Bailey v. Kennedy

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL BAILEY; JANE BAILEY; BILLY 

BAILEY,

Plaintiffs-Appellees,

v.  No. 02-1761

D. H. KENNEDY; D. B. WHITLEY;

MIKE CRISP; CITY OF HICKORY,

Defendants-Appellants.



MICHAEL BAILEY; JANE BAILEY; BILLY 

BAILEY,

Plaintiffs-Appellants,

v.  No. 02-1818

D. H. KENNEDY; D. B. WHITLEY;

MIKE CRISP; CITY OF HICKORY,

Defendants-Appellees.



Appeals from the United States District Court

for the Western District of North Carolina, at Statesville.

Carl Horn, III, Magistrate Judge.

(CA-00-8-5-H)

Argued: September 23, 2003

Decided: November 17, 2003

Before WILLIAMS and TRAXLER, Circuit Judges, and

HAMILTON, Senior Circuit Judge

2 BAILEY v. KENNEDY

Affirmed and remanded for further proceedings by published opinion.

Judge Williams wrote the opinion, in which Judge Traxler and Senior

Judge Hamilton joined.

COUNSEL

ARGUED: Robert Danny Mason, Jr., WOMBLE, CARLYLE, SAN-

DRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for

Appellants. Stephen Luke Largess, FERGUSON, STEIN, CHAM-

BERS, WALLAS, ADKINS, GRESHAM & SUMTER, P.A., Char-

lotte, North Carolina, for Appellees. ON BRIEF: James R. Morgan,

Jr., WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,

Winston-Salem, North Carolina, for Appellants.

OPINION

WILLIAMS, Circuit Judge:

Officers D.H. Kennedy, D.B. Whitley, Mike Crisp, and the City of

Hickory appeal the district court’s denial of qualified immunity and

public officers’ immunity on several of Michael, Jane, and Billy Bai-

ley’s federal constitutional and state law claims. The Baileys’ claims

arose in connection with two separate incidents: the seizure of

Michael Bailey1 on May 27, 1998, inside the home of his parents,

Jane and Billy Bailey; and the arrest of Michael Bailey on September

3, 1998. As discussed below, accepting the facts as the district court2

viewed them in denying qualified immunity, the police officers vio-

lated clearly established federal law. In addition, under North Caro-

lina law, an officer of reasonable intelligence would have known that

the police officers’ actions were contrary to their duty. Accordingly,

1

The record indicates that Michael was 41 years-old at the time these

events took place.

2

The parties consented to have the case decided by a Magistrate Judge

pursuant to 28 U.S.C.A. § 636(c) (West Supp. 2003). For ease of refer-

ence, we refer to the magistrate judge as the district court throughout.

BAILEY v. KENNEDY 3

we affirm the district court’s denial of qualified immunity and public

officers’ immunity.

The Baileys cross-appeal the district court’s grant of summary

judgment to the police officers and the City of Hickory on the Bai-

leys’ procedural due process claim, and its denial of summary judg-

ment on two of their state law claims. Because we do not have

jurisdiction over this interlocutory cross-appeal, see Swint v. Cham-

bers County Comm., 514 U.S. 35 (1995), we grant the motion to dis-

miss the cross-appeal.

I.

On May 27, 1998, Officers Whitley and Kennedy, police officers

with the City of Hickory, North Carolina, took Michael Bailey invol-

untarily out of his parents’ home to a hospital for an emergency men-

tal evaluation. Accepting the facts as the district court viewed them,

Michael was riding his bike while intoxicated before the officers were

called.3 He rode to his neighbor’s house and fell down. His neighbor,

Ms. Matheson, called 911. The 911 operator "relayed the following

report to a City police communications operator: ‘Mike Bailey

advised a neighbor that he is going home to commit suicide. He is

intoxicated and has been depressed.’" (J.A. at 75.) Officers Whitley

and Kennedy responded separately to the call. Officer Whitley arrived

at the Baileys’ home first. The district court described the subsequent

events as follows:

It is undisputed that Michael was home alone when

Defendant Whitley arrived and knocked on the front door of

the house. In the light most favorable to the Plaintiffs,

3

We recognize that the police officers hotly dispute what happened on

the afternoon of May 27. As discussed below, our jurisdiction to consider

an appeal from the denial of qualified immunity is limited. We must

accept the facts as the district court viewed them and "determine

whether, based on those facts, a reasonable person in the defendant’s

position could have believed that he or she was acting in conformity with

the clearly established law at the time." Gray-Hopkins v. Prince

George’s County, Md., 309 F.3d 224, 229 (4th Cir. 2002). Accordingly,

we quote at length from the district court’s recitation of the facts.

4 BAILEY v. KENNEDY

Michael admitted Defendant Whitley into the house and

returned to sit at the dining table where he was eating lunch.

Defendant Whitley asked Michael a series of questions,

which Michael answered to Defendant Whitley’s apparent

satisfaction. Michael denied any thoughts of suicide, but

declined Defendant Whitley’s request to search the rest of

the house, instead directing Defendant Whitley to contact

his father, Plaintiff Billy Bailey, for permission to conduct

a search.

