Bailey v. Kennedy
| Decision Date | 17 November 2003 |
| Docket Number | No. 02-1761.,No. 02-1818.,02-1761.,02-1818. |
| Parties | Michael BAILEY; Jane Bailey; Billy Bailey, Plaintiffs-Appellees, v. D.H. KENNEDY; D.B. Whitley; Mike Crisp; City of Hickory, Defendants-Appellants. Michael Bailey; Jane Bailey; Billy Bailey, Plaintiffs-Appellants, v. D.H. Kennedy; D.B. Whitley; Mike Crisp; City of Hickory, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert Danny Mason, Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellants.
Stephen Luke Largess, FERGUSON, STEIN, CHAMBERS, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Charlotte, North Carolina, for Appellees.
ON BRIEF:
James R. Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellants.
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge
Affirmed and remanded for further proceedings by published opinion. Judge WILLIAMS wrote the opinion, in which Judge TRAXLER and Senior Judge HAMILTON joined.
Officers D.H. Kennedy, D.B. Whitley, Mike Crisp, and the City of Hickory appeal the district court's denial of qualified immunity and public officers' immunity on several of Michael, Jane, and Billy Bailey's federal constitutional and state law claims. The Baileys' claims arose in connection with two separate incidents: the seizure of Michael Bailey1 on May 27, 1998, inside the home of his parents, Jane and Billy Bailey; and the arrest of Michael Bailey on September 3, 1998. As discussed below, accepting the facts as the district court2 viewed them in denying qualified immunity, the police officers violated clearly established federal law. In addition, under North Carolina law, an officer of reasonable intelligence would have known that the police officers' actions were contrary to their duty. Accordingly, we affirm the district court's denial of qualified immunity and public officers' immunity.
The Baileys cross-appeal the district court's grant of summary judgment to the police officers and the City of Hickory on the Baileys' procedural due process claim, and its denial of summary judgment on two of their state law claims. Because we do not have jurisdiction over this interlocutory cross-appeal, see Swint v. Chambers County Comm., 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), we grant the motion to dismiss the cross-appeal.
On May 27, 1998, Officers Whitley and Kennedy, police officers with the City of Hickory, North Carolina, took Michael Bailey involuntarily out of his parents' home to a hospital for an emergency mental evaluation. Accepting the facts as the district court viewed them, Michael was riding his bike while intoxicated before the officers were called.3 He rode to his neighbor's house and fell down. His neighbor, Ms. Matheson, called 911. The 911 operator " (J.A. at 75.) Officers Whitley and Kennedy responded separately to the call. Officer Whitley arrived at the Baileys' home first. The district court described the subsequent events as follows:
It is undisputed that Michael was home alone when Defendant Whitley arrived and knocked on the front door of the house. In the light most favorable to the Plaintiffs, Michael admitted Defendant Whitley into the house and returned to sit at the dining table where he was eating lunch. Defendant Whitley asked Michael a series of questions, which Michael answered to Defendant Whitley's apparent satisfaction. Michael denied any thoughts of suicide, but declined Defendant Whitley's request to search the rest of the house, instead directing Defendant Whitley to contact his father, Plaintiff Billy Bailey, for permission to conduct a search.
It is undisputed that there were no weapons or any other evident preparations for a suicide attempt in view in the foyer, dining room, or kitchen of the house, but Michael testified in his deposition that he told Defendant Whitley that his father kept guns locked in a gun safe.3 In the light most favorable to the Plaintiffs, Michael asked Defendant Whitley to leave, escorted him out of the house, and closed the front door....
FN.3 Michael Bailey's deposition testimony that he told Defendant Whitley about the gun safe is the first mention in the record of even the possibility of a gun being in the Bailey residence. In his deposition, Defendant Whitley could not recall ever asking Michael about the presence of weapons in the house, but merely asked generally for permission to search.
There is no evidence ... that Defendant Whitley voiced any objection to returning to the porch or made any attempt to remain inside the house or prevent Michael from closing the door. Instead, Defendant Whitley stepped out of the house and allowed Michael to shut the door.
