Pegg v. Herrnberger

• Citation: 845 F.3d 112
• Decision Date: 04 January 2017
• Docket Number: No. 15-1999,15-1999
• Parties: Brandon PEGG, Plaintiff-Appellee, v. Grant HERRNBERGER, individually and in his capacity as agent and employee of the West Virginia State Police, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

845 F.3d 112

Brandon PEGG, Plaintiff-Appellee,

v.Grant HERRNBERGER, individually and in his capacity as agent and employee of the West Virginia State Police, Defendant-Appellant.

No. 15-1999

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2016

Decided: January 4, 2017

ARGUED: Monte Lee Williams, Steptoe & Johnson PLLC, Morgantown, West Virginia, for Appellant. Robert G. McCoid, McCamic, Sacco & McCoid, P.L.L.C., Wheeling, West Virginia, for Appellee. ON BRIEF: Deva A. Solomon, Robert L. Bailey, Steptoe & Johnson PLLC, Morgantown, West Virginia, for Appellant. Paul J. Harris, Harris Law Offices, Wheeling, West Virginia, for Appellee.

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer and Judge King joined.

AGEE, Circuit Judge:

Brandon Pegg sued West Virginia State Trooper Grant Herrnberger, alleging that Herrnberger used excessive force in effectuating the arrest of Pegg, in violation of state and federal law. Herrnberger appeals the district court's denial of his motion for summary judgment based upon that court's holding Herrnberger was not, as a matter of law, entitled to qualified immunity. For the reasons that follow, we reverse the district court's order denying Herrnberger's motion for summary judgment and remand with instructions to enter judgment in favor of Herrnberger.

I. Factual Background

On August 4, 2013, Herrnberger and another trooper, William Beck, were examining an abandoned vehicle on the side of the road when Brandon Pegg drove by slowly in his truck with the driver's side window open. Herrnberger noticed the truck had an expired inspection sticker and called out to Pegg to stop the vehicle. Pegg did not stop and sped away. The troopers then left in pursuit of Pegg's truck and eventually pulled him over.

Beck approached the driver's side of Pegg's vehicle to speak with Pegg while Herrnberger approached the passenger side to speak with the front passenger, Robert Beever. When Herrnberger asked to see Beever's identification, Pegg asked why Beever needed to produce identification.

Herrnberger contends that Pegg then reached for something between his legs, a claim Pegg denies. Herrnberger asserts that Pegg's reaching motion appeared suspicious, so he approached the driver's door and ordered Pegg out of his truck. Pegg complied and followed Herrnberger to the rear of Pegg's truck. Herrnberger then instructed Pegg to face the truck, put his hands behind his back, and lock his hands together. Before Pegg turned to face the truck, Herrnberger demonstrated how Pegg should lock his hands together.

Pegg placed his left hand at the small of his back and began to bring his right arm behind his back, but did not interlock his hands as instructed. Herrnberger grabbed Pegg's right arm. Pegg then turned and said "Why is this happening or something along those lines" to Herrnberger and pulled his right arm away from the trooper. J.A. 46. Herrnberger then pushed Pegg against the truck with his left arm, and attempted to pull Pegg's right arm back, which Pegg resisted. Herrnberger then took Pegg to the ground, and both troopers pinned Pegg there and handcuffed him in an event that took less than forty seconds before Pegg was helped to his feet. As a result, Pegg claims he suffered minor scrapes and abrasions on his head

, which he treated with peroxide and Neosporin, but did not seek medical attention.

The troopers arrested Pegg for assaulting a police officer (W. Va. Code § 61–2–10b(e) ), obstructing an officer (W. Va. Code § 61–5–17(a) ), and driving with an expired inspection sticker (W. Va. Code § 17C–16–9 ). Pegg was jailed for 8–12 hours before released. A magistrate judge dismissed the assault charge for lack of probable cause, and the prosecuting attorney dismissed the rest of the charges for reasons not apparent on the record.

