Brown v. Town of Chapel Hill, COA13–323.

CourtCourt of Appeal of North Carolina (US)
Citation756 S.E.2d 749
Decision Date01 April 2014
Docket NumberNo. COA13–323.,COA13–323.
PartiesCharles D. BROWN, Plaintiff, v. TOWN OF CHAPEL HILL, Chapel Hill Police Officer D. Funk, in his official and individual capacity, and Other Chapel Hill Police Officers, in their individual and official capacities, to be named when their identities and level of participation becomes known, Defendants.

756 S.E.2d 749

Charles D. BROWN, Plaintiff,
TOWN OF CHAPEL HILL, Chapel Hill Police Officer D. Funk, in his official and individual capacity, and Other Chapel Hill Police Officers, in their individual and official capacities, to be named when their identities and level of participation becomes known, Defendants.

No. COA13–323.

Court of Appeals of North Carolina.

April 1, 2014.

[756 S.E.2d 750]

Appeal by defendants from order entered 18 September 2012 by Judge Carl R. Fox in Orange County Superior Court. Heard in the Court of Appeals 28 August 2013.

McSurely and Turner, PLLC, Chapel Hill, by Alan McSurely, for plaintiff-appellee.

Cranfill Sumner & Hartzog LLP, Raleigh, by Dan M. Hartzog and Dan M. Hartzog, Jr., for defendants-appellants.


Officer D. Funk (“defendant” or “Officer Funk”) and the Town of Chapel Hill (“the Town”) (collectively “defendants”) appeal from an order denying in part their motion for summary judgment as to the claim of plaintiff Charles D. Brown for false imprisonment. Only Officer Funk's appeal from the trial court's denial of his motion for summary judgment based on public official immunity is properly before us. Because plaintiff failed

[756 S.E.2d 751]

to forecast evidence that Officer Funk acted with malice, we reverse.


This lawsuit arises out of the stop and detention of plaintiff by Officer Funk and other officers of the Chapel Hill Police Department (“CHPD”) on the night of 1 June 2009. Plaintiff, a black male, is the owner of Precise Cuts & Styles Barber Shop located at 136 E. Rosemary Street in Chapel Hill, North Carolina.

According to plaintiff's verified complaint and deposition, on 1 June 2009, after closing his shop at 10:00 p.m., plaintiff stayed late to do some cleaning and remodeling. When plaintiff was finished, around 11:25 p.m., he locked the shop's front door and walked west on Rosemary Street towards his fiancé's house in Carrboro.

At around 11:35 p.m., plaintiff was walking along the north side of West Rosemary Street when he saw two officers in police cars parked in the convenience store lot on the south side of the street across from Breadman's Restaurant. One of the officers pulled out on Rosemary Street and into an empty lot on the south side of the street. As he walked past the officer, plaintiff raised his right arm across his face, scratching the left side of his face with his right hand. Plaintiff continued walking on the north side of the street past the Breadman's parking lot, and heard someone say, “Stop.” Not realizing that the person was talking to him, plaintiff continued walking.

Plaintiff then heard the same voice again, this time directly behind him, saying, “I said stop!” Plaintiff turned and saw Officer Funk with his hand on his weapon about five feet away. Plaintiff asked, “Stop for what? What did I do?” Officer Funk responded, “[Y]ou are under arrest, Mr. Farrington [sic]” as he grabbed plaintiff's hand, spun him around, pushed him against the back of a second police car that had just pulled in front of plaintiff. Officer Funk pulled plaintiff's other arm behind his back and tightly fastened the handcuffs on plaintiff's wrists, inflicting pain.

Plaintiff informed the officers that he was not Cuman Fearrington (“Mr. Fearrington”) and that his actual name was Charles Brown. When plaintiff did not receive any response from the officers, he asked, “[A]re you sure you want to do this? My name is not Mr. Farrington [sic].” Again, the officers did not respond. Instead, Officer Funk pushed plaintiff against the trunk of the police car and patted plaintiff down, checking for weapons. Plaintiff told Officer Funk to look in his pants pocket for his ID cards. Defendant pulled out a set of cards held together with a rubber band, flipped through them, and threw them on the trunk of the police car.

When Officer Funk asked plaintiff from where he was walking, plaintiff told him that he had just left work. Officer Funk questioned plaintiff: “From work at this time of night?” Plaintiff explained that he owned a barber shop on Rosemary Street. Officer Funk replied in a sarcastic and incredulous tone: “Oh? You own a business?” Plaintiff responded, “If I was white, this would not be happening.” Officer Funk then asked whether plaintiff would “feel better” if he called a black officer. Because plaintiff again thought Officer Funk was being sarcastic, he replied, “No.”