It is undisputed that there were no weapons or any other

evident preparations for a suicide attempt in view in the

foyer, dining room, or kitchen of the house, but Michael tes-

tified in his deposition that he told Defendant Whitley that

his father kept guns locked in a gun safe.3 In the light most

favorable to the Plaintiffs, Michael asked Defendant Whit-

ley to leave, escorted him out of the house, and closed the

front door. . . .

FN.3 Michael Bailey’s deposition testimony that

he told Defendant Whitley about the gun safe is

the first mention in the record of even the possibil-

ity of a gun being in the Bailey residence. In his

deposition, Defendant Whitley could not recall

ever asking Michael about the presence of weap-

ons in the house, but merely asked generally for

permission to search.

There is no evidence . . . that Defendant Whitley voiced

any objection to returning to the porch or made any attempt

to remain inside the house or prevent Michael from closing

the door. Instead, Defendant Whitley stepped out of the

house and allowed Michael to shut the door.

At the same time that Defendant Whitley stepped out the

front door onto the porch, Defendant Kennedy arrived on

the scene, exited his patrol car, and began to walk towards

the front porch. Defendant Whitley rang the doorbell but

BAILEY v. KENNEDY 5

then stepped a few feet away from the doorway, turned his

back to the door, and attempted to contact his supervisor,

Lieutenant Ron Lambreth, via his portable radio.

Even in the light most favorable to the Defendants,

Defendant Whitley said only "we’re going to have to do

something" to Defendant Kennedy, before Defendant Whit-

ley began his radio conversation with his supervisor and

Defendant Kennedy knocked on the front door. . . .

It is undisputed that while [Michael] was . . . speaking

with his sister-in-law on the telephone — that is, while he

was holding the telephone handset to his ear — Michael

reopened the front door and faced Defendant Kennedy.

In the light most favorable to the Plaintiffs, after telling

Defendant Kennedy that the suicide report was "crazy," that

the officers "need[ed] to leave," and that he was going to

call his lawyer, Michael attempted to close the door and

turned and reached towards a cabinet where the telephone

base was located. In the light most favorable to the Plain-

tiffs, Defendant Kennedy placed his foot in the doorway to

prevent the door from closing and grabbed Michael’s arm in

an attempt to pull him onto the porch. Defendant Kennedy

then stepped into the house and began to fight with Michael

in an attempt to take him to the floor.

...

. . . [W]hen Defendant Whitley heard sounds of a struggle

and Defendant Kennedy’s verbal commands for Michael to

get down on the floor, he turned and saw Defendant Ken-

nedy fighting with Michael. Defendant Whitley discontin-

ued his radio call and ran to assist Defendant Kennedy.

. . . Michael testified that Defendant Kennedy had tackled

him and knocked him off his feet before Defendant Whitley

came into the house, while Defendant Whitley testified that

it required the efforts of both officers to finally take Michael

to the floor.

6 BAILEY v. KENNEDY

It is undisputed that the officers ultimately succeeded in

holding Michael down on the floor and placed a handcuff on

one of his wrists. Defendant Whitley testified that Defen-

dant Kennedy then struck Michael in the face "multiple"

times with his fist, cutting Michael’s mouth and lips, which

bled and required stitches. Defendant Kennedy testified that

he struck Michael "two or three times" in order to subdue

Michael to the point that he could be handcuffed with his

hands behind his back. Michael testified that his left shoul-

der was also injured by the Defendant officers’ repeated

attempts to grab his arm and apply handcuffs.

The Defendant officers finally handcuffed Michael with

his hands in front, held him down on the floor, and waited

for back-up. At 2:28 p.m., the Defendant officers did a "stop

unit time check" on their portable radios, indicating that

they were not in any danger.

Three minutes later, other officers arrived and placed

flex-cuffs on Michael’s ankles and wrists — this time with

his hands behind his back. . . .

Michael testified . . . that while he was still lying face-

down in the house, with his hands and feet "flex-cuffed,"

that Defendant Kennedy attempted to pick him up by the

arms, which caused great pain in his shoulders. Michael tes-

tified that Defendant Whitley responded to his curses and

shouts of pain by kicking him in the back.

In the light most favorable to the Plaintiffs, one unknown

officer then dragged Michael by his feet to the curbside.

At this point, Plaintiff Billy Bailey arrived at his home.

He observed his son still resisting the officers’ attempts to

place him in a police car and saw that Michael had scratches

on his back and was bleeding profusely from his mouth. Mr.

Bailey told Michael to stop fighting. . . .

. . . After the officers left with Michael, Mr. Bailey went

inside the house where he discovered on the foyer floor a

pool of blood that was two feet in diameter.

BAILEY v. KENNEDY 7

(J.A. at 76-80.) We note that, in the light most favorable to the Bai-

leys, after the officers arrived at the hospital, they falsely told the doc-

tors that Michael had attacked them and that Michael’s father already

had petitioned to have Michael involuntarily committed. Kennedy

then proceeded to procure a commitment order from the county mag-

istrate without disclosing that Michael was already in custody. In

addition, Kennedy completed the return of service portion of the com-

mitment order by falsely indicating that he had served the order on

Michael.

