STREET v. SANTIAGO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LOMMIA FAYE STREET, )

)

Plaintiff, )

)

v. ) 1:21-cv-941

)

JOHN SANTIAGO, )

TRAVIS J. NELLIS, and )

UNITED STATES OF AMERICA, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is Defendants’ Motion for Summary

Judgment, (Doc. 40). This matter is ripe for adjudication and,

for the reasons set forth herein, Defendants’ motion will be

granted in part and denied in part.

I. FACTUAL BACKGROUND

Plaintiff’s claims for relief arise out of a series of

events that occurred at a Veterans Affairs clinic (“VA clinic”)

in Kernersville, North Carolina on June 12, 2019. (Aff. of

Lommia Faye Street (“Pl.’s Aff.”) (Doc. 47) ¶¶ 2–3.)

On this date, Plaintiff visited the VA clinic to attend an

appointment with her physician. (Id. ¶ 3.) Upon arrival,

Plaintiff sought to use a check-in kiosk in the clinic’s lobby

to register for her upcoming appointment. (Id. ¶ 5.) As

Plaintiff waited to use a kiosk, a man — later identified as Lt.

Colonel Cummings — “cut in front of [Plaintiff] and began to use

a kiosk that had been vacated.” (Id.) Plaintiff stepped forward,

engaged in conversation with Cummings, and then ejected his VA

identification card from the kiosk. (Id.) Cummings retrieved his

card from Plaintiff and walked away. (Id.)1

After Cummings walked away, Plaintiff sought to use the

kiosk herself and elicited assistance from a VA volunteer, Karin

Dalkey. (Id. ¶ 6.) While receiving assistance, Plaintiff

discussed with Ms. Dalkey her incident with Cummings, but told

Ms. Dalkey that “it was over,” and “to forget it.” (Id. ¶ 9.)

It is unclear who relayed news of the incident to the

police dispatch, but shortly thereafter, John Santiago – a

police officer stationed at the VA clinic – received “a report

from dispatch that a female veteran had reported being assaulted

by another veteran in the lobby.” (Defs.’ Ex. 2, Aff. of John

1 Plaintiff and Defendants offer differing facts and

conclusions about Plaintiff’s interaction with Cummings at the

kiosk. This court is bound to consider the parties’ properly

supported factual allegations but declines to adopt unsupported

conclusions. For example, Plaintiff, in her affidavit, contends

that “[t]he video shows that I calmly engaged in a conversation

with Cummings.” (Pl.’s Aff. (Doc. 47) ¶ 5.) Although the video

may show that Plaintiff did not punch or hit Cummings, the video

has no sound and therefore does not show whether Plaintiff

“calmly engaged” with Cummings. To the contrary, the facts show

that Plaintiff, without permission, removed Cummings’ card from

the kiosk, an act which does not suggest that Plaintiff “calmly

engaged” with Cummings.

Santiago (“Santiago’s Aff.”) (Doc. 41-1) at ¶¶ 2–3.) Santiago

traveled to the lobby and spoke briefly with Ms. Dalkey, where

she advised him that “a female veteran wanted to report an

assault on her by another veteran.” (Id. ¶ 4). Santiago then

located Plaintiff in the lobby and initiated a conversation with

her. (Id. ¶ 5). These facts are not disputed.2

Santiago attests that during his initial conversation with

Plaintiff in the lobby, she informed him that “a veteran” had

“aggressively grabbed” her wrist and threatened her. (Id.)

Plaintiff attests, meanwhile, that she told Santiago “to forget

about” the incident. (Pl.’s Aff. (Doc. 47) ¶ 9.) Notably,

Plaintiff does not dispute that she told Santiago a veteran had

“aggressively grabbed her wrist.” (See Santiago’s Aff. (Doc. 41-

1) ¶ 5.)

2 Plaintiff asserts that she “did not tell Ms. Dalkey that

[she] wanted to report an assault.” (Pl.’s Aff. (Doc. 47) ¶ 9.)

However, Ms. Dalkey, and other witnesses in the lobby, were

still free to report to dispatch what they perceived to be a

disturbance in the lobby. Plaintiff does not offer any evidence

to dispute what Santiago attests Dalkey told him about Plaintiff

wanting to report an assault after he was summoned to the lobby.

After this initial conversation in the lobby,3 Santiago

departed to review security footage of the altercation, (id. ¶

6), as well as to interview Mr. Cummings, (id. ¶ 9), the veteran

who purportedly “aggressively grabbed” Plaintiff’s wrist, (id. ¶

5). During this interview, Cummings informed Santiago that

Plaintiff had “yell[ed] at him while he was at a check-in kiosk,

and then took his veteran identification card out of the kiosk

3 The parties appear to disagree about whether this initial

lobby conversation between Santiago and Plaintiff took place

over one or two parts.

Plaintiff’s affidavit acknowledges only one initial

conversation in the lobby. (Compare Pl.’s Aff. (Doc. 47) ¶ 9

(referencing “the first conversation” with Santiago in the

lobby), with id. ¶ 11 (describing Plaintiff’s later

confrontation with Santiago by the clinic’s entrance); see also

Pl.’s Resp. (Doc. 46) at 6 (“There was a delay of more than an

hour and a half between the time Santiago first spoke with

Street and the time he confronted her [by the entrance to the

clinic].”)).

Santiago contends that he initially conversed with

Plaintiff in the lobby, departed momentarily to review security

footage, and then returned to the lobby shortly thereafter for a

second conversation in which he informed Plaintiff that he “did

not see an assault on the video” but that he would “continu[e]

to review videos from other cameras” and “also speak with Mr.

Cummings.” (Santiago’s Aff. (Doc. 41-1) ¶¶ 5–8.) After this

second initial conversation in the lobby, Santiago contends he

departed to interview Cummings and later located Plaintiff by

the clinic’s entrance. (Id. at ¶¶ 9–10.) This later encounter by

the clinic’s entrance escalated into a physical confrontation

and is the basis of Plaintiff’s claims.

The parties’ apparent dispute about whether the initial

lobby conversation occurred in one or two parts is immaterial.

This memorandum opinion will refer to the “initial encounter in

the lobby” (without making the finding of whether it occurred in

one or two parts) and the “later encounter by the clinic’s

entrance.”

he was using.” (Id. ¶ 9) Additionally, Cummings stated that he

“took his identification card back” from Plaintiff and told her

he would “report her to the police” if she took it again. (Id.)

These facts about Santiago’s interview with Cummings are

undisputed.

After Santiago interviewed Cummings and reviewed the

security footage,4 he sought out Plaintiff “to speak with [her],”

and located her near the entrance of the clinic. (Id. ¶ 10;

Pl.’s Aff. (Doc. 47) ¶ 11.) After roughly two minutes of

conversation, (Pl.’s Aff. (Doc. 47) ¶ 11), Plaintiff attempted

to leave, but Santiago positioned his body in front of Plaintiff

to block her exit, (id. ¶¶ 12–13). A physical confrontation

ensued and resulted in Plaintiff being handcuffed and arrested

by Santiago. (Id. ¶¶ 22, 26; Santiago’s Aff. (Doc. 41-1) ¶ 21.)

After arresting Plaintiff, Santiago “had concerns regarding

her mental health” due to her “belligerence and aggressive

behavior,” and escorted Plaintiff “to the mental health

reception area [(of the VA clinic)] for an assessment.”

(Santiago’s Aff. (Doc. 41-1) ¶ 22.) Plaintiff was assessed by

“Dr. Herman Diggs, a VA psychologist,” (id. ¶ 23), and then was

issued a citation for her criminal charges and released. (Id. ¶

4 During the time that Santiago was interviewing Cummings

and reviewing security footage, Plaintiff was attending her

physician’s appointment. (Pl.’s Aff. (Doc. 47) ¶ 9.)

27; see also Pl.’s Aff. (Doc. 47) ¶ 36, 38.) Plaintiff asserts

that her time in custody, from arrest to release, took “many

hours.” (Pl.’s Aff. (Doc. 47) ¶ 35.)

The statements of probable cause for Plaintiff’s arrest

show that she was charged with disorderly conduct under 38

C.F.R. § 1.218(b)(11), (see Pl.’s Ex. 1, Administrative Claim

(Doc. 1-1) at 10), and delay, obstruct, and resisting an officer

under N.C. Gen. Stat. § 14-223, (see id. at 13).5 The statements

further show that those charges stemmed from her actions during

her encounter with Santiago near the clinic’s entrance, and not

from her earlier incident with Cummings at the kiosk in the

clinic’s lobby. (See id. at 10, 13.)

In addition to Plaintiff’s Verified Complaint, (Compl.

(Doc. 1)), several exhibits are before this court for review at

summary judgment: Plaintiff’s affidavit, (Pl.’s Aff. (Doc. 47));

Officer Santiago’s affidavit, (Santiago’s Aff. (Doc. 41-1)); and

Plaintiff’s administrative claim, (Pl.’s Ex. 1, Administrative

Claim (Doc. 1-1)), which includes the statements of probable

cause for her arrest, (id. at 10, 13), as well as Officer

Santiago’s and Lieutenant Nellis’s contemporaneous reports about

her arrest, (id. at 28–44). Plaintiff and Defendants also

5 On December 23, 2019, both charges were dismissed with

prejudice. (See Pl.’s Ex. 1, Administrative Claim (Doc. 1-1) at

15, 19.)

submitted security video footage that depicts Plaintiff’s

initial incident with Cummings in the VA lobby as well as her

later encounter with Santiago near the entrance to the clinic.

(See Pl.’s Ex. 3, Video Recordings (Doc. 1-3); Pl.’s Notice of

Manual Filing (Doc. 4); Defs.’ Br. in Supp. of Mot. for Summ. J.

(“Defs.’ Br.”) (Doc. 41) at 2; Defs.’ Notice of Manual Filing

(Doc. 42).)6

Additional facts will be identified and addressed as

necessary in the analysis to follow.

II. PROCEDURAL HISTORY

Plaintiff filed her Verified Complaint on December 8, 2021,

asserting five claims for relief: (1) Assault and Battery

(against Santiago), (2) False Imprisonment (against Santiago and

Nellis), (3) Malicious Prosecution (against Santiago and

Nellis), (4) an unconstitutional seizure and use of force claim

under the Fourth Amendment (against Santiago and Nellis), and

6 The parties do not dispute that the videos submitted by

each side are copies of one another, and authentic, despite that

some of the videos are rotated or zoomed, and some are not.

