Tremaine Silvernail, Law Office of Adam T. Silvernail, LLC, Columbia, South Carolina, for Appellants. William Elvin Hopkins, Jr., Beasley, Allen, Crow, Methvin, Portis & Miles, PC, Montgomery, Alabama, for Appellee. James T. McBratney, III, McBratney Law Firm, PA, Florence, South Carolina, f...
Judge Panel:Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.
Case Date:April 30, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 333

678 F.3d 333 (4th Cir. 2012)

Shirley GREGG, Plaintiff-Appellee,

v.

Jon E. HAM; Quick Silver Bail Bonds LLC, Defendants-Appellants,

and

Sumter County Sheriff's Department; Senior Deputy Justin Yelton, Defendants.

No. 10-1738.

United States Court of Appeals, Fourth Circuit.

April 30, 2012

Argued: Jan. 26, 2012.

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ARGUED:

Adam Tremaine Silvernail, Law Office of Adam T. Silvernail, LLC, Columbia, South Carolina, for Appellants.

William Elvin Hopkins, Jr., Beasley, Allen, Crow, Methvin, Portis & Miles, PC, Montgomery, Alabama, for Appellee.

ON BRIEF:

James T. McBratney, III, McBratney Law Firm, PA, Florence, South Carolina, for Appellants.

Paul M. Fata, Stuckey, Fata & Segars, LLC, Bishopville, South Carolina, for Appellee.

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge NIEMEYER and Judge MOTZ joined.

OPINION

DIAZ, Circuit Judge:

Shirley Gregg sued bail bondsman Jon Ham and others alleging civil rights violations under 42 U.S.C. § 1983, as well as various state law tort claims. The claims stem from Ham's efforts to apprehend a fugitive in and around Gregg's home. A jury found in Gregg's favor on her § 1983, trespass, and assault claims— awarding a total of $100,000 in compensatory and punitive damages. Ham appealed, challenging the jury's verdict and damages award.

Among the issues Ham raises is a challenge to the court's jury instruction on qualified immunity. As part of his defense, Ham asserted that he was entitled to qualified immunity from the § 1983 claim. Ham now contends for the first time on appeal that the district court erred by submitting the legal issue of qualified immunity to the jury. Reviewing for plain error, we find Ham's argument unpersuasive. There was no error— plain or otherwise— because as a bail bondsman Ham

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was not entitled to qualified immunity. Finding no merit in any of Ham's other claims, we affirm.

I.

A.

Jon Ham, through his company Quick Silver Bail Bonds LLC, posted a $20,000 bond for Tyis Rose following his arrest for assault with intent to kill in Florence County, South Carolina. After Rose failed to appear, the court issued a fugitive warrant for Rose's arrest. Ham concentrated his search for Rose in Sumter County, South Carolina in the community where Rose's parents lived. Shirley Gregg lived in the same community, approximately a mile and a half from Rose's parents. Gregg was acquainted with Rose's family but did not know them well. Gregg suffered from several physical ailments— including rheumatoid arthritis and the effects of several joint replacements— that prevented her from working and left her largely confined to her home.

After months of searching for Rose, Ham observed someone driving a white car that he suspected belonged to Rose. Ham pursued the vehicle, and a chase ensued. The car, which was in fact driven by Rose, ultimately came to rest on Gregg's property. At that point, Rose fled the vehicle and began running from Ham. Rose took several steps toward Gregg's house before running into a nearby wooded area. Ham gave chase on foot and fired several shotgun blasts over Rose's head. Despite his efforts, Ham failed to apprehend Rose.

Ham purportedly conducted surveillance from the woods at the edge of Gregg's property later that evening and saw Rose enter Gregg's house. Two days later, Ham returned to Gregg's property at 7:30 a.m. along with Sumter County Sheriff's Deputy Justin Yelton and several other bail bondsmen. Ham called the Sheriff's Department for assistance " to make sure there were no problems," J.A. 178, but did not ask the sheriff to obtain a search warrant— nor was one ever issued. According to Yelton, Ham was in charge during the visit to Gregg's house and did most of the talking.

