W. Va. Div. of Natural Res. v. Dawson

• Citation: 832 S.E.2d 102,242 W.Va. 176
• Decision Date: 03 June 2019
• Docket Number: No. 18-0026,18-0026
• Court: Supreme Court of West Virginia
• Parties: WEST VIRGINI A DIVISION OF NATURAL RESOURCES, Jerry Jenkins, Bradford Debord, and Stephen Antolini, Defendants Below, Petitioners v. Steven DAWSON and Angela Dawson, Plaintiffs Below, Respondents

242 W.Va. 176

832 S.E.2d 102

WEST VIRGINI A DIVISION OF NATURAL RESOURCES, Jerry Jenkins, Bradford Debord, and Stephen Antolini, Defendants Below, Petitioners

v.Steven DAWSON and Angela Dawson, Plaintiffs Below, Respondents

No. 18-0026

Supreme Court of Appeals of West Virginia.

Submitted: March 13, 2019

Filed: June 3, 2019

Keith C. Gamble, Nathan A. Carroll, Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Morgantown, West Virginia, Attorneys for the Petitioners

Jerry D. Moore, Jared T. Moore, The Moore Law Firm, PLLC, Franklin, West Virginia, Attorneys for the Respondents

Jenkins, Justice:

The Petitioners, the West Virginia Division of Natural Resources ("the DNR"); and Jerry Jenkins ("Col. Jenkins"),¹ Bradford DeBord ("Maj. DeBord"),² and Stephen Antolini ("Sgt. Antolini")³ (collectively "the DNR employees"), appeal a December 8, 2017 order of the Circuit Court of Hampshire County that denied their motion for summary judgment on the ground of qualified immunity. In the underlying civil action filed by Respondent, Steven Dawson ("Mr. Dawson")⁴ , Mr. Dawson alleged that his former employer, the DNR, and its employees, Col. Jenkins, Maj. DeBord, and Sgt. Antolini, "committed alleged acts of defamation, false light, infringement of a liberty interest without due process, and reckless infliction of emotional distress, along with claims of loss of consortium and punitive damages." On the DNR’s and the DNR employees’ motion for summary judgment asserting qualified immunity, the circuit court found that there is a genuine issue of material fact as to whether Mr. Dawson’s liberty interest was implicated, and, if so, whether he was afforded due process; whether the DNR and the DNR employees were in violation of Mr. Dawson’s clearly established rights of which a reasonable person would have known; whether the DNR and the DNR employees acted maliciously in their investigation of Mr. Dawson; and whether the actions of the DNR employees were within the scope of their employment.

On appeal, the DNR and the DNR employees raise the following issues: (1) the circuit court erred by failing to find qualified immunity because (a) there is no evidence of a violation of any clearly established statutory or constitutional right or law of which a reasonable person would have known, and (b) there is no evidence of conduct on behalf of the DNR and the DNR employees that could be characterized as fraudulent, malicious, or oppressive; (2) no genuine issues of material fact existed, and no reasonable juror could find the DNR employees acted outside their official capacity as DNR officers; and (3) the circuit court improperly found that the DNR and the DNR employees’ motion for summary judgment, filed after the close of discovery, was inconsistent with the provisions of Maston v. Wagner , 236 W. Va. 488, 781 S.E.2d 936 (2015), which encourages a ruling on qualified immunity early in the proceedings.

Having considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, we find no error in the circuit court’s decision that there are genuine issues of material fact as to whether the DNR and the DNR employees’ acts or omissions were fraudulent, malicious, or oppressive and whether the individual DNR employees acted outside of their scope of employment. We further find no error in the circuit court’s findings regarding the timing of the motion for summary judgment. Therefore, we affirm as to those three issues. However, we find that the Dawsons cannot demonstrate a violation of a clearly established statutory or constitutional right or law of which a reasonable person would have known. Accordingly, we reverse the circuit court’s decision as to that issue and direct the circuit court to enter summary judgment in favor of the DNR and the DNR employees as to that issue only and remand for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