Throughout this Memorandum Opinion, the court will primarily

cite to two videos: (1) Defs.’ Video 1 Entitled “CHECK-IN (MAIN

LOBBY)-2019-06-12-Hand grab at kiosk” and (2) Defs.’ Video 4

Entitled “MAIN ENT W SIDE-2019-06-12-Kilo2 hands on.” (See

Defs.’ Br. (Doc. 41) at 2.) However, this court views the video

evidence, and draws inferences therefrom, “in the light most

favorable” to Plaintiff. See Sedar v. Reston Town Ctr. Prop.,

LLC, 988 F.3d 756, 761 (4th Cir. 2021).

(5) a Bivens claim (against Santiago and Nellis). (See Compl.

(Doc. 1) at 6–9.)

Defendants filed a motion titled “Notice of Substitution,”

(Doc. 17), on April 27, 2022, requesting that the United States

of America be substituted as the defendant in place of Santiago

and Nellis for Claims I through IV. A magistrate judge in this

district filed an order granting that substitution for Claims I

through IV and announced that “Defendants Santiago and Nellis

still remain as individual Defendants on the Bivens claims in

Count V.” (Doc. 23 at 1.)

Defendants filed a Motion to Dismiss on May 9, 2022. (Doc.

20.) This court issued a Memorandum Opinion and Order on March

7, 2023, granting in part and denying in part that motion. (Mem.

Op. and Order (Doc. 27).) This court granted the motion as to

Plaintiff’s claim for Malicious Prosecution (Claim III). (Id.)

It also held that Plaintiff’s Bivens claim (Claim V) was

duplicative of her standalone Fourth Amendment claim (Claim IV).

(Id.) It denied the motion as to Plaintiff’s other claims,

allowing the parties to proceed to discovery on Plaintiff’s

claims for Assault and Battery and False Imprisonment against

the United States, as well as her Fourth Amendment Bivens claim

for excessive force against Santiago.

Following discovery, on March 15, 2024, Defendants filed a

Motion for Summary Judgement, (Doc. 40), and a brief in support

of that motion, (Defs.’ Br. (Doc. 41)). Plaintiff responded in

opposition to the motion, (Pl.’s Br. in Opp’n to Defs.’ Mot. for

Summ. J. (“Pl.’s Resp.”) (Doc. 46)), and Defendants replied,

(Defs.’ Reply Br. in Supp. of Mot. for Summ. J. (“Defs.’ Reply”)

(Doc. 48)).

III. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This court's

summary judgment inquiry is whether the evidence “is so one-

sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). The moving

party bears the initial burden of demonstrating “that there is

an absence of evidence to support the nonmoving party's

case.” Celotex Corp., 477 U.S. at 325. If the “moving party

discharges its burden . . . , the nonmoving party then must come

forward with specific facts showing that there is a genuine

issue for trial.” McLean v. Patten Cmtys., Inc., 332 F.3d 714,

718–19 (4th Cir. 2003) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “Conclusory or

speculative allegations do not suffice” to defeat

a motion for summary judgment. Thompson v. Potomac Elec. Power

Co., 312 F.3d 645, 649 (4th Cir. 2002). Summary judgment should

be granted “unless a reasonable jury could return a verdict for

the nonmoving party on the evidence presented.” McLean, 332 F.3d

at 719.

IV. ANALYSIS

This court previously noted that each of Plaintiff’s claims

to survive 12(b)(6) is “predicated upon an initial unlawful

detention by Santiago.” (Mem. Op. and Order (Doc. 27) at 8.)

Preliminary to the question of whether a detention is unlawful

is the question of when that detention occurred.

At the 12(b)(6) stage, Defendants appeared to concede that

Santiago’s detention of Plaintiff began the moment he approached

her for a follow-up encounter near the clinic’s entrance. (See

Doc. 22 at 14 (“[Santiago] was fulfilling his duty to

investigate the [dispute at the kiosk] when he approached

Plaintiff and detained her initially for less than 2

minutes.”).) This court denied Defendants’ Motion to Dismiss,

finding that it could not “determine from the record what

historical facts were known to Santiago at the time of the

detention,” and thus, could not evaluate whether the detention

was “reasonable.” (Mem. Op. and Order (Doc. 27) at 13.)

At summary judgment, both parties offer new evidence and

arguments about the facts that were known to Santiago at the

time, but appear to again agree that this encounter was a Terry

stop from its outset and that its lawfulness should be analyzed

under the “reasonable suspicion” standard of the Fourth

Amendment based on the facts known to Santiago in the moment the

encounter by the entrance began. (See Defs.’ Br. (Doc. 41) at

12–16; Pl.’s Resp. (Doc. 46) at 11–18.)

Determining the temporal beginning of Plaintiff’s detention

is necessary to deciding what facts were known to Santiago at

that time, and whether those facts create reasonable suspicion

necessary to conduct a lawful detention. After careful review of

the record and application of the legal standard discussed

below, see United States v. Jones, 678 F.3d 293, 298–300 (4th

Cir. 2012), this court finds that Santiago’s detention of

Plaintiff did not occur until roughly two minutes into their

follow-up encounter near the clinic’s entrance.

A. Santiago’s conversation with Plaintiff near the

clinic’s entrance began as a consensual police-citizen

encounter and transformed into a detention roughly two

minutes into the encounter.

Under the Fourth Amendment, “[p]olice-citizen encounters

that are consensual require no justification.” Id. at 299. Only

“those that are not consensual impose a detention on a citizen

and so must be supported by an officer's reasonable, articulable

suspicion.” Id.

“As a general matter, law enforcement officers do not

effectuate a detention or seizure merely by approaching

individuals on the street or in other public places and putting

questions to them.” Id. (internal quotation marks and citation

omitted). “[I]n order to determine whether a particular

encounter constitutes a seizure, a court must consider all the

circumstances surrounding the encounter to determine whether the

police conduct would have communicated to a reasonable person

that the person was not free to decline the officers' requests

or otherwise terminate the encounter.” Id. “This reasonable

person standard is an objective one, thus, its proper

application is a question of law.” Id. (internal quotation marks

and citations omitted). Courts consider the “totality of

circumstances” when deciding whether a reasonable person would

believe they are not free to leave. Id. at 300.7

After Santiago initially conversed with Plaintiff about the

kiosk incident, he departed to review security footage and

interview Cummings, and then again located Plaintiff near the

clinic’s entrance and approached her for a follow-up

conversation. (Santiago’s Aff. (Doc. 41-1) ¶¶ 5–6, 9–10; Pl.’s

Aff. (Doc. 47) ¶¶ 10–11.)8

Plaintiff recounts in her affidavit that she and Santiago

“calmly converse[d] for about two minutes.” (Pl.’s Aff. (Doc.

47) ¶ 11.) Plaintiff informed Santiago “that [she] was looking

7 Factors the Fourth Circuit considers include:

(i) the number of police officers present; (ii)

whether the police officers were in uniform; (iii)

whether the police officers displayed their weapons;

(iv) whether they touched the defendant or made any

attempt to physically block his departure or restrain

his movement; (v) the use of language or tone of voice

indicating that compliance with the officer's request

might be compelled; (vi) whether the officers

informed the defendant that they suspected him of

illegal activity rather than treating the encounter

as routine in nature; and (vii) whether, if the

officer requested from the defendant ... some form of

official identification, the officer promptly

returned it.

United States v. Peters, 60 F.4th 855, 862–63 (4th Cir.

2023).

8 Plaintiff explains in her affidavit that she was waiting

near the clinic’s entrance because her physician, Dr. Stanley,

had noticed that Plaintiff was still “upset” by the incident

with Cummings during their appointment and “agreed to arrange

for a uniformed escort so that [Plaintiff] could exit the clinic

safely.” (Pl.’s Aff. (Doc. 47) ¶ 10.)

for an escort to [her] car.” (Id.) Plaintiff states that

Santiago “did not acknowledge” her statement and, rather,

“lectured” her about “show[ing] proper respect for Cummings.”

(Id.) She also states that he “did not ask [her] any questions,”

“did not ask [her] for identification,” and did not indicate

“that he was investigating any crime, or that he suspected [her]

of committing any crime.” (Id.) Finally, “Santiago did not tell

[her] that [she] was not free to leave.” (Id. ¶ 12.) Once

Plaintiff “got tired” of the conversation and “realized that

Santiago did not intend to escort [her] to [her] car,” she

“completed the conversation and tried to go to [her] car.” (Id.)

As she attempted to leave, “Santiago blocked [her] from leaving

by physically restraining [her]” and “would not allow [her] to

leave.” (Id. ¶ 13.)

In his own affidavit, Santiago describes the first two

minutes of his encounter with Plaintiff as such: “After

[interviewing Cummings], I returned to the lobby to speak with

[Plaintiff], near the entrance of the clinic.” (Santiago’s Aff.

(Doc. 41-1) ¶ 10.) “I told [Plaintiff] that I was still

reviewing the security footage and that I had spoken with Mr.

Cummings.” (Id. ¶ 11.) “[Plaintiff] became irate and began

cursing,” calling Santiago a “piece of shit fuckface,” among

other insults. (Id.) Santiago asserts that he “attempted to

deescalate the situation,” (id.), but that after he “cautioned

[Plaintiff] that she did not have the right to take [Cummings’]

identification card,” she “became belligerent” and “continued

cursing and began screaming,” such that she was “heard by VA

staff and other veterans throughout the lobby and in nearby

departments.” (Id. ¶ 12.) Santiago “requested [Plaintiff’s]

identification information,” but she “refused to provide [it]

and continued to cause a disturbance . . . and then attempted to

leave.” (Id. ¶ 13.) At this moment, Santiago “decided to

temporarily detain [Plaintiff]” and “advised [her] that she was

not free to leave.” (Id. ¶ 14.)

Squaring each party’s recounting of the first two minutes

of their encounter, it is uncontroverted that Santiago

approached Plaintiff by the clinic’s entrance and initiated

conversation about her earlier incident with Cummings at the

kiosk. (Pl.’s Aff. (Doc. 47) ¶ 11; Santiago’s Aff. (Doc. 41-1)

¶¶ 10–11.) It is also uncontroverted that roughly two minutes

into the conversation, Plaintiff attempted to leave, and

Santiago positioned his body to block her departure, (Pl.’s Aff.

(Doc. 47) ¶¶ 12–13; Santiago’s Aff. (Doc. 41-1) ¶ 14), which led

to a physical confrontation that culminated in Plaintiff’s

arrest, (Pl.’s Aff. (Doc. 47) ¶¶ 13–14; Santiago’s Aff. (Doc.

41-1) ¶¶ 17–21).