Ham and Yelton stepped onto Gregg's porch, while the other bail bondsmen surrounded the house. The pair knocked on Gregg's door and requested entry to search for Rose. Gregg, who was in bed when she heard the knock, responded through the door that there was no one else inside. Gregg testified that Ham was " shaking the door like he was going to break it" and warned her that she " had to let them come in or he was going to come in." Id. 79-80. Through the window, Gregg observed that Ham was armed with a shotgun but was unable to see Yelton until she opened the door. Gregg ultimately allowed Ham and Yelton to enter because she felt threatened and " wasn't going to try to get killed." Id. 80. According to Ham and Yelton, Gregg verbally consented several times to the search both prior to and after their entry. Gregg observed that upon entering the house, Ham aimed his shotgun head-high or at chest level and kept it pointed up while searching throughout the house. Unable to locate Rose, Ham became agitated and started yelling questions at Gregg about Rose's whereabouts. After Gregg began crying, Yelton intervened and asked Ham to leave her alone.

Following Ham and Yelton's departure, Gregg called 911 to complain about the entry and search. Yelton, who was still in the area, responded to the call. Gregg indicated that she did not wish to speak to Yelton but instead asked to speak to his supervisor. Later that day, Gregg's

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brother warned Ham not to return to his sister's house. Despite the warning, Ham returned to tell Gregg that he had raised the reward for Rose's apprehension. In response, Gregg called her sister, who confronted Ham and told him to leave. According to Gregg, Ham responded that " he can do whatever he wanted to do." Id. 93.

As a result of her encounters with Ham, Gregg was scared to stay by herself, began locking her doors, felt anxious and insecure, and had trouble sleeping. Gregg ultimately sought counseling from a psychologist, who concluded that Gregg suffered from depression and anxiety and diagnosed her with post-traumatic stress disorder. The psychologist also noted that Gregg's preexisting disabilities exacerbated the impact of the incident, causing her to feel more threatened.

B.

Gregg sued Ham, Quick Silver, the Sumter County Sheriff's Department, and Yelton in the Court of Common Pleas in Sumter County, South Carolina. She alleged causes of action for (1) gross negligence and recklessness, (2) constitutional violations of the Fourth and Fourteenth Amendments under § 1983, (3) trespass, (4) intentional infliction of emotional distress, and (5) assault. Based on the issue of federal law presented in Gregg's § 1983 claim, the defendants removed the case to federal court. Gregg subsequently settled her claims against the Sheriff's Department and Yelton.

The claims against Ham and Quick Silver were tried before a jury. The district court granted the defendants' motion for a directed verdict on the intentional infliction of emotional distress claim. The jury returned a verdict for Gregg, awarding nominal damages on Gregg's § 1983 and trespass claims and $50,000 in compensatory damages on her assault claim. The jury also awarded a total of $50,000 in punitive damages, including $30,000 on the § 1983 claim and $10,000 each on the trespass and assault claims.

Ham filed a motion under Rules 50 and 59 of the Federal Rules of Civil Procedure, seeking a judgment notwithstanding the verdict, a new trial, and alteration or amendment of the judgment. The district court denied Ham's motion. On appeal, Ham contends that (1) the district court erred by submitting the issue of qualified immunity to the jury, (2) he is entitled to judgment as a matter of law on the § 1983 and assault claims, and (3) the damages awards on the various claims were inconsistent, unsupported by the facts, and excessive. We consider each claim in turn.

II.

Ham contends that he is entitled to a new trial on the § 1983 claim because the district court improperly submitted the legal question of qualified immunity to the jury. Because Ham did not object to the jury instruction at trial, we review for plain error. See Fed.R.Civ.P. 51(d)(2) (" A court may consider a plain error in the instructions that has not been preserved ... if the error affects substantial rights." ). Applying plain error review, we will not reverse unless Ham can establish: " (1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines ... that the error seriously affects the fairness, integrity or public reputation of judicial proceedings." In re Celotex Corp., 124 F.3d 619, 630-31 (4th Cir.1997) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Ham is unable to show that the district court committed plain error.

The defense of qualified immunity involves a two-step procedure " that asks

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first whether a constitutional violation occurred and second whether the right violated was clearly established." Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.2011) (en banc) (quoting Melgar v. Greene, 593 F.3d 348, 353 (4th Cir.2010)). In determining whether a right is clearly established, courts consider " whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 534 (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Qualified immunity is typically an immunity from suit, rather than a mere defense to liability, and is effectively lost if a case is permitted to go to trial. Witt v. W.Va. State Police, Troop 2, 633 F.3d 272, 275 (4th Cir.2011). Nevertheless, in Willingham v. Crooke, 412 F.3d 553, 560 (4th...

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