In summer 2014, the DNR was investigating the offenses of illegal bear hunting and prohibited driving of motor vehicles within the Nathanial Mountain Wildlife Management Area ("WMA") in Hampshire County, West Virginia. Mr. Dawson was employed by the DNR as a natural resources police officer. Although Mr. Dawson was assigned to Hardy County, West Virginia, he assisted the Hampshire County investigation at the request of DNR Officer Terry Srout ("Officer Srout"). On September 7, 2014, Officer Srout and Mr. Dawson placed two game-trail cameras in the WMA.⁵ The cameras were set along trails where they believed there was illegal driving activity. Officer Srout and Mr. Dawson retrieved the cameras on September 21, 2014. One camera, a Moultrie-brand camera (the "Moultrie Camera"), contained eleven photos that showed two vehicles: (1) a gray/silver Dodge truck, that the investigating officers determined belonged to Ralph Buckley, and (2) a white Sport Utility Vehicle. Upon inspection of the second camera, a Bushnell-brand camera (the "Bushnell Camera"), it was discovered that the memory card was missing. However, upon further inspection, Officer Srout discovered that the Bushnell Camera did contain twelve photos that were saved to the internal drive. The photos were timestamped, but the dates and times did not correspond with the time the Bushnell Camera had been deployed by Officer Srout and Mr. Dawson. According to the circuit court, "[t]hese photos reveal a person very close to the lens of the camera, with the individual’s clothing visible. It also appears that a hand is covering or shielding the camera lens."

Mr. Dawson contends that he and other investigating officers believed that the driver of the Dodge truck was Ralph Buckley and he stole the memory card from the Bushnell Camera. They obtained a search warrant based upon that belief from the Hampshire County Magistrate Court.⁶ Mr. Dawson had been the one to complete the search warrant affidavit. Once Mr. Dawson obtained the search warrant, he and the other investigating officers attempted to execute it at the Buckley residence; however, Ralph Buckley was not home. Mr. Dawson then called Jeremy Buckley, Ralph Buckley’s son, and informed him that he had a search warrant for Ralph Buckley’s property. Ralph Buckley returned home and spoke to Mr. Dawson. At some point, Mr. Dawson had an opportunity to observe the bed of Ralph Buckley’s truck and discovered that the striations of the truck bed were dissimilar to those captured by the Bushnell Camera. Because of this observation, Mr. Dawson chose not to execute the search warrant and, instead, wrote Ralph Buckley a ticket for driving in the WMA and conspiracy to drive within the WMA based on the photographs retrieved from the Moultrie Camera. Mr. Dawson did not issue a citation to Jeremy Buckley out of concern that it might affect his job as a federal correctional officer.

On or about December 28, 2014, Ralph Buckley and his son, Jeremy Buckley, filed a Professional Standards Unit ("PSU") complaint against Mr. Dawson, Officer Srout, and another officer involved in the acquisition of the search warrant. The PSU complaint alleged that the officers failed to obey the laws governing DNR officers and that Mr. Dawson used false information to obtain the search warrant. Sgt. Antolini, a PSU investigator, was officially assigned to the investigation on January 8, 2015, by Maj. DeBord.

The DNR and the DNR employees contend that Sgt. Antolini conducted a thorough investigation from January 8, 2015 to February 7, 2015, including interviewing Mr. Dawson twice; presenting Mr. Dawson with a copy of the PSU complaint; interviewing the other officers named in the complaint, the complainants, and other witnesses; and visiting the location where the cameras were installed. Sgt. Antolini concluded that there was no evidence to support Mr. Dawson’s search warrant affidavit. Col. Jenkins then asked Sgt. Antolini to conduct a supplemental investigation, and Sgt. Antolini interviewed Mr. Dawson a third time. During that interview, evidence was again shown to Mr. Dawson, questions were asked by Sgt. Antolini, and Mr. Dawson agreed to undergo a polygraph examination. Sgt. James A. Hunt ("Sgt. Hunt") of the Charleston Police Department was engaged to conduct the polygraph examination of Mr. Dawson. The purpose of the exam was to ascertain if Mr. Dawson intended to be deceptive when he applied for the subject search warrant.

Sgt. Antolini’s supplemental report indicated that "Sgt. Hunt advised that a polygraph examination to determine whether Officer Dawson had lied would not be advisable due to the fact that an investigation had already been completed and sustained the information on the search warrant as false." The supplemental report also stated that Sgt. Hunt had "further explained that a polygraph examination regarding Officer Dawson’s intent at the time the search warrant was filed could be conducted even though that type of test was not routinely done."⁷ Sgt. Antoloni informed Sgt. Hunt that he would like to move forward with the polygraph examination. Sgt. Hunt performed the polygraph "[d]ue to requests from both the accused, and a party of interest[.]" Sgt. Hunt concluded that Mr. Dawson’s responses regarding his intent yielded "consistent and significant responses indicative of deceptive responses." Mr. Dawson resigned his employment immediately following the administration of the polygraph test.

After completing the supplemental investigation, the DNR and the DNR employees concluded that Mr. Dawson knowingly provided false or misleading information in an affidavit for a search warrant. On April 20, 2015, Maj. DeBord wrote to Jeremy Buckley concerning the results of the complaint and informed him that the complaint was sustained and that appropriate action had been taken. According to the Dawsons, once Jeremy Buckley received the letter, news of Mr. Dawson’s falsification of evidence in a search warrant affidavit spread quickly throughout the law...