The video footage submitted by the parties corroborates the

parties’ timeline in that, for roughly one minute and forty-five

seconds, Santiago and Plaintiff engaged in conversation near the

clinic’s entrance before Plaintiff appears to try to step around

Santiago to depart. (See Defs.’ Video 4 Entitled “MAIN ENT W

SIDE-2019-06-12-Kilo2 hands on” at 00:05-01:50.) As Plaintiff

attempted to depart, Santiago blocked her exit. (Id. at 01:50-

4:30.)

This court finds that the follow-up encounter near the

entrance was initially consensual, and Plaintiff was not

“detained” within the meaning of the Fourth Amendment until

approximately two minutes into the interaction when she

attempted to depart, and Santiago positioned his body to

physically block her exit. See Torres v. Madrid, 592 U.S. 306,

325 (2021) (holding that an officer’s use of physical force with

intent to restrain effectuates a seizure).

By Plaintiff’s recounting, during the first two minutes,

Santiago did not ask her questions, did not ask for

identification, did not indicate that he was investigating a

crime, and did not tell her that she was not free to leave. (See

Pl.’s Aff. (Doc. 47) ¶¶ 11–12.) While an officer need not engage

in each of these actions to effectuate a detention, the absence

of all of them cuts sharply in favor of this being a consensual

encounter. Santiago’s description of the first two minutes also

reflects a consensual encounter. He asserts that he conversed

back and forth with Plaintiff during those two minutes, (see

Santiago’s Aff. (Doc. 41-1) ¶¶ 11–12); see also Jones, 678 F.3d

at 299, before he “requested [her] identification information,”

she “attempted to leave,” and he “decided to temporarily detain”

her, (Santiago’s Aff. (Doc. 41-1) ¶¶ 13–14).

The only facts that point slightly in favor of the first

two minutes of the encounter constituting a detention are that

Santiago was dressed in uniform and was positioned between

Plaintiff and the exit. (See Defs.’ Video 4 Entitled “MAIN ENT W

SIDE-2019-06-12-Kilo2 hands on” at 00:05-01:50.) However,

whether an officer is in uniform is only one among many factors

a court considers in determining the line between a voluntary

encounter and a detention, see Peters, 60 F.4th at 862–63, and

here, although in uniform, Santiago approached Plaintiff alone –

a lesser show of force compared to situations where multiple

uniformed officers surround a suspect. Additionally, Santiago’s

positioning between Plaintiff and the doorway appears to be the

product of his walking up to and greeting Plaintiff where she

happened to be standing at that moment, rather than any

concerted effort on his part to block her or otherwise signal

that she was not free to leave. (See Defs.’ Video 4 Entitled

“MAIN ENT W SIDE-2019-06-12-Kilo2 hands on” at 00:05.)

In sum, considering the totality of the circumstances, a

“reasonable person” would not believe that Santiago’s conduct

during the first part of the encounter meant that Plaintiff was

not free to leave. It was only when Santiago began to physically

block Plaintiff’s departure, roughly two minutes into their

conversation, that the encounter transitioned into a detention.

Cf. Peters, 60 F.4th 855, 863 (finding that two uniformed

officers approaching a suspect, with service weapons holstered,

speaking in “stern” and “authoritative” tones, did not

effectuate a detention until the moment, roughly a minute into

the encounter, when one of the officers “threatened to exercise

his authority to take [the suspect] to jail for trespass and

suggested that [the suspect] should consent to a pat down”).

B. At the time of this detention, Santiago possessed

reasonable suspicion that Plaintiff had been involved

in criminal activity during her earlier incident with

Cummings at the VA lobby kiosk.

“To be constitutional, a warrantless investigatory

detention generally requires a reasonable and articulable

suspicion that the person seized is engaged in criminal

activity.” Walker v. Donahoe, 3 F.4th 676, 682 (4th Cir. 2021)

(internal quotation marks and citations omitted). Reasonable

suspicion requires “more than an inchoate and unparticularized

suspicion or hunch of criminal activity” but is “a low bar” that

requires “a showing considerably less than preponderance of the

evidence.” United States v. Smart, 91 F.4th 214, 223 (4th Cir.

2024) (internal quotation marks and citations omitted). “To

establish a reasonable suspicion of criminal activity, an

officer must identify specific and articulable facts that

demonstrate at least a minimal level of objective justification

for the belief that criminal activity is afoot.” Id. (internal

quotation marks and citations omitted). In deciding whether an

officer possessed reasonable suspicion of criminal activity, a

court assesses the facts, “both individually and in their

totality,” that were known to the officer at the time of the

detention. Id.

Defendants argue that Santiago’s detention of Plaintiff was

constitutional because he possessed reasonable suspicion that

she had been involved in criminal activity during her prior

incident with Cummings at the kiosk. (Defs.’ Br. (Doc. 41) at

14–15.) The information known to Santiago about Plaintiff’s

prior incident with Cummings is reflected in the following

facts:

Santiago received “a report from dispatch that a female

veteran had reported being assaulted by another veteran in the

lobby [(of the VA clinic)].” (Santiago’s Aff. (Doc. 41-1) ¶ 3.)

Santiago reported to the lobby where a VA volunteer (Karin

Dalkey) informed him that “a female veteran” (Plaintiff) “wanted

to report an assault on her by another veteran” (Lt. Colonel

Cummings). (Id. ¶ 4.)

Santiago located Plaintiff in the lobby and initiated a

conversation. (Id. ¶ 5.) According to Santiago, Plaintiff stated

that Cummings had “aggressively grabbed her wrist” and

threatened her. (Id.) Plaintiff attests that she told "Santiago

to forget about” the incident, (Pl.’s Aff. (Doc. 47) ¶ 9), but

does not dispute that she told Santiago a veteran had

“aggressively grabbed her wrist,” (see generally id.).

After Santiago spoke with Plaintiff in the lobby, he

interviewed Cummings. Cummings informed Santiago that Plaintiff

“yell[ed] at him while he was at a check-in kiosk, and then took

his veteran identification card out of the kiosk he was using.”

(Santiago’s Aff. (Doc. 41-1) ¶ 9). Additionally, Cummings stated

that he “took his identification card back from” Plaintiff and

told her he would “report her to the police” if she took it

again. (Id.) Finally, Cummings stated that he had no further

contact with Plaintiff after this interaction at the kiosk.

(Id.)

Santiago also reviewed security video footage of the kiosk

incident. (See id. ¶¶ 6-7 (Specifically, Santiago reviewed the

video that has been referred to as “Video 1” throughout this

action.); see also Defs.’ Br. (Doc. 41) at 2.) The video footage

shows Plaintiff and Cummings standing side-by-side in the VA

clinic’s lobby in front of a line of kiosks, each apparently

waiting for other patrons to finish, and for a kiosk to open.

(Defs.’ Video 1 Entitled “CHECK-IN (MAIN LOBBY)-2019-06-12-Hand

grab at kiosk” at 00:03-00:12.) When a kiosk opened, Cummings

stepped forward to use it. (Id. at 00:12-00:15.) Plaintiff

followed closely behind Cummings, positioned herself adjacent to

Cummings and the kiosk, and engaged Cummings in conversation.

(Id. at 00:16-00:22.) Cummings took out his VA identification

card and inserted it in the kiosk. (Id. at 00:23-00:24.)

Plaintiff reached forward and removed his card from the kiosk.

(Id. at 00:28-00:29.) Almost simultaneously, Cummings also

reached forward and appeared to briefly grab, or brush,

Plaintiff’s wrist as he retrieved his identification card from

her clutch. (Id. at 00:29.) Plaintiff and Cummings exchanged

more words, (id. at 00:30-00:35), and then Cummings walked away,

circled around the lobby, and returned to the line of kiosks to

use a different kiosk while Plaintiff continued to use the kiosk

that was the source of their dispute, (id. at 00:35-01:15). In

total, the incident between Cummings and Plaintiff lasted around

nineteen seconds. (Id. at 00:16-00:35.)

After Santiago reviewed this video footage and completed

his interview with Cummings, he sought out Plaintiff “to speak

with” her and located her “near the entrance of the clinic.”

(Santiago’s Aff. (Doc. 41-1) ¶ 10.) Santiago’s conversation with

Plaintiff near the clinic’s entrance began as a voluntary

encounter, (see supra Section IV.A), but roughly two minutes

into the encounter, Santiago attempted to “temporarily detain

[Plaintiff] as part of [his] investigation.” (Id. ¶ 14.) In

accordance with the Fourth Amendment’s requirements for an

officer to conduct an investigatory detention, this court must

determine whether Santiago had “reasonable suspicion of criminal

activity,” Smart, 91 F.4th at 223, based upon the facts known to

him at the time regarding Plaintiff’s incident with Cummings at

the kiosk.9

9 There are no undisputed facts about Plaintiff’s conduct

during the two-minute voluntary encounter preceding her

detention that contribute to this court’s reasonable suspicion

analysis. For one, Santiago does not aver that he learned any

new facts about the kiosk incident during those two minutes.

(See generally Santiago’s Aff. (Doc. 41-1).) Two, while Santiago

attests that Plaintiff became “irate” and “belligerent” and

screamed curses and insults at him that caused a disturbance

“throughout the lobby” during those two minutes, (Santiago’s

Aff. (Doc. 41-1) ¶¶ 11–12), Plaintiff disputes this

characterization and asserts that she and Santiago “calmly

converse[d],” (Pl.’s Aff. (Doc. 47) ¶ 11), opining that she “had

not created any disturbance,” (id. ¶ 12). The video footage

submitted by the parties does not resolve these disputes. At

summary judgment, this court focuses its reasonable suspicion

inquiry on the facts that were known to Santiago before the

encounter occurred.

Defendants initially cited four facts that informed

Santiago’s decision to detain Plaintiff: (1) “Plaintiff had

reported being the victim of an assault, but the security video

that apparently captured the event she was referring to, did not

show any assault on her;” (2) Plaintiff “had briefly and

intentionally taken another veteran’s property without his

permission, and therefore Officer Santiago suspected her of

committing theft;” (3) Santiago “needed to properly identify

Plaintiff and run a warrants search;” and (4) Santiago “had

personally observed Plaintiff create a loud disturbance and

become disorderly in the lobby of the clinic.” (Defs.’ Br. (Doc.

41) at 14–15.)10 Based on the totality of circumstances,

Defendants contend “these facts easily amount to reasonable

suspicion.” (Id. at 15.)

