Fox v. City of Greensboro

• Decision Date: 21 September 2021
• Docket Number: No. COA20-438,COA20-438
• Citation: 279 N.C.App. 301,866 S.E.2d 270
• Parties: William Thomas FOX and Scott Everett Sanders, Plaintiffs, v. The CITY OF GREENSBORO; Mitchell Johnson, individually and in his officially capacities; Timothy R. Bellamy, individually and in his officially capacities; Gary W. Hastings, individually and in his officially capacities; Ernest L. Cuthbertson, individually and in his officially capacities; John D. Slone, individually and in his officially capacities; Norman O. Rankin, individually and in his officially capacities; and Martha T. Kelly, individually and in her officially capacities, Defendants.
• Court: North Carolina Court of Appeals

279 N.C.App. 301

866 S.E.2d 270

William Thomas FOX and Scott Everett Sanders, Plaintiffs,

v.The CITY OF GREENSBORO; Mitchell Johnson, individually and in his officially capacities; Timothy R. Bellamy, individually and in his officially capacities; Gary W. Hastings, individually and in his officially capacities; Ernest L. Cuthbertson, individually and in his officially capacities; John D. Slone, individually and in his officially capacities; Norman O. Rankin, individually and in his officially capacities; and Martha T. Kelly, individually and in her officially capacities, Defendants.

No. COA20-438

Court of Appeals of North Carolina.

Filed September 21, 2021

Morrow, Porter, Vermitsky, & Taylor, PLLC, Winston-Salem, by John C. Vermitsky, for Plaintiffs-Appellants.

Nelson Mullins Riley & Scarborough, LLP, Winston-Salem, by G. Gray Wilson, Stuart H. Russell, and Lorin J. Lapidus, for Defendants-Appellees.

WOOD, Judge.

¶ 1 Plaintiffs William Fox ("Fox") and Scott Sanders ("Sanders") (collectively, "Plaintiffs") appeal two separate orders. Plaintiffs first appeal an order dismissing their civil conspiracy and abuse of process claims. Plaintiffs also appeal an order granting summary judgment in favor of Defendants with respect to their malicious prosecution cause of action. After careful review of the record and applicable law, we affirm in part and reverse in part.

I. Factual and Procedural Background

¶ 2 In 1984, Defendant Mitchell Johnson ("Defendant Johnson") became employed by the City of Greensboro. In early 2000, Defendant Johnson became the Deputy City Manager. While Defendant Johnson was the Deputy City Manager, the City Manager Ed Kitchen ("Kitchen") asked Defendant Johnson "to review a letter from the NAACP expressing concerns" of racial misconduct within the Greensboro Police Department ("GPD"). In the summer of 2005, while Defendant Johnson's review of the concerns raised was ongoing, Kitchen retired, and Defendant Johnson became the City Manager.

¶ 3 In 2005, Plaintiffs were law enforcement officers with the GPD. Plaintiffs were assigned to the "Special Intelligence Section" ("SIS"), a subdivision of the Special Investigations Division ("SID") within the GPD. The SIS was "a unit designed to investigate, among other things, allegations of criminal police misconduct, outlaw motorcycle gangs, street gangs, dangerous persons, organized crime," and to "protect celebrities or high risk targets visiting Greensboro, North Carolina."

¶ 4 In or around June 2005, GPD Officer James Hinson ("Hinson") and other African American officers raised concerns that Chief of Police David Wray ("Chief Wray") and "a group of Caucasian officers coined the ‘Secret Police’ " were racially targeting African American police officers. Hinson alleged the SIS, including Plaintiffs, were involved in the "Secret Police."

¶ 5 The allegations of racial discrimination and targeting centered around the SIS's use of an alleged "Black Book." The "Black Book" was a black binder containing pictures of nineteen African American officers and various male African American individuals allegedly used "as part of an effort to target African American police officers for criminal investigations." The SIS asserted that the "Black Book" was a legitimate investigative tool being used to investigate an allegation of sexual assault by an on-duty African American officer. The "Black Book" contained photographs of minority male officers who were on-duty during the alleged sexual assault of an informant.

¶ 6 Due to the allegations of racial misconduct, Defendant Johnson asked Chief Wray about the NAACP's concerns and the existence of the Black Book. Chief Wray's written response led Defendant Johnson to "believe that [Wray] denied the existence of anything matching the description of the ‘Black Book.’ " Defendant Johnson reported to the NAACP that the "Black Book" did not exist.

¶ 7 In August 2005, Defendant Johnson attended a meeting with African American GPD officers at their request. During this meeting, Defendant Johnson heard the officers’ concerns regarding the Wray administration. Around this time, Defendant Johnson also learned of concerns regarding the SID from the State Bureau of Investigation ("SBI"). Due to repeated concerns regarding the GPD, Defendant Johnson contacted City Attorneys "to find an outside entity to review the conduct of the Wray administration to determine if there was any truth to the concerns." The City's legal department ("City Legal"), in response, recommended Risk Management Associates ("RMA"), an independent consulting company, to review the Wray administration. Defendant Johnson hired RMA to "review the conduct of the ... Wray [a]dministration[,]" but "did not ask RMA to investigate any particular individual."

