Merchant v. Bauer

• Decision Date: 26 April 2012
• Docket Number: No. 11–1392.,11–1392.
• Citation: 677 F.3d 656
• Parties: Rose C. MERCHANT, Doctor, Plaintiff–Appellee, v. Robert M. BAUER, Officer, Individually, Defendant–Appellant,andFairfax County, Virginia; Sharon Bulova, Fairfax County Board of Supervisors; Jonathan Nytes, Officer, Individually; Gervais Reed, Lieutenant, Individually; John Doe 1 Through John Doe 20, Both inclusive, regardless of number being each a separate individual and being fictitious and unknown to the Plaintiff the persons or parties intended being former and or current Fairfax County, Virginia employees, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

677 F.3d 656

Rose C. MERCHANT, Doctor, Plaintiff–Appellee,

v.Robert M. BAUER, Officer, Individually, Defendant–Appellant,andFairfax County, Virginia; Sharon Bulova, Fairfax County Board of Supervisors; Jonathan Nytes, Officer, Individually; Gervais Reed, Lieutenant, Individually; John Doe 1 Through John Doe 20, Both inclusive, regardless of number being each a separate individual and being fictitious and unknown to the Plaintiff the persons or parties intended being former and or current Fairfax County, Virginia employees, Defendants.

No. 11–1392.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2011.Decided: April 26, 2012.

ARGUED: Benjamin Rogers Jacewicz, County Attorney's Office, Fairfax, VA, for Appellant. Kenneth David Bynum, Bynum & Jenkins, PLLC, Alexandria, VA, for Appellee. ON BRIEF: David P. Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy County Attorney, County Attorney's Office, Fairfax, VA, for Appellant.

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge GREGORY and Judge DAVIS joined.

OPINION

KING, Circuit Judge:

Dr. Rose C. Merchant initiated this lawsuit in April 2010 against Robert M. Bauer, a police officer in Fairfax County, Virginia. Dr. Merchant, a licensed psychologist who resides in Prince George's County, Maryland, is a former Deputy Director of the Department of Corrections of that county. In her Complaint, Merchant alleged malicious prosecution under the law of Virginia, as well as a claim pursuant to 42 U.S.C. § 1983, premised on the Fourth Amendment. Defendant Bauer moved for summary judgment, contending that the doctrine of qualified immunity barred Merchant's § 1983 claim, and that Merchant was unable to prove malicious prosecution. The district court agreed with Bauer on the malicious prosecution claim, but permitted Merchant's § 1983 claim to go forward, rejecting Bauer's assertion of qualified immunity. Bauer appeals the court's denial of qualified immunity, and, as explained below, we affirm.

I.

Around noon on February 8, 2008, the Virginia State Police received a 911 call from a motorist on I–495 in Fairfax County, Virginia, reporting that he had been forced off the highway by a black Mercedes–Benz sedan displaying flashing blue front grill lights.¹ The caller reported the Maryland license number on the Mercedes, and the investigation was assigned to Officer Bauer of the County Police Department.

Bauer soon discovered that a black 2008 Mercedes–Benz with a matching Maryland license number was registered to Dr. Merchant under her married name, Rose Coretta Clark, of Prince George's County. Merchant lived there with her new husband, Rafael Desmond Clark, who, Bauer also learned, was a convicted felon. Clark had recently served as a police informant, making controlled buys of cocaine in Maryland's Anne Arundel County. Bauer sought to call Dr. Merchant, and left voicemail messages on the phone at her residence. Upon speaking with Dr. Merchant and Clark on February 9, Bauer ascertained that Clark had been driving the Mercedes in Virginia at the time of the report. Bauer asked them to bring the vehicle to Annandale, Virginia, for inspection, falsely representing that the complainant had reported contact damage to his automobile. Bauer's representations were for the purpose of enticing Merchant and her husband to make the drive to Fairfax County.

On the evening of February 9, Bauer, accompanied by Fairfax County Officers Brim and Nytes, met Dr. Merchant and Mr. Clark at a 7–Eleven convenience store in Annandale. The officers were thereafter joined briefly by their supervisor, Lieutenant Reed. After obtaining Dr. Merchant's consent to search the Mercedes, Bauer found no blue lights or other indicia of police customization, nor did he discover any evidence that such equipment had ever been installed or removed.

During a lengthy and occasionally testy encounter outside the 7–Eleven, Bauer's attention was attracted to what he perceived to be a badge that Dr. Merchant held in her jacket pocket. She did not, however, present the badge to Bauer (and Bauer never demanded that she produce or show it). Indeed, the badge was always sufficiently concealed that Bauer could not discern its text or markings. Merchant's body language, however, caused Bauer to ask “[W]hat do you want to show me?” to which she responded, “I'm not showing you anything.” J.A. 149.² Merchant told Bauer several times that she “work[ed] in public safety,” recited that she was Deputy Director of the Prince George's County Department of Corrections, that is, “second in charge,” and once referred to “my sheriffs.”