Plaintiff argues in her response that Santiago already

possessed her identifying information prior to the detention

and, therefore, Santiago’s third cited fact — that he “needed to

properly identify Plaintiff and run a warrants search” — cannot

10 Although Defendants characterize these as four “facts,”

several of these “facts” appear to describe independent grounds

for an investigatory detention. For example, an analysis of the

second “fact” – that Santiago suspected Plaintiff of committing

theft – itself, requires analyzing all of the factual inferences

that can be drawn from the video footage, and from Cummings’

interview, to determine if Santiago possessed reasonable

suspicion of theft.

justify his decision to detain Plaintiff. (Pl.’s Resp. (Doc. 46)

at 9.) In reply, Defendants concede that Santiago’s plan to use

the stop to identify Plaintiff and run a warrants search is not

relevant to the analysis of “whether the stop was lawful in the

first place.” (Defs.’ Reply (Doc. 48) at 8.) Thus, Defendants

abandoned “identify[ing] Plaintiff and run[ning] a warrants

search” as a justification for the stop but maintain on reply

that the detention was based on “reasonable suspicion” that

Plaintiff was involved in three crimes: (1) a possible assault,

(2) a possible theft, and (3) possible disorderly conduct. (Id.

at 3.)

i. Suspicion of Assault

Proceeding with its analysis of Defendants’ three cited

grounds for Santiago’s decision to detain Plaintiff, this court

starts by noting that the first ground — Plaintiff’s involvement

in a possible assault — is inapposite to the other two in that

the “possible assault” was committed against Plaintiff rather

than by Plaintiff. Defendants’ position at summary judgment

concerning Plaintiff’s “involve[ment] in . . . a possible

assault,” and how this contributes to a reasonable suspicion

analysis, is not readily apparent to this court. (See Defs.’

Reply (Doc. 48) at 3.)

At the 12(b)(6) stage, Defendants argued that Santiago had

authority to stop Plaintiff because he needed to pursue

investigation into an alleged assault against Plaintiff. (See

Doc. 22 at 13–14; Doc. 26 at 2–4). In support of this argument,

Defendants cited to Brown v. Texas, 443 U.S. 47 (1979), and

Jones v. Alvarez, No. 1:19-cv-930, 2021 WL 796509, at *9

(M.D.N.C. March 2, 2021). (See Doc. 22 at 13–14.) To the extent

Defendants intend to revive this legal argument at summary

judgment, the record does not support their position.

In Brown v. Texas, police officers detained an individual

for the purpose of “requiring him to identify himself,” and the

Supreme Court found that a detention on these grounds

constitutes a Fourth Amendment seizure. See Brown, 443 U.S. at

50. In making this finding, the Court emphasized that the Fourth

Amendment “applies to all seizures . . . including seizures that

involve only a brief detention short of traditional arrest.” Id.

(citation omitted). It further advised: “The reasonableness of

seizures that are less intrusive than a traditional arrest

depends on a balance between the public interest and the

individual's right to personal security free from arbitrary

interference by law officers.” Id. (internal quotation marks and

citations omitted).

Although the Brown opinion focused on a seizure where the

detainee was suspected to be a perpetrator of criminal activity,

see id. at 51–52, as is typical for investigatory detentions,

some courts have since applied the factors articulated in Brown

to decide the lawfulness of “suspicionless stops,” or stops that

are conducted for reasons other than suspicion that the detainee

is perpetrating criminal activity. See, e.g., Lincoln v. Turner,

874 F.3d 833, 844 (5th Cir. 2017) (invoking the factors to

evaluate the lawfulness of a detention for a suspected witness

to a crime). The Brown factors include (1) “the gravity of the

public concerns served by the seizure,” (2) “the degree to which

the seizure advances the public interest,” and (3) “the severity

of the interference with individual liberty.” Brown, 443 U.S. at

50–51.

Following that approach, this court applied the Brown

factors in Jones v. Alvarez, 2021 WL 796509, at *9, and ruled

that the plaintiff in that case, Jones, had not plausibly

alleged an unconstitutional detention, id. Like here, the

circumstances of Jones’ detention “implicate[d] the authority of

law enforcement to detain an individual complaining of criminal

activity rather than one suspected of criminal activity.” Id.

Unlike here, Jones clearly initiated the encounter when he

approached the officer and “pleaded for help,” id., whereas

Plaintiff denies that she sought Santiago’s help and asserts,

instead, that she informed Santiago “to forget about [the

assault]” because “[i]t was over.” (Pl.’s Aff. (Doc. 47) ¶ 9.)

Defendants do not contest Plaintiff’s assertion.

Even beyond this distinction, other circumstances present

in Jones are not present here. In Jones, this court found that

(1) the gravity of the public concern was substantial because

Jones claimed to have been the victim of a “brutal” assault, (2)

the public interest was substantial because the officer needed

to identify Jones in order to initiate an investigation into

assault, and (3) the interference with Jones’s liberty was

minimal because Jones was simply commanded to remain in a

specified spot while the officer assessed what to do next.

Jones, 2021 WL 796509, at *9.

Meanwhile, here, the video footage reviewed by Santiago

shows that if there was an assault on Plaintiff when Cummings

briefly grabbed Plaintiff’s wrist to retrieve his card, that

assault was certainly not “brutal.” (Defs.’ Video 1 Entitled

“CHECK-IN (MAIN LOBBY)-2019-06-12-Hand grab at kiosk” at 00:29.)

Additionally, while Santiago claims he needed to “properly

identify [Plaintiff] and run a warrants check,” (Santiago’s Aff.

(Doc. 41-1) ¶ 13), he does not dispute Plaintiff’s assertion

that she had already “[given] Santiago [her] identification

information during the first conversation [she] had with him,”

(see Pl.’s Aff. (Doc. 47) ¶ 9), making the urgency of the

“public interest” less severe than in Jones. And finally, the

interference with Plaintiff’s liberty here was greater than in

Jones because Santiago detained Plaintiff by physically blocking

her, (Pl.’s Aff. (Doc. 47) ¶ 13), as opposed to by verbal

command, see Jones, 2021 WL 796509, at *9.

In sum, to the extent Defendants intended to reincorporate

their arguments concerning Brown and Jones at the summary

judgment stage, the record does not support a finding that a

“suspicionless stop” — conducted to pursue an ongoing

investigation into an alleged assault against Plaintiff — was

reasonable.

However, as mentioned above, it is not clear that

Defendants intended to revive their Brown and Jones argument at

summary judgment. Instead, at summary judgment, Defendants

emphasize that Santiago had already determined that Plaintiff

was not assaulted prior to confronting her by the entrance to

the clinic, which undermines any argument that this detention

was necessary to pursue an ongoing investigation into assault.

(See Defs.’ Br. (Doc. 41) at 15 (“[T]he security video . . . did

not show any assault on her.”); id. (“[Santiago] reviewed

security video of the event and determined the video not only

did not show an assault, it showed Plaintiff confronted the

other veteran and took his property without permission.”); see

also Defs.’ Reply (Doc. 48) at 4–5.)

Defendants’ position at summary judgment, it appears, is

not that investigating assault was a justification for

Plaintiff’s detention, but rather, that Santiago’s determination

prior to the detention that an assault did not occur, is a

factual point that supports his “reasonable suspicion” that

Plaintiff was the criminal wrongdoer. Restated, Defendants’

position seems to be that a reasonable officer viewing the

security footage would conclude that Plaintiff, not Cummings,

was the aggressor and criminal wrongdoer during the incident at

the kiosk. (See Defs.’ Reply (Doc. 48) at 5).)

Taking that position under advisement, this court proceeds

to its analysis of whether Santiago possessed reasonable

suspicion that Plaintiff committed crimes of theft and

disorderly conduct during her incident with Cummings at the

kiosk.

ii. Suspicion of Theft

Defendants argue that “Plaintiff had briefly and

intentionally taken another veteran’s property without his

permission, and therefore Officer Santiago suspected her of

committing theft.” (Defs.’ Br. (Doc. 41) at 15.) Santiago was

notified of a possible theft when Cummings informed Santiago

during his interview that Plaintiff “took his veteran

identification card out of [the] kiosk he was using.”

(Santiago’s Aff. (Doc. 41-1) ¶ 9.) Santiago also reviewed

security footage of the incident. (Id. ¶ 6.)

Plaintiff contends that Santiago’s suspicion of theft was

not reasonable. Specifically, Plaintiff argues that “Santiago

could not have formed a reasonable suspicion” because “at least

two of four essential elements of larceny [were] not met.”

(Pl.’s Resp. (Doc. 46) at 8–9.) Defendants reply that

“[r]easonable suspicion is a low bar,” (Defs.’ Reply (Doc. 48)

at 6 (quoting Smart, 91 F.4th at 223)), and that Plaintiff’s

focus on the elements of larceny “conflates showing reasonable

suspicion with proving the elements of a crime,” (id.).

Reasonable suspicion is a “less demanding standard than

probable cause.” United States v. Mitchell, 963 F.3d 385, 390

(4th Cir. 2020) (quoting Illinois v. Wardlow, 529 U.S. 119, 123

(2000)). Because even probable cause “does not require the same

type of specific evidence of each element of the offense as

would be needed to support a conviction,” Sennett v. United

States, 667 F.3d 531, 535 (4th Cir. 2012) (citation omitted), it

is true that Santiago need not “prov[e] the elements of [the]

crime” in order to meet the lower bar of reasonable suspicion.

(Defs.’ Reply (Doc. 48) at 6.) Instead, Defendants need only

“identify specific and articulable facts that demonstrate at

least a minimal level of objective justification for

[Santiago’s] belief” that Plaintiff committed a theft offense.

Smart, 91 F.4th at 223 (internal quotation marks and citations

omitted). The articulable facts drawn from Cummings’ interview

and the video footage provided Santiago with that objective

justification.

Under North Carolina law, larceny is “(1) the taking of the

property of another; (2) carrying it away; (3) without the

owner's consent; and (4) with the intent to permanently deprive

the owner of the property.” State v. Hill, 291 N.C. App. 633,

642, 896 S.E.2d 216, 223 (2023). “[T]he element of taking is

complete . . . at the moment a thief first exercises dominion

over the property.” State v. Sumpter, 318 N.C. 102, 111, 347

S.E.2d 396, 401 (1986); see also State v. Carswell, 296 N.C.

101, 104, 249 S.E.2d 427, 429 (1978) (explaining that “taking”

occurs when a thief has control of the item “even if only for an

instant”). Moreover, “[a] bare removal from the place in which

[a thief] found the goods, though the thief does not quite make

off with them, is a sufficient asportation, or carrying away.”

Carswell, 296 N.C. at 103, 249 S.E.2d at 428 (quoting 4 W.