At the same time that Defendant Whitley stepped out the front door onto the porch, Defendant Dennedy arrived on the scene, exited his patrol car, and began to walk towards the front porch. Defendant Whitley rang the doorbell but then stepped a few feet away from the doorway, turned his back to the door, and attempted to contact his supervisor, Lieutenant Ron Lambreth, via his portable radio.
Even in the light most favorable to the Defendants, Defendant Whitley said only "we're going to have to do something" to Defendant Kennedy, before Defendant Whitley began his radio conversation with his supervisor and Defendant Kennedy knocked on the front door....
It is undisputed that while [Michael] was ... speaking with his sister-in-law on the telephone — that is, while he was holding the telephone handset to his ear — Michael reopened the front door and faced Defendant Kennedy.
In the light most favorable to the Plaintiffs, after telling Defendant Kennedy that the suicide report was "crazy," that the officers "need[ed] to leave," and that he was going to call his lawyer, Michael attempted to close the door and turned and reached towards a cabinet where the telephone base was located. In the light most favorable to the Plaintiffs, Defendant Kennedy placed his foot in the doorway to prevent the door from closing and grabbed Michael's arm in an attempt to pull him onto the porch. Defendant Kennedy then stepped into the house and began to fight with Michael in an attempt to take him to the floor.
...
... [W]hen Defendant Whitley heard sounds of a struggle and Defendant Kennedy's verbal commands for Michael to get down on the floor, he turned and saw Defendant Kennedy fighting with Michael. Defendant Whitley discontinued his radio call and ran to assist Defendant Kennedy.
... Michael testified that Defendant Kennedy had tackled him and knocked him off his feet before Defendant Whitley came into the house, while Defendant Whitley testified that it required the efforts of both officers to finally take Michael to the floor.
It is undisputed that the officers ultimately succeeded in holding Michael down on the floor and placed a handcuff on one of his wrists. Defendant Whitley testified that Defendant Kennedy then struck Michael in the face "multiple" times with his fist, cutting Michael's mouth and lips, which bled and required stitches. Defendant Kennedy testified that he struck Michael "two or three times" in order to subdue Michael to the point that he could be handcuffed with his hands behind his back. Michael testified that his left shoulder was also injured by the Defendant officers' repeated attempts to grab his arm and apply handcuffs.
The Defendant officers finally handcuffed Michael with his hands in front, held him down on the floor, and waited for back-up. At 2:28 p.m., the Defendant officers did a "stop unit time check" on their portable radios, indicating that they were not in any danger.
Three minutes later, other officers arrived and placed flex-cuffs on Michael's ankles and wrists — this time with his hands behind his back....
Michael testified ... that while he was still lying facedown in the house, with his hands and feet "flex-cuffed," that Defendant Kennedy attempted to pick him up by the arms, which caused great pain in his shoulders. Michael testified that Defendant Whitley responded to his curses and shouts of pain by kicking him in the back.
In the light most favorable to the Plaintiffs, one unknown officer then dragged Michael by his feet to the curbside.
At this point, Plaintiff Billy Bailey arrived at his home. He observed his son still resisting the officers' attempts to place him in a police car and saw that Michael had scratches on his back and was bleeding profusely from his mouth. Mr. Bailey told Michael to stop fighting....
... After the officers left with Michael, Mr. Bailey went inside the house where he discovered on the foyer floor a pool of blood that was two feet in diameter.
(J.A. at 76-80.) We note that, in the light most favorable to the Baileys, after the officers arrived at the hospital, they falsely told the doctors that Michael had attacked them and that Michael's father already had petitioned to have Michael involuntarily committed. Kennedy then proceeded to procure a commitment order from the county magistrate without disclosing that Michael was already in custody. In addition, Kennedy completed the return of service portion of the commitment order by falsely indicating that he had served the order on Michael.
The second incident alleged in the complaint involved Michael Bailey's arrest on September 3, 1998. On the morning of September 3, Michael Bailey consumed an unknown quantity of alcohol. He then walked from his home to a Wachovia bank branch and attempted to cash a check. The teller refused to cash the check because Michael did not have any identification and was not a customer of the bank. Michael "`exchanged words'...
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