Dr. Merchant, agitated with Officer Bauer's behavior and pursuit of a false allegation, lamented that, “you could have at least give[n] me professional courtesy. You did not.” Id. at 174. Bauer explained that he had asked Prince George's County police officers to leave a note at Dr. Merchant's Maryland home, requesting that he be contacted. In response, Merchant speculated that a note was not left because the officers had spotted her other vehicle in the driveway. Merchant referred to that vehicle, a county-issued, unmarked white Impala, as her “police car,” using her hands to make “air quotes” (indicating quotation marks in mid-air). Id. at 186–87. Officer Bauer concluded that the Mercedes had not been equipped with flashing blue lights, and after additional banter, the 7–Eleven encounter concluded.

Upon reviewing video and audio recordings of the 7–Eleven encounter, Bauer was persuaded that Dr. Merchant had, on that occasion, unlawfully impersonated a police officer, in violation of Virginia Code Section § 18.2–174. That statute provides that

Any person who shall falsely assume or exercise the functions, powers, duties and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or who shall falsely assume or pretend to be any such officer, shall be deemed guilty of a Class 1 misdemeanor.

Va.Code § 18.2–174 (the “Impersonation Statute”). Bauer followed up on the 7–Eleven encounter with a phone call to Lieutenant Colonel Verjeana McCotter–Jacobs, a Division Chief of the Prince George's County Department of Corrections. McCotter–Jacobs verified that Dr. Merchant was Deputy Director of the Department of Corrections and confirmed her status as a civilian employee. McCotter–Jacobs also advised Bauer that some civilian officials of Prince George's County are authorized to carry badges. Dr. Merchant's boss, Director of Corrections Alfred J. McMurray, was thereafter informed of the Virginia investigation.³

Officer Bauer also studied the opinion of the Virginia Court of Appeals in English v. Commonwealth, 43 Va.App. 370, 598 S.E.2d 322 (2004), which upheld an Impersonation Statute conviction. Bauer believed that the behavior of the defendant in English was similar to Dr. Merchant's conduct in this case. Bauer then met with a deputy Commonwealth's Attorney, who advised Bauer that he “had a good case” for prosecuting Dr. Merchant for impersonating a police officer. As a result, Bauer went to a state magistrate and presented sworn testimony to obtain an arrest warrant against Merchant. The content of that testimony is not, however, in this record. The warrant was issued on February 13, 2008, charging Merchant with violating the Impersonation Statute. J.A. 117. Merchant, accompanied by counsel, turned herself in to the Virginia authorities on February 19, 2008, and she was handcuffed and processed. Two days later, she was fired by Prince George's County. After being advised of her new husband's criminal record, Merchant also had her marriage annulled.

Dr. Merchant went to trial in Fairfax County on the Virginia Impersonation charge on April 17, 2008. After viewing the police video and considering the evidence, including Bauer's testimony regarding the 7–Eleven encounter, the state court, in a bench trial, dismissed the charge, explaining that “There's no case.” Id. at 227. The court observed that, under the evidence, Merchant had repeatedly identified her county position to Bauer, accurately referred to her work in public safety, but “never indicated she was in law enforcement at any time.” Id. at 226–27.

On April 5, 2010, Dr. Merchant filed a pro se complaint in the District of Maryland against Bauer and several other defendants, alleging claims under 42 U.S.C. § 1983 for deprivation of her Fourth Amendment right to freedom from seizure without probable cause, and also asserting her state law claim for malicious prosecution. Her lawsuit was thereafter transferred to the Eastern District of Virginia, and the defendants moved to dismiss. Merchant then retained counsel, after which the parties agreed that the case would proceed only against Fairfax County, County Officers Bauer and Nytes, and Lieutenant Reed. Merchant later agreed to dismiss her claims against all the defendants except Officer Bauer, who, at the close of discovery, moved for summary judgment. With respect to the § 1983 Fourth Amendment claim, Bauer interposed his assertion of qualified immunity.

By its Order and Memorandum Opinion of April 11, 2011, see Merchant v. Fairfax County, 778 F.Supp.2d 636 (E.D.Va.2011) (the “Opinion”), the district court granted summary judgment to Bauer on the malicious prosecution claim (ruling that Dr. Merchant's evidence of malice was insufficient as a matter of law), but denied Bauer's motion as to the § 1983 claim. After spelling out the material facts of the case, the Opinion explained that “[n]o prudent person in Officer Bauer's position could conclude, even on the basis of a reasonable mistake in interpreting or applying the law, that probable cause existed to arrest Dr. Merchant for violating § 18.2–174 [the Impersonation Statute] under the specific constellation of facts in this record.” 778 F.Supp.2d at 649. The Opinion recognized, however, Bauer's entitlement to...