Blackstone, Commentaries 231); see also id. at 104–05 (upholding

larceny conviction of a defendant who moved an air conditioner

“four to six inches” away from the spot where he found it).

Thus, even “the slightest taking and movement of property,” when

done without the owner’s consent and with the intent to

permanently deprive the owner, constitutes a larceny. See State

v. Barnes, 345 N.C. 146, 149–50, 478 S.E.2d 188, 191 (1996)

(citation omitted).

Plaintiff asserts in her affidavit that she “did not want

Cummings’ VA card” and that she merely “pulled his card out of

the kiosk, and offered it to [him],” (Pl.’s Aff. (Doc. 47) ¶¶ 5,

8). Plaintiff argues it was not reasonable for Santiago to

believe that she “carr[ied] the card away” or that she intended

“to deprive Cummings of his card permanently,” (Pl.’s Resp.

(Doc. 46) at 14).

However, Plaintiff’s assertions about her subjective intent

were not facts known to Santiago at the time of his decision to

detain Plaintiff. The relevant facts known to Santiago at the

time were (1) that Cummings had stated Plaintiff “took his

veteran identification card out of the kiosk he was using” and

that he “took [it] back from [her],” (Santiago’s Aff. (Doc. 41-

1) ¶ 9), not that she “offered it to [him],” (Pl.’s Aff. (Doc.

47) ¶ 5), and (2) the facts and reasonable inferences that can

be discerned from a review of the video footage.

Santiago asserts that his subjective conclusion from

reviewing the video footage was that “Cummings quickly grab[bed]

[Plaintiff’s] arm and retrieve[d] his card from her hand,”

(Santiago’s Aff. (Doc. 41-1) ¶ 7). However, the reasonable

suspicion standard is an objective one. This court finds that

Plaintiff’s actions at the kiosk – specifically, whether or not

she proactively offered the card back to Cummings — is not

readily discernable from the footage due to the brevity of the

exchange, graininess of the footage, and distant vantage point

of the security camera. (See Defs.’ Video 1 Entitled “CHECK-IN

(MAIN LOBBY)-2019-06-12-Hand grab at kiosk” at 00:28-00:29.)

Returning to the four elements of larceny, the footage

clearly establishes that Plaintiff took the property of another

(Element One) and carried it away (Element Two) when she grabbed

Cummings’ card out of the kiosk, even if this grab amounted to

only a “slight[] taking and movement of property.” See Barnes,

345 N.C. at 149–50, 478 S.E.2d at 191. Cummings’ interview

corroborated these facts. (See Santiago’s Aff. (Doc. 41-1) ¶ 9.)

It also provided Santiago with the fact that Plaintiff took the

card without Cummings’ consent (Element Three). (Id.) Thus, the

only element of larceny unsubstantiated by articulable facts

known to Santiago at the time was whether Plaintiff intended “to

permanently deprive” Cummings of the card. See Hill, 291 N.C.

App. at 642, 896 S.E.2d at 223.

Although the fourth element of larceny was not readily

discernible to Santiago, a reasonable officer in Santiago’s

shoes could still point to “specific and articulable facts that

demonstrate at least a minimal level of objective justification

for the belief” that Plaintiff committed larceny. See Smart, 91

F.4th at 223 (internal quotation marks and citations omitted)

(emphasis added). That is, three of the four elements of larceny

were plainly present. Questioning a suspect further about what

appears to be a theft — Santiago contends he advised Plaintiff

that taking the card was a theft. is the exact sort of

undertaking that an officer may pursue through an investigatory

detention. Here, the “low bar” of reasonable suspicion is met.

See id.

iii. Suspicion of Disorderly Conduct

Defendants also argue that Santiago possessed reasonable

suspicion that Plaintiff had committed a disorderly conduct

offense when she reportedly yelled at Cummings during the

incident at the kiosk. (Defs.’ Br. (Doc. 41) at 15; Defs.’ Reply

(Doc. 48) at 7–8.)

While Defendants do not cite a specific statute, this court

presumes that Santiago’s suspicion of disorderly conduct refers

to suspicion that Plaintiff violated 38 C.F.R. § 1.218.11 The

federal code prohibits “disorderly conduct” at VA facilities,

including “fighting, threatening, violent, or tumultuous

behavior, unreasonable noise or coarse utterance, gesture or

display or the use of abusive language to any person present.”

38 C.F.R. § 1.218(a)(14)(ii). It additionally prohibits

“[d]isorderly conduct which . . . tends to impede or prevent the

normal operation of a service or operation of the facility.” 38

§ 1.218(b)(11). The offense is a misdemeanor. See id.

(explaining that the penalties include arrest, removal, fine and

– in some cases – a term of imprisonment “not more than six

months”).

In their opening brief at summary judgment, Defendants

contended that “Officer Santiago had personally observed

Plaintiff create a loud disturbance and become disorderly in the

lobby of the clinic.” (Defs.’ Br. (Doc. 41) at 8 (citing

Santiago’s Aff. (Doc. 41-1) ¶ 15).) Plaintiff argued in response

that Santiago could not have “personally observed” Plaintiff’s

incident with Cummings in the lobby because, by his own

11 This suspected disorderly conduct offense — Plaintiff

reportedly yelling at Cummings at the kiosk — is distinct from

the disorderly conduct offense Plaintiff was eventually arrested

for and charged with under 38 C.F.R. § 1.218. Plaintiff’s arrest

resulted from her physical confrontation with Santiago near the

clinic’s entrance after he attempted to detain her.

admission, “he had to be summoned there by ‘dispatch.’” (Pl.’s

Resp. (Doc. 46) at 15–16.) In reply, Defendants concede that

Santiago was not physically present in the lobby to witness

Plaintiff’s incident with Cummings. Instead, Santiago’s

suspicion of Plaintiff’s disorderly conduct came from Cummings’

statement to Santiago “that Plaintiff had yelled at him.”

(Defs.’ Reply (Doc. 48) at 3; see also id. (clarifying that

Santiago’s suspicion of disorderly conduct came from what “the

other veteran [(Cummings)] had stated to him”).)

It is a close call whether Cummings’ statement to Santiago

“that Plaintiff had yelled at him” and “took his veteran

identification card,” alone, is sufficient to provide Santiago

with the reasonable suspicion “that Plaintiff may have been

disorderly and created a loud disturbance, thereby possibly

committing a misdemeanor offense.” (Defs.’ Reply (Doc. 48) at 7-

8; see also Santiago’s Aff. (Doc. 41-1) ¶ 9). However, the

weight of Cummings’ statement is augmented by the Fourth

Circuit’s recognition that face-to-face informants – like

Cummings – can be reliable sources of information for officers

because officers have “the opportunity to observe [their]

credibility and demeanor,” Mitchell, 963 F.3d at 394, and can

hold them “accountable for false statements[,]” id. at 393.

In addition to Cummings’ statement that Plaintiff yelled at

him and took his card, Santiago also reviewed video footage of

the kiosk incident. That footage, Plaintiff argues, cuts against

reasonable suspicion. (See Pl.’s Resp. (Doc. 46) at 16.)

Specifically, Plaintiff argues that the footage provides no

visible clues of a “loud disturbance,” because the surrounding

patrons “do not appear to be disturbed, distracted, or to even

notice the interaction between [Plaintiff] and Cummings.” (Id.)

However, the footage also confirms that Plaintiff grabbed

Cummings’ identification card out of the kiosk, which supports

the inference that Plaintiff acted in an aggressive manner and

caused at least some sort of disturbance in the lobby. Whether

Plaintiff’s actions as shown in the video footage fit neatly

into the definitions of “disorderly conduct” under the federal

regulation is unclear, but paired with Cummings’ statement that

Plaintiff “yell[ed]” at him, this court finds that Santiago

possessed reasonable suspicion that Plaintiff committed a

disorderly conduct offense. That is, Cummings’ statement, and

the video footage, together, provided Santiago with “specific

and articulable facts that demonstrate at least a minimal level

of objective justification” for the belief that Plaintiff

committed a misdemeanor disorderly conduct offense at the kiosk.

Smart, 91 F.4th at 223 (internal quotation marks and citations

omitted).

iv. Whether an officer can detain a suspect to

investigate completed offenses

It does not automatically follow that Santiago’s reasonable

suspicion of theft and disorderly conduct justified his

investigatory detention of Plaintiff. In this case, almost two

hours passed between Plaintiff’s incident at the kiosk and the

time that Santiago detained her. (See Pl.’s Resp. (Doc. 46) at 6

(citing Pl.’s Aff. (Doc. 47) ¶ 11); Compare Defs.’ Video 1

Entitled “CHECK-IN (MAIN LOBBY)-2019-06-12-Hand grab at kiosk”

(showing 1:24 p.m. as time of kiosk incident), with Defs.’ Video

4 Entitled “MAIN ENT W SIDE-2019-06-12-Kilo2 hands on” (showing

3:12 p.m. as time of encounter by clinic entrance).) Some

courts, in addressing reasonable suspicion of a completed

offense, have distinguished between a felony and a misdemeanor.

In United States v. Hensley, 469 U.S. 221 (1985), the

Supreme Court announced a categorical rule regarding the

constitutionality of investigatory stops for already completed

felonies: “[I]f police have a reasonable suspicion, grounded in

specific and articulable facts, that a person they encounter was

involved in . . . a completed felony, then a Terry stop may be

made to investigate that suspicion.” Hensley, 469 U.S. at 229.

However, the Supreme Court did not extend that categorical rule

to completed misdemeanors. Id.

Post-Hensley, some circuit courts have adopted balancing

tests to determine the constitutionality of completed

misdemeanor stops, weighing factors such as “the nature of the

crime, how long ago the suspect committed it, and the ongoing

risk of the individual to the public safety.” See Brown, 114

F.4th 253, 267 (4th Cir. 2024) (Wynn, J., dissenting); see also

United States v. Jones, 953 F.3d 433, 435–38 (6th Cir. 2020)

(applying balancing test); United States v. Hughes, 517 F.3d

1013, 1016–19 (8th Cir. 2008) (same); United States v. Moran,

503 F.3d 1135, 1141–43 (10th Cir. 2007) (same). However, the

Fourth Circuit has neither expressly adopted a balancing test

nor clarified the standard to be applied within this circuit.

See Brown, 114 F.4th at 267 (Wynn, J., dissenting) (stating that

the Fourth Circuit has never addressed “whether the

investigation of a completed misdemeanor may justify an

investigatory Terry stop”); see also id. at 258 n.4 (majority

opinion) (noting that because the appellant did not specifically

raise the issue of completed misdemeanors on appeal, the court

did not need to “resolv[e] this unpreserved argument”).