¶ 8 While the RMA investigation was ongoing, Defendant Johnson "had the legal department of the City of Greensboro investigate general administrative issues in the GPD." The RMA report caused Defendant Johnson to believe Chief Wray "had not been truthful about the ‘Black Book’ and raised other serious concerns about the leadership of the [GPD]." As a result, Defendant Johnson then "chose to place Wray on administrative leave" on January 6, 2006. At that time, Defendant Timothy Bellamy ("Defendant Bellamy"), the Assistant Chief of Police, became the interim Chief of Police. Shortly after Chief Wray was placed on administrative leave, he resigned as Chief of Police on January 9, 2006.¹ After Chief Wray's resignation, Defendant Bellamy was tasked with reviewing the RMA and City Legal reports.

¶ 9 Upon his review of the RMA report, Defendant Bellamy had "very serious concerns about the leadership of the Wray administration." According to the report, Officer Randall Brady ("Brady") revealed to the RMA that "he was keeping in the trunk of his police car a book that matched the description of the ‘Black Book.’ " According to Sanders, Brady secured the "Black Book" in the trunk of his patrol vehicle to avoid speculation that the "Secret Police" were showing the "Black Book" to a variety of individuals in an effort to incriminate minority officers.

¶ 10 Upon securing the "Black Book" from Brady's trunk, Defendant Bellamy gave the "Black Book" to Internal Affairs ("IA"). IA then began its investigation. Thereafter, Defendant Bellamy assigned Captain Gary Hastings ("Defendant Hastings") "with the task of securing and reviewing materials within [SID] ... for possible criminal activity." Defendant Hastings "put together a team" of officers from the Criminal Investigation Division ("CID") to review the activity of the SID and Wray administration.

¶ 11 While Defendant Hastings was investigating the SID, Defendant Bellamy met with Guilford County District Attorney Doug Henderson ("Henderson") about the RMA report and Defendant Hastings's investigative findings. Henderson informed Defendant Bellamy that the Guilford County District Attorney's Office could not participate in the investigation and that the North Carolina Attorney General's Office would need to be contacted about the concerns regarding alleged criminal conduct within the GPD.

¶ 12 Henderson drafted a letter to Assistant Attorney General James Coman ("Coman") in March 2006. Henderson also wrote a letter to the Director of the SBI, requesting a criminal investigation of the Wray administration on March 13, 2006. On April 4, 2006, Coman responded to Henderson, "accepting responsibility to determine whether or not a criminal investigation should be undertaken by the [SBI]." Coman and a Special Deputy Attorney General traveled to Greensboro throughout April and May 2006 to review police reports and tapes. On June 9, 2006, a meeting was held at the SBI District Office in Greensboro, where it was determined the SBI would mount an investigation of the Wray administration.

¶ 13 Throughout the SBI investigation, agents met with and interviewed approximately seventy-five individuals, including Plaintiffs and Defendants Johnson, Bellamy, and Hastings. Agents also reviewed "69 CDs of audio recordings that were retrieved from Detective Scott Sanders’ city computer and other sources." One witness, Dana Bailey ("Bailey"), discussed how Sanders asked her to create lineups of male African American officers.

¶ 14 Bailey was employed by the GPD in 2000 and worked as an investigative specialist. In or around January 2003, Sanders asked Bailey to put together lineups consisting of five officers. Bailey believed the officers were Hinson, Snipes, Wallace, Fulmore and Norman Rankin ("Defendant Rankin"). Bailey stated her lineups were created using Department of Motor Vehicles ("DMV") photographs, and she cropped any photograph of an officer in uniform "so it looked similar to others in the lineup."

¶ 15 In January 2005, Sanders asked Bailey to put together a list of every officer who had worked on a particular date and shift. Bailey did so, and Sanders requested "16 or 17 more lineups," and told her "the request was by the authority of Deputy Chief Brady." Bailey created the lineups, and she mentioned in her SBI interview that "all of the officers she did lineups on were black." Sanders did not mention what the lineups were for, nor did Bailey "want to know what they were for." During the investigation of the GPD, Bailey reported some computers were taken for investigation, but one of hers was not. "[I]t bothered [Bailey] that a complete investigation would not be done if that computer was not taken and looked at."

¶ 16 Defendant Hastings was also interviewed by the SBI. Defendant Hastings's interview revealed Defendant Bellamy "designated Hastings as the operational commander for the inventory, review, and analysis of the seized property belonging to the [SID]." Defendant Hastings "was made the commander for any subsequent criminal investigation involving any allegation or evidence of a crime." Defendant Hastings stated the CID "seized a ‘ton’ of stuff including electronic media, such as audio cassette...