In the meantime, five police cars gathered, and several cars and pedestrians slowed or stopped to observe what was happening. A black police officer, Officer D. Williams, asked plaintiff, “If I had pulled you, would you feel better?” Plaintiff then heard Officer Williams say to the other officers, “I hate the ones like him.”

At 12:14 a.m., Officer Funk's partner, Officer Castro, called Orange County Communications to verify the information on plaintiff's identification, Officer Castro asked, “[D]oes he have anything on the NCIC? Or anything on other surrounding indices?” The operator replied, “I don't show anything in NCIC but I'm going to check surrounding ... I'll have to send a message ... it will take a few....” Eventually the operator responded that there was “no positive response,” and the 16–minute call ended at 12:30 a.m. A few minutes later, Officer Funk removed plaintiff's handcuffs, and he and the other officers drove off without apologizing or saying anything else to plaintiff.

[756 S.E.2d 752]

The following day, plaintiff and his fiancé drove to the CHPD to file a complaint and ask for a photograph and description of Mr. Fearrington. They met with Lieutenant Bradley who told them he did not have time to look up the requested information and that Officer Funk was in training and could not meet with them either. Because of what plaintiff and his fiancé perceived as a discriminatory and disrespectful attitude from Lt. Bradley, they did not file a complaint that day, fearing it would be dismissed with the same attitude.

Instead, on 16 June 2009, plaintiff reported the incident to the local NAACP, who asked the CHPD for the incident report of plaintiff's arrest. Plaintiff was provided the incident report on 24 June 2009. Defendants admitted that the report was not created until requested by the NAACP, two weeks after the incident. The report is unsigned by Officer Funk and states that at 12:17 a.m. on 2 June 2009 the “State of North Carolina” was the victim of a “Suspicious Person” on the 300 Block of West Rosemary Street.

The report lists Officers Castro and Sabanosh as “others involved” in the incident. Officer Sabanosh does not, however, appear anywhere on the radio log from that night. Although the radio log indicates that Officer Taylor was present at the scene of the incident, the incident report does not mention him. Officer Williams, the black officer, is not mentioned in either the radio log or on the incident report.

On 2 June 2011, plaintiff filed suit against the Town and Officer Funk in his official and individual capacity for assault, false imprisonment, and violation of plaintiff's constitutional rights under Article I, Section 20, and Article I, Section 19, of the North Carolina Constitution. Plaintiff pled that the Town had waived sovereign immunity by the purchase of liability insurance. In its response, the Town admitted that it “participates in a local government risk pool, which provides certain coverage to the Town with respect to Plaintiff's claims.”

On 13 August 2012, defendants filed a motion for summary judgment, arguing that (1) plaintiff had not and could not establish facts to support any of his causes of action, (2) Officer Funk was entitled to public official immunity in his individual capacity, (3) the claims against Officer Funk in his official capacity are duplicative of the claims against the Town, and (4) the claims directly under the North Carolina Constitution should be dismissed because plaintiff had adequate state remedies available. In support of the motion for summary judgment, defendants submitted an affidavit from Officer Funk.

According to Officer Funk's affidavit, he did not see plaintiff until 12:14 a.m.—he drove to the Keys Food Mart, where plaintiff first saw the two officers parked, after responding to a loud music complaint on Church Street at 12:04 a.m. Officer Funk first saw plaintiff walking west on the south side of the road as defendant was turning right onto Rosemary. As he made his turn, Officer Funk saw plaintiff look up in his direction and immediately put his right hand in front of his face. Plaintiff continued to cover his face with his hand, moving his hand slowly across his face as Officer Funk drove by to keep his face from view. After plaintiff passed Officer Funk, plaintiff crossed from the south side to the north side of the street just before reaching Officer Castro's patrol car in the Keys Food Mart lot. As he crossed the street, he switched from using his right hand to cover his face to using his left hand so that Officer Castro could not see his face. Officer Funk claimed that plaintiff hid his face continuously.

Based on Officer Funk's belief that plaintiff was intentionally hiding his face and it being after midnight in a high call volume area of town, Officer Funk decided to investigate further. He turned his vehicle around to get a closer look at plaintiff, and, when he got close enough, “the individual resembled a subject [he] knew had active local arrest warrants—Cuman Fearrington.” In addition to the arrest warrants, Officer Funk noted that Mr. Fearrington had evaded arrest in the “Central Business District” of Chapel Hill earlier that day. Officer Funk, believing that plaintiff was Mr. Fearrington, thought that plaintiff was intentionally covering his face based on those outstanding arrest warrants.

[756 S.E.2d 753]

According to Officer Funk, he got out of his police car and asked plaintiff if he could speak to him, but plaintiff ignored him and increased his pace....

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