In the present case, Defendants concede that Plaintiff’s

suspected disorderly conduct offense at the kiosk was a

“misdemeanor offense.” (Defs.’ Reply (Doc. 48) at 8.) However,

Defendants argue the suspected larceny was a felony offense,

(see Defs.’ Suppl. Br. (Doc. 66) at 6–7), and therefore, the

categorical rule announced in Hensley applies.

Under North Carolina law, a larceny is a felony if the

stolen item was taken “from the person” of the property owner,

regardless of the monetary value of that item. See N.C. Gen.

Stat. § 14-72(b)(1).12 “From the person” is “regularly understood

to include the taking of property from one's presence and

control,” meaning, “in the immediate presence of and under the

protection or control of the victim.” Barnes, 345 N.C. at 149,

478 S.E.2d at 190 (quotation marks and citations omitted). North

Carolina courts recognize that property may be “under the

protection” of the victim even when “not actually ‘attached’ to

him.” State v. Buckom, 328 N.C. 313, 317–18, 401 S.E.2d 362, 365

(1991) (citation omitted). It is enough that the item is “under

the [victim’s] eye” at the time of the taking. Id.; see also

State v. Greene, 251 N.C. App. 627, 633–34, 795 S.E.2d 815, 820

(2017) (explaining that the “essence of larceny from the person”

is the “person’s awareness at the time of the taking”).

12 “The reason the crime of larceny from a person is

afforded special consideration is to protect the person or

immediate presence of the victim from invasion.” Barnes, 345

N.C. at 150, 478 S.E.2d at 191 (quoting 50 Am.Jur.2d Larceny §

54 (1995)).

In the present case, Cummings had just inserted his VA card

into the kiosk, positioned directly in front of him, at the time

that Plaintiff grabbed it. Although the card was not “attached”

to Cummings, it was in his immediate presence and under his

protection and control, which are facts sufficient to support

reasonable suspicion of felony larceny. Cf. Buckom, 328 N.C. at

317–18, 401 S.E.2d at 365 (1991) (affirming a felony larceny

conviction for a defendant who reached into and removed money

from a cash register positioned between himself and the store

clerk, finding this to be “from the person”).

This court finds that Santiago had reasonable suspicion

that Plaintiff had committed a misdemeanor disorderly conduct

offense and a felony larceny roughly two hours prior to her

investigatory detention. Applying the categorical rule announced

in Hensley, Santiago’s detention of Plaintiff was

constitutional.

C. Plaintiff’s Remaining Claims

Plaintiff’s remaining claims arise out of the series of

events that occurred after Santiago sought to detain Plaintiff

by blocking her exit. When Santiago attempted to block

Plaintiff’s exit, she resisted. (Santiago’s Aff. (Doc. 41-1) ¶¶

14, 16–21; Pl.’s Aff. (Doc. 47) ¶ 13;13 Defs.’ Video 4 Entitled

“MAIN ENT W SIDE-2019-06-12-Kilo2 hands on” at 01:48–04:30.) A

physical confrontation ensued and culminated in Plaintiff’s

arrest. (See Defs.’ Video 4 Entitled “MAIN ENT W SIDE-2019-06-

12-Kilo2 hands on” at 01:48-04:30; Pl.’s Ex. 1, Administrative

Claim (Doc. 1-1) at 10, 13.) After arrest, Plaintiff was

subjected to a mental health assessment onsite at the VA clinic,

and then she was issued a citation and released. (Santiago’s

Aff. (Doc. 41-1) ¶¶ 22–24, 27; see also Pl.’s Aff. (Doc. 47) ¶

36–38.)

i. Fourth Amendment Bivens Claim

Plaintiff alleges that Santiago used excessive force to

effectuate her arrest in violation of her Fourth Amendment

rights. (Compl. (Doc. 1) ¶¶ 36–42.)14

“In Bivens, the Supreme Court held for the first time that

there existed an implied cause of action under the Fourth

13 Plaintiff does not dispute that she engaged in a physical

confrontation with Santiago in her affidavit. However, she

contends that she “was not resisting arrest, because [she] did

not know that [Santiago] intended to arrest [her].” (Pl.’s Aff.

(Doc. 47) ¶ 13.)

14 Plaintiff also alleges in her Verified Complaint that

Defendants Santiago and Nellis facilitated an “unreasonably

lengthy detention,” (Compl. (Doc. 1) ¶ 42), when they held

Plaintiff on site at the VA clinic after her arrest and

subjected her to a mental health evaluation. This court

construes Plaintiff’s allegation of an “unreasonably lengthy

detention” to be part of her FTCA claim for false imprisonment,

which it analyzes below.

Amendment to sue federal officials for money damages arising

from an unreasonable search and seizure.” Mays v. Smith, 70

F.4th 198, 202 (4th Cir. 2023), cert. denied, 144 S. Ct. 1008

(2024) (citing Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388(1971)).

In recent years, the Supreme Court “has imposed a ‘highly

restrictive’ analysis for future Bivens cases” and “has made

clear that expanding the Bivens remedy to a new context is an

‘extraordinary act,’ that will be unavailable ‘in most every

case.’” Id. (citations omitted). At summary judgment, Defendants

do not challenge that “Plaintiff’s Bivens claim [is] the same

sort of Fourth Amendment implied cause of action that the

Supreme Court recognized in its Bivens decision,” but “reserve

the right to argue that the claim is an impermissible extension

of that case law to a new content if this case is not dismissed

on summary judgment.” (Defs.’ Br. (Doc. 41) at 21 n.1 (citing

Hernandez v. Mesa, 589 U.S. 93 (2020)).)

Regarding excessive force, Plaintiff alleged in her

Verified Complaint that Santiago “initiated [the] physical

confrontation,” (Compl. (Doc. 1) ¶ 13), “laid his hands upon

Plaintiff, violently assaulted her, threw her to the floor, and

caused Plaintiff to suffer personal injuries, humiliation,

severe emotional distress, and other injuries.” (Id. ¶ 22.)

Plaintiff also alleged that she suffered discrete physical

injuries from this force such as “a mini-stroke, bruising,

contusions and other bodily injuries,” as well as the

aggravation of other physical and mental conditions. (Id. ¶ 18.)

In his affidavit, Santiago describes the escalation of his

physical confrontation with Plaintiff this way: “[Plaintiff]

actively and physically resisted me detaining her. She pushed me

and attempted to leave. Due to her use of force, I positioned

myself between [her] and the exit while giving her verbal

commands to deescalate . . . [s]he continued to use force and

attempt to leave.” (Santiago’s Aff. (Doc. 41-1) ¶¶ 16–17.)

Plaintiff “physically pushed me and tried to get past me in

order to exit the clinic. I continued to stand my ground and

block her exit . . . [Plaintiff] attempted to push my arm out of

her way and put her body weight against me in an attempt to

leave.” (Id. ¶ 18.) Finally:

As [Plaintiff] was pushing against me, she tripped

over a sign that was on the floor in the corner of

the vestibule. This caused her to fall backwards. As

she was falling to the ground, I braced myself against

a glass wall and attempted to catch her arm and

prevent the fall. I was unable to catch her or prevent

her fall to the floor of the vestibule.

(Id. ¶ 19.)

In her affidavit, Plaintiff offers numerous subjective

conclusions about the security footage that this court does not

accept as fact. However, she also directly disputes two of

Santiago’s assertions. First, she states: “I did not trip on the

sign in the vestibule,” rather “Santiago pushed me from behind

causing me to fall forward onto the floor.” (Pl.’s Aff. (Doc.

47) ¶¶ 14, 23.) Second, she states: “[At the time that I fell],

Santiago had not informed me that he intended to arrest me, or

that I was not free to leave.” (Id. ¶ 14; see also id. ¶ 22.)

After considering Plaintiff’s and Santiago’s affidavits,

this court finds that there is genuine dispute over whether

Santiago intentionally pushed Plaintiff to the ground or whether

she tripped over the sign on her own accord. This court also

finds that there is genuine dispute over whether Santiago

verbally informed Plaintiff she was not free to leave before he

detained and arrested her. The video footage submitted by the

parties does not resolve either disputed fact. Lacking audio,

the footage cannot prove whether Santiago verbally communicated

to Plaintiff that she was “not free to leave.” Additionally,

although the footage captures the moment Plaintiff fell to the

ground, reasonable viewers of the footage could find that

Santiago placed his hands on Plaintiff’s back and pushed (as

Plaintiff contends) or that Plaintiff tripped, and Santiago

merely reached out to grab her (as Santiago contends). Because

the video footage does not “blatantly contradict” Plaintiff’s

accounting of the facts, her accounting is credited as the

nonmovant at summary judgment. See Witt v. W. Va. State Police,

Troop 2, 633 F.3d 272, 277 (4th Cir. 2011); Hupp v. Cook, 931

F.3d 307, 315 n.3 (4th Cir. 2019).

Further, this court finds that these genuine disputes of

fact are material to Plaintiff’s Fourth Amendment claim for

excessive force. Courts “evaluate whether an officer has used

excessive force based on a standard of ‘objective

reasonableness.’” Wilson v. Prince George's Cnty., Md., 893 F.3d

213, 219 (4th Cir. 2018) (citation omitted). Determining

“objective reasonableness” is

guided by the framework of Graham v. Connor, 490 U.S.

386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). That is,

although [courts] give “careful attention to the

facts and circumstances of each particular case,”

there are three factors central to the inquiry: “the

severity of the crime at issue, whether the suspect

pose[d] an immediate threat to the safety of the

officers or others, and whether he [was] actively

resisting arrest or attempting to evade arrest by

flight.” See Graham, 490 U.S. at 396, 109 S.Ct. 1865.

And in the Fourth Circuit, [courts] consider a fourth

factor — “the extent of the plaintiff's injuries.”

See Hupp v. Cook, 931 F.3d 307, 322 (4th Cir. 2019);

see also Rowland v. Perry, 41 F.3d 167, 174 (4th Cir.

1994).

Nazario v. Gutierrez, 103 F.4th 213, 234 (4th Cir. 2024).

“Ultimately, the overarching inquiry is whether the force that

was used was proportional under the circumstances.” Id.

Here, the “overarching inquiry” of whether Santiago’s force

was “proportional under the circumstances,” see id., is

difficult to determine without first resolving the factual

dispute about what force he used to effectuate the arrest (i.e.,

whether he pushed Plaintiff to the ground). In addition to

obscuring the “overarching inquiry,” the genuine disputes of

fact implicate at least two of the four enumerated factors

courts in this circuit use to evaluate excessive force. See id.