Pegg then filed a complaint in the U.S. District Court for the Northern District of West Virginia against Herrnberger, individually and in his official capacity pursuant to 42 U.S.C. § 1983. The complaint alleged federal claims of unlawful arrest, retaliatory arrest, and excessive force, and state claims of outrage/intentional infliction of emotional distress and battery. Herrnberger filed a motion for summary judgment, arguing that the suit was barred against him in his official capacity based on sovereign immunity and in his individual capacity because of qualified immunity.

The district court granted Herrnberger's motion for summary judgment in part and denied it in part. All claims against Herrnberger in his official capacity were dismissed as barred by sovereign immunity. Pegg does not challenge the district court's ruling as to the official capacity claims.¹ The district court denied summary judgment for the claims against Herrnberger in his individual capacity, ruling he was not entitled to qualified immunity.

Herrnberger filed a timely appeal, and we have jurisdiction of the appeal under 28 U.S.C. § 1291. See Am. Civil Liberties Union, Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th Cir. 1993) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ) (stating questions of law surrounding qualified immunity are appealable as final decisions within the meaning of § 1291 ).

II. Analysis

"We review de novo a district court's denial of summary judgment and qualified immunity, construing all facts in the light most favorable to the nonmovant." Orem v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008). Thus, for purposes of our review here, we construe all facts in the light most favorable to Pegg as non-moving party. For issues concerning qualified immunity, we have jurisdiction to consider purely legal questions, but not over the district court's "determination that the summary judgment record in this case raised a genuine issue of fact" because that is not a final decision for purposes of 28 U.S.C. § 1291. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).² Put another way, "we possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiff's version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established law accepting the facts as the district court viewed them." Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997). Consequently, we accept the facts as the district court articulated them when it determined whether summary judgment was appropriate, and then we determine "whether, based on those facts, a reasonable person in the defendant's position could have believed that he or she was acting in conformity with the clearly established law at the time." Gray – Hopkins v. Prince George's Cty., 309 F.3d 224, 229 (4th Cir. 2002).

"Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful." Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). When evaluating whether a right was clearly established at the time of a violation, courts do not ask "whether the right allegedly violated was established ‘as a broad general proposition’ but whether ‘it would be clear to a reasonable official that his conduct was unlawful in the situation he confronted.’ " Raub v. Campbell, 785 F.3d 876, 882 (4th Cir. 2015) (quoting Saucier v. Katz, 533 U.S. 194, 201–202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ).

A. Qualified Immunity for Unlawful Arrest

The district court determined that Herrnberger's arrest of Pegg was unlawful because it believed Herrnberger did not "principally" arrest Pegg for the expired inspection sticker. Instead, the district court opined the arrest was "for obstructing an officer only after he asked [Herrnberger] a question during the traffic stop." J.A. 376.

Herrnberger denies that motivation and, in any event, argues that purported subjective reasons for arresting Pegg should not enter into the qualified immunity analysis because Pegg's violation of West Virginia law constituted probable cause for the arrest. Therefore, with probable cause to arrest, Herrnberger contends he is entitled to qualified immunity. We agree with Herrnberger.

The Supreme Court has stated unequivocally that "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). In Atwater, the arrestee committed a seat belt violation punishable only by a fine. Nonetheless, the Supreme Court held that the Fourth Amendment does not forbid a warrantless arrest for such a minor violation. Id.

Here, Pegg admits that his vehicle had an expired inspection sticker in violation of West Virginia law.³ See W. Va. Code § 17C–16–9. Further, he admits this violation occurred in Herrnberger's presence. Therefore, just as in Atwater, though Pegg's offense was minor, the Fourth Amendment does not forbid a warrantless arrest for such a violation.

The Supreme Court specifically rejected in Atwater the argument Pegg makes here: that the Fourth Amendment would forbid "custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time...." Atwater, 532 U.S. at 346, 121 S.Ct. 1536. Under Atwater, therefore, whether or not a § 17C–16–9 violation is a jailable offense is irrelevant for purposes of the application of qualified immunity.

Pegg attempts to distinguish Atwater by arguing that unlike the Texas seatbelt statute at issue in that case, § 17C–16–9 is not an offense subject to a custodial arrest or punishable by incarceration. He argues that § 17C–16–9 is not among the list of traffic offenses that a separate statute, § 17C-19-3, enumerates as warranting arrest. But that...