Regarding the fourth factor, the “extent” of Plaintiff’s

injuries cannot be properly weighted without resolving whether

her injuries were caused by Santiago’s push, or by Plaintiff’s

own inadvertent trip and fall. Regarding the third factor, the

extent to which Plaintiff was “actively resisting arrest” cannot

be properly weighted without a finding as to whether Santiago

notified Plaintiff that she was being subjected to an

investigatory detention or sought to block her exit without

explanation. See Smith v. Ray, 781 F.3d 95, 99, 102–03, 106 (4th

Cir. 2015) (finding that the third Graham factor cut in favor of

the plaintiff when an officer grabbed the plaintiff “without

warning or explanation” and without telling her that she “was

subject to an investigation detention or under arrest”). These

disputes of material fact must be resolved at trial.15

Likewise, at this stage, Santiago is not entitled to

qualified immunity on the issue of excessive force. “The

doctrine of qualified immunity shields government officials from

liability for civil damages when their conduct does not violate

clearly established constitutional or other rights that a

reasonable officer would have known.” Hupp, 931 F.3d at 317

(citation omitted). “An official violates a clearly established

constitutional right when, in the light of preexisting law, the

unlawfulness of the actions is apparent.” Yates v. Terry, 817

F.3d 877, 887 (4th Cir. 2016) (cleaned up) (internal quotation

marks and citations omitted). In the context of an excessive

force claim, “[t]he [(qualified)] immunity test and the test on

the merits both rely on an objective appraisal of the

15 At the motion to dismiss stage, this court reviewed the

video footage and found, based on the facts alleged at the time,

“that Santiago did not commit an assault, or use unreasonable

force, if he lawfully detained Plaintiff at the start of the

confrontation.” (Mem Op. and Order (Doc. 27) at 9.) Because the

parties’ affidavits, submitted at summary judgment, create

genuine disputes of material fact identified herein, Defendants

are not entitled to judgment as a matter of law on the issue of

excessive force. Relatedly, to the extent either Plaintiff or

Defendant contend that finding at the motion to dismiss stage

should be construed as the law of the case, it is hereby

amended. The affidavits provide a different fact pattern from

that before the court in the complaint and motion to dismiss

stage.

reasonableness of the force employed,” Rowland v. Perry, 41 F.3d

167, 173 (4th Cir. 1994), although “the immunity inquiry must be

filtered through the lens of the officer’s perceptions at the

time of the incident in question.” Id. “Graham v. Connor . . .

frames the reasonableness determination . . . , evaluating all

relevant factors rather than any one in isolation.” Id.

As discussed above, disputes of fact prevent the court from

assigning proper weight to two of the four enumerated Graham

factors. At least one of the remaining factors appears to favor

Plaintiff. Regarding the second factor, Plaintiff alleges in her

Verified Complaint that Santiago is “much younger and stronger”

than her, (Compl. (Doc. 1) ¶ 41), a fact that Defendants do not

dispute. Moreover, Plaintiff did not possess a weapon, and no

other facts in the record suggest that she presented an ongoing

threat to Santiago, or others, at the time of their encounter by

the clinic’s entrance. See Smith, 781 F.3d at 102 (finding that

the second Graham factor favored plaintiff when the officer was

“a pretty good size man” while the suspect was “a smaller

woman,” and the officer “did not have any reason to believe that

[the suspect] was armed”); see also Hupp, 931 F.3d at 322–23.

Regarding the first factor, the severity of the crimes for

which Plaintiff was arrested are arguably “slight.” See Hupp,

931 F.3d at 322. Plaintiff was arrested for disorderly conduct

and delaying, obstructing, and resisting – both misdemeanor

offenses. In the context of the Graham factors, the Fourth

Circuit draws contrast between these types of “nonviolent

misdemeanor offense[s],”16 and others that inherently provide the

arresting officer “reason to believe that [the suspect] was a

potentially dangerous individual.” Smith, 781 F.3d at 102; see

also Hupp, 931 F.3d at 322.

If the trier of fact finds that one, or both, of the

presently indeterminable factors weigh in favor of Plaintiff,

then it may be that the “weakness of the Graham factors [here]

was so apparent that any reasonable officer would have realized

that the force employed was excessive.” See Smith, 781 F.3d at

106.

16 Because Plaintiff physically resisted Santiago’s

detention, it is questionable whether the misdemeanor conduct

for which she was arrested was “nonviolent.”

In Hupp, the Fourth Circuit found that a misdemeanor

“obstruction” charge was a “slight” offense that favored the

plaintiff, even when the plaintiff allegedly cursed repeatedly

at the officer and refused to comply with orders. See Hupp, 931

F.3d at 315, 325. Granted, in Hupp, there were not allegations

that the plaintiff used physical force or pushed the officer as

part of their refusal to comply, see generally id., as there are

here.

However, even if the first Graham factor favors Santiago,

this does not change this court’s analysis as to qualified

immunity. See id. at 322–23 (denying qualified immunity at

summary judgment even though one of the four factors clearly

favored the defendant-officer).

In a similar case, the Fourth Circuit denied qualified

immunity for an officer who allegedly “grabb[ed] and thr[ew]” a

suspect to the ground and “push[ed] her against the police

car[,]” see Hupp, 931 F.3d at 322, even though the officer’s use

of force caused only “minor injuries” to the suspect – a factor

that weighed clearly in favor of the officer. Id. There, the

court found (1) that the severity of the suspect’s crime was

minor, (2) that the suspect did not pose an immediate threat to

the officer or others, and (3) that there were disputed facts

concerning the extent to which the suspect resisted arrest. Id.

at 322–23. In other words, one factor clearly favored the

defendant-officer, two factors favored the suspect, and one

factor was indeterminable due to disputed facts. See id. Here,

one, if not two, factors favor Plaintiff (she alleges

significant injuries, and the severity of the crimes for which

she was arrested are arguably “slight”) and two factors are

indeterminable due to disputed facts.

Depending on the resolution of disputed facts at trial, it

could well be that Santiago violated the Fourth Amendment’s

prohibition on excessive force, and that this violation was

clearly established, prohibiting the application of qualified

immunity. At summary judgment, Santiago is not entitled to

qualified immunity on the issue of excessive force. See Hupp,

931 F.3d at 318 (explaining that the application of qualified

immunity “cannot be decided on summary judgment if disputes of

the historical facts exist”).

ii. Assault and Battery

Plaintiff’s Federal Tort Claims Act (“FTCA”) claim for

assault and battery against the United States is grounded in the

same facts that underly her Bivens claim for excessive force

against Santiago. (See Compl. (Doc. 1) ¶¶ 21–24; see also Doc.

23 (substituting the United States in place of Santiago as the

defendant for Plaintiff’s assault and battery claim).)

“Under North Carolina law, a plaintiff may maintain a civil

action for assault arising from an arrest if it is accomplished

by excessive force. Like a Fourth Amendment excessive-force

claim, the question of whether an officer has used excessive

force is judged by a standard of objective reasonableness.”

Caraway v. City of Pineville, 111 F.4th 369, 385 (4th Cir. 2024)

(cleaned up) (internal quotation marks and citations omitted).

Having found that genuine disputes of material fact prevent

this court from awarding summary judgment to Defendants on the

issue of excessive force, it likewise finds that Plaintiff’s

FTCA claim for assault and battery survives summary judgment as

well.17

iii. False Imprisonment

Under North Carolina law, the “elements of false

imprisonment include: (1) the illegal restraint of plaintiff by

defendant, (2) by force or implied threat of force, and (3)

against the plaintiff's will.” Wilkerson v. Duke Univ., 229 N.C.

App. 670, 674, 748 S.E.2d 154, 158 (2013) (internal quotation

marks and citations omitted). “False arrest is a form of false

imprisonment.” Fowler v. Valencourt, 334 N.C. 345, 348, 435

S.E.2d 530, 532 (1993).

Plaintiff alleges in her Complaint that “Santiago and Nellis

arrested [her] without probable cause or excuse” and then

“intentionally detained [her] against her will.” (Compl. (Doc. 1)

¶¶ 26–27.) At summary judgment, she argues: “Santiago clearly

prevented [Plaintiff] from going where she wanted to go, and

compelled her to stay where she did not wish to stay, the

definition of false imprisonment.” (Pl.’s Resp. (Doc. 46) at 19.)

This court construes Plaintiff’s claim for false imprisonment to

17 Neither party addressed at summary judgment whether the

discretionary function exception deprives this court of subject

matter jurisdiction concerning Plaintiff’s FTCA claims. See

Medina v. United States, 259 F.3d 220, 224–26 (4th Cir. 2001).

As necessary, this court will address subject matter

jurisdiction at trial and hear arguments from counsel.

be that she was subjected to an “illegal restraint” by way of

three alleged Fourth Amendment violations: an investigatory

detention absent reasonable suspicion, an arrest absent probable

cause, and an unreasonably lengthy custody brought upon by the

mental health assessment she was subjected to after arrest.

This court already found that Santiago’s investigatory

detention of Plaintiff was constitutional. (See supra Section

IV.B.) It further finds that Santiago had probable cause to

arrest Plaintiff after she resisted that lawful detention.

Probable cause “turns on two factors: the suspect's conduct

as known to the officer, and the contours of the offense thought

to be committed by that conduct.” Hupp, 931 F.3d at 318 (internal

quotation marks and citations omitted). “While [courts] look to

the information available to the officer on the scene at the

time, [courts] apply an objective test to determine whether a

reasonably prudent officer with that information would have

thought that probable cause existed for the arrest.” Id.

Plaintiff was charged with disorderly conduct and for

“delay, obstruct, and resisting an officer.” (Pl.’s Ex. 1,

Administrative Claim (Doc. 1-1) at 10, 13.) The charging statute

for the resisting offense provides: “If any person shall

willfully and unlawfully resist, delay or obstruct a public

officer in discharging or attempting to discharge an official

duty, the person is guilty of a Class 2 misdemeanor.” See N.C.

Gen. Stat. § 14-223(a).

There is no doubt that Santiago was “attempting to discharge

an official duty” – i.e., temporarily detain Plaintiff to

investigate her involvement in possible crimes at the kiosk – at

the time Plaintiff resisted. Santiago asserts in his affidavit

that when he positioned his body in front of Plaintiff to block

her exit, she used “physical force” and “pushed” him. (Santiago’s

Aff. (Doc. 41-1) ¶ 18.) Moreover, the video footage confirms

that, at minimum, Plaintiff repeatedly tried to step around

Santiago and evade detention. “[A] reasonably prudent officer

with that information would have thought that probable cause

existed for the arrest.” See Hupp, 931 F.3d at 318.

Plaintiff does not dispute that she physically resisted

Santiago’s detention, but rather argues that she was legally

permitted to resist Santiago because the detention was

“unlawful.” (Pl.’s Resp. (Doc. 46) at 19.) Specifically, she

argues: “[A] citizen may remonstrate against officers, make a

display, and may resist by reasonable means [an] unlawful arrest.

That is precisely what [Plaintiff] did when Santiago unlawfully

detained her, and unlawfully arrested her.” (Id. (citing, inter

alia, John Bad Elk v. United States, 177 U.S. 529 (1900)).)

However, this court found that Santiago had reasonable suspicion

necessary to lawfully detain Plaintiff. Thus, her argument that

she merely resisted an unlawful detention fails.18

Plaintiff’s third and final argument that she was subjected

to an “illegal restraint” is based on her allegation that

Santiago and Nellis subjected her to an “unreasonably lengthy

detention” when they “detained [Plaintiff] at the Kernersville

VA Clinic for hours” following her arrest. (Compl. (Doc. 1) ¶

42.) It is undisputed that, after arresting Plaintiff, Santiago

“escorted” her “to the mental health reception area” of the VA

clinic and called in “Dr. Herman Diggs, a VA psychologist,” to

18 Plaintiff also submitted as an exhibit an unpublished case

from the North Carolina Court of Appeals, State v. York, 233 N.C.

App. 240, 758 S.E.2d 706, 2014 WL 1384422 (2014). (See Doc. 46-

1). In her brief, Plaintiff did not expound on this case’s

relevance to her argument. State v. York provides the rule that

an officer may arrest a suspect on misdemeanor charges only if

the officer personally witnessed the offense, or if certain

exigent circumstances are present. Id. at *3. However,

Plaintiff’s reliance on State v. York is inapposite to the facts

of her case. Here, Santiago attempted to detain Plaintiff in

order to investigate her possible misdemeanor offenses at the

kiosk – offenses that he did not personally witness. When

Plaintiff resisted that detention, Santiago arrested her for

disorderly conduct and delay, obstruct, and resist – offenses she

committed in his immediate presence. Thus, his actions comport

with the State v. York rule.

perform a mental health evaluation. (Santiago’s Aff. (Doc. 41-1)

¶¶ 22–24.)19

It is also undisputed that sometime during Plaintiff’s

custody, Santiago’s supervisor, Lieutenant Travis Nellis, “was

called in to assist and advise.” (Santiago’s Aff. (Doc. 41-1) ¶

25.) After consulting with Nellis, Santiago “determined that it

would be in Ms. Street’s best interest to be arrested by

citation, rather than be physically arrested.” (Id.) Santiago

“provided [Plaintiff] with her citations” and then released

Plaintiff “and she left of her own accord.” (Id. ¶ 27; see also

Pl.’s Aff. (Doc. 47) ¶¶ 36, 38.) Plaintiff does not dispute

19 Plaintiff asserts that she heard Dr. Diggs inform

Santiago at one point that “she is of sound mind,” (Pl.’s Aff.

(Doc. 47) ¶ 32), but has not marshalled facts to dispute

Santiago’s assertion that Dr. Diggs also informed him, after his

assessment of Plaintiff, that she suffered from trauma, did not

trust police, and “did not do well with men which likely caused

the belligerent behavior.” (Santiago’s Aff. (Doc. 41-1) ¶¶ 22–

24.)

these facts but contends that the whole ordeal from arrest to

release took “many hours.” (Pl.’s Aff. (Doc. 47) ¶ 35.)20

At summary judgment, Plaintiff’s legal argument appears to

be that her Fourth Amendment rights were violated, and her

detention was “unreasonably” extended, because Santiago decided

to subject Plaintiff to a post-arrest mental health assessment.

(See Pl.’s Resp. (Doc. 46) at 18, 19–20; see also Compl. (Doc.

1) ¶ 42.) To support her argument, Plaintiff cites only one

case, Caniglia v. Strom, 593 U.S. 194 (2021), which holds that

officers’ “community caretaking functions” do not provide a

blanket exception to the warrant requirement for searches and

seizures in the home, see id. at 196, an area of Fourth

Amendment law not implicated in the current action.

20 Plaintiff alleges other facts in her affidavit about her

time in custody, such as that Santiago had a “plan” to “lock[]”

Plaintiff in a “psych ward in Salisbury,” but that Dr. Diggs

“refused to go along” with it. (Id. ¶ 29.) This “plan” did not

come to fruition, and this allegation by Plaintiff does not

create a genuine issue for trial. Reviewing both parties’

affidavits, it appears that Plaintiff only genuinely contradicts

one of Santiago’s assertions about Plaintiff’s time in custody:

Santiago asserts that at one point he “removed [Plaintiff’s]

handcuffs to help ensure she remained calm and to allow for a

better assessment of her mental health.” (Santiago’s Aff. (Doc.

41-1) ¶ 23.) Plaintiff asserts that Santiago did not voluntarily

remove her handcuffs, but rather he did so “only reluctantly”

after a VA physician arrived on the scene and “insisted” that he

remove them. (Pl.’s Aff. (Doc. 47) ¶ 30.) Regardless, this

dispute of fact is not material to Plaintiff’s claim that her

custody was “unreasonably lengthy.”

The Fourth Circuit instructs that “officers may seize a

person for an emergency mental health evaluation, so long as

they have probable cause. Such probable cause exists when

officers know reliable facts sufficient to warrant a prudent man

to believe that the person poses a danger to [herself] or

others.” Putman v. Harris, 66 F.4th 181, 185–86 (4th Cir. 2023)

(internal quotation marks and citations omitted). The Fourth

Circuit notes that officers may reasonably rely “on their

perceptions” that a suspect poses a danger to themselves or

others, especially when that officer has “ample opportunity to

observe and interview” the suspect. See Raub v. Campbell, 785

F.3d 876, 883–84 (4th Cir. 2015) (awarding qualified immunity to

an officer and stating, in dicta, it was “doubtful” that the

officer violated plaintiff’s Fourth Amendment rights).

Notably, here, Santiago already possessed probable cause to

arrest Plaintiff on criminal charges. Thus, it is not clear that

he needed to independently establish probable cause that her

mental state “pose[d] a danger to [herself] or others,” see

Putman, 66 F.4th at 186, in order to subject her to an onsite

mental health evaluation as part of the post-arrest booking

process. For her part, Plaintiff argues only that Santiago’s

“‘concerns’ about [her] mental health [were] unreasonable.”

(Pl.’s Resp. (Doc. 46) at 10.) She cites no caselaw to establish

what standard governs the reasonableness of post-arrest mental

health evaluations, and instead, only repeats the general

proposition that an officer’s conduct under the Fourth Amendment

is typically judged “upon an objective standard.” (Id. at 18

(citing Kingsley v. Hendrickson, 576 U.S. 389 (2015); Short v.

Hartman, 87 F.4th 593 (4th Cir. 2023)).)

In his affidavit, Santiago explains that, after arresting

Plaintiff, he “had concerns regarding her mental health” due to

her “belligerence and aggressive behavior.” (Santiago’s Aff.

(Doc. 41-1) ¶ 22.) Because of those concerns, Santiago

“escorted” Plaintiff “to the mental health reception area for an

assessment.” (Id.)

Plaintiff argues that Santiago’s concerns were

“unreasonable” because Santiago “knew or should have known” that

Plaintiff had just visited with a mental health professional,

Dr. Stanley, prior to her arrest. (Pl.’s Resp. (Doc. 46) at 10,

17.) However, this argument is unavailing because Santiago’s

concerns regarding Plaintiff’s mental health arose from his

perceptions of her “belligerence and aggressive behavior” during

his physical struggle with her near the clinic’s entrance, which

occurred after Plaintiff’s appointment with Dr. Stanley and thus

involved conduct about which Dr. Stanley would have had no

knowledge at the time of the appointment.

Plaintiff also argues, without citing caselaw, that

“Santiago failed to demonstrate that he had any training or

qualifications of any kind to make any sort of assessment of

[Plaintiff’s] mental condition.” (Id. at 10.) But this argument

runs counter to the Fourth Circuit’s clear charge that law

enforcement officers may “seize a person for an emergency mental

health evaluation.” Putman, 66 F.4th at 185.

Finally, Plaintiff asserts that her booking process took

“many hours,” (Pl.’s Aff. (Doc. 47) ¶ 35), but has offered no

argument or facts which show that a booking process of “many

hours,” ending with a citation and an onsite release from her

place of arrest, is any lengthier than what an arrestee

typically experiences when they are subjected to a formal

booking process at a magistrate office or jail.

On the record before this court, “there is an absence of

evidence to support” Plaintiff’s claim that she was subjected to

an unreasonably lengthy detention on account of her post-arrest

mental health evaluation, Celotex Corp., 477 U.S. at 325, and

Plaintiff has not identified specific facts “showing that there

is a genuine issue for trial” related to this claim, see McLean,

332 F.3d at 718–19.

Having found that Santiago did not violate Plaintiff’s

Fourth Amendment rights when he initially detained Plaintiff,

when he arrested Plaintiff, or when he subjected her to a mental

health assessment with a VA psychologist after her arrest,

Plaintiff’s claim for false imprisonment fails as a matter of

law.

V. CONCLUSION

Defendant Santiago lawfully detained Plaintiff roughly two

minutes into their encounter near the VA clinic’s entrance based

upon reasonable suspicion that Plaintiff had been involved in

criminal activity during her incident with Mr. Cummings at the

kiosk in the VA clinic’s lobby. After Plaintiff resisted

detention, Santiago formed probable cause to arrest Plaintiff.

There is an absence of evidence to support Plaintiff’s claim that

she was subjected to an unreasonably lengthy custody post-arrest.

However, there are genuine disputes of material fact regarding

the force Santiago used to effectuate Plaintiff’s arrest, and

whether that force was reasonable under the circumstances. As

such, Plaintiff’s claim for excessive force against Defendant

Santiago, and her claim for assault and battery against the

United States, survive summary judgment.

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary

Judgment, (Doc. 40), is GRANTED IN PART AND DENIED IN PART. It is

GRANTED as to Claim II, false imprisonment against the United

States. It is DENIED as to Claim I, assault and battery against

the United States. It is further DENIED as to Claim IV, Bivens

excessive force claim against John Santiago.

This the 14th day of February, 2025.

bd Wit L. Mebun.

United States District Judde

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