The second incident alleged in the complaint involved Michael

Bailey’s arrest on September 3, 1998. On the morning of September

3, Michael Bailey consumed an unknown quantity of alcohol. He then

walked from his home to a Wachovia bank branch and attempted to

cash a check. The teller refused to cash the check because Michael

did not have any identification and was not a customer of the bank.

Michael "‘exchanged words’ with bank personnel, including a ‘cuss

word.’" (J.A. at 83.) The bank employees called the police. Sergeant

Sigmon and Officer Kennedy responded to the bank. After talking

with bank employees, who described a man wearing a green tank top

and black pants, Sergeant Sigmon left the bank and drove in the direc-

tion that the bank employees had last seen the man with the green

tank top walking. Officer Kennedy then returned to the scene of an

unrelated accident.

Sergeant Sigmon soon came upon Michael, who met the descrip-

tion of the man who had been in the bank. She asked him where he

was going. "Michael replied that he was going home and asked if the

teller was going to press charges against him. Michael testified that

Sergeant Sigmon responded by saying, ‘No,’ but asked Michael to go

home and return with someone who would confirm that he would not

go back to the bank." (J.A. at 84.)

Michael left Sergeant Sigmon and then returned with his neighbor

Ms. Miller. By the time Michael returned, Officer Kennedy had

arrived. "Kennedy informed Michael that he intended to arrest him for

the events that occurred at the bank; Michael responded that he had

resolved the matter with Sergeant Sigmon and that Defendant Ken-

nedy did not need to become involved. In the light most favorable to

the Plaintiffs — that is, according to Ms. Miller’s affidavit —

8 BAILEY v. KENNEDY

Michael neither threatened nor cursed Defendant Kennedy but only

asked Defendant Kennedy to stop harassing him." (J.A. at 84-85.)

Kennedy then struck Michael in the chin and pushed him back 20

to 30 feet over a bush. Sigmon and Kennedy then sprayed Michael

with pepper spray. "[Michael] did not fight with the officers or resist

arrest in any way, and it is undisputed that he was handcuffed and

placed in the back of Defendant Kennedy’s patrol car."4 (J.A. at 85.)

II.

On January 12, 2000, Michael Bailey, Jane Bailey and Billy Bailey

filed a complaint against D.H. Kennedy, D.B. Whitley, Mike Crisp,

(the police officers) and the City of Hickory, alleging violations of the

United States Constitution, actionable under 42 U.S.C.A. § 1983

(West 2003), as well as violations of the North Carolina Constitution

and North Carolina common tort law. Specifically, Michael Bailey

alleged that on May 27, 1998, Kennedy and Whitley violated his right

to be free from unreasonable seizure under the Fourth Amendment by

seizing him in the absence of probable cause and by using excessive

force; violated his right to procedural due process under the Four-

teenth Amendment;5 and committed the state common law torts of

trespass by a public official, false arrest, false imprisonment, assault

and battery, and gross negligence. Jane and Billy Bailey alleged that

on May 27, 1998, Kennedy and Whitley violated their Fourth Amend-

ment right to be free from unreasonable search; violated their analo-

gous right under the North Carolina Constitution; and committed the

state common law tort of trespass by a public official. In addition,

Michael Bailey alleged that on September 3, 1998, Kennedy and

Crisp violated his Fourth Amendment right to be free from unreason-

4

The complaint and the district court’s opinion include additional facts

about the incidents after Michael was placed in the patrol car and taken

to the police station, including the participation of Officer Crisp. Because

the police officers do not appeal the district court’s denial of qualified

immunity on the excessive force claim and denial of public officers’

immunity on the state law assault and battery claim related to these sub-

sequent events, we do not discuss them further.

5

Michael Bailey also alleged a violation of his substantive due process

rights, but he later voluntarily dismissed that claim.

BAILEY v. KENNEDY 9

able seizure and committed the state common law torts of trespass by

a public official, false arrest, assault and battery, and malicious prose-

cution. The Baileys sued the City of Hickory on a theory of

respondeat superior based on the police officers’ actions on both May

27 and September 3.

On January 31, 2000, the police officers and the City moved for

summary judgment on all claims, and the Baileys filed a cross-motion

for partial summary judgment on all claims arising out of the May 27

event. The police officers based their motion for summary judgment,

as it related to the federal constitutional claims, on the defense of

qualified immunity, and as it related to the state law claims, on state

law public officers’ immunity.

On April 16, 2002, the district court entered summary judgment in

favor of the City on the federal constitutional claims against it,

entered summary judgment in favor of Kennedy and Whitley on the

procedural due process claim against them, granted qualified immu-

nity to the police officers on the Fourth Amendment false arrest claim

associated with the September 3 incident, and entered summary judg-

ment in favor of the police officers on the malicious prosecution

claim associated with the September 3 incident. The district court

denied the parties’ motions for summary judgment respecting the

remaining claims.

The police officers now appeal the denial of qualified immunity on

the federal constitutional claims associated with the May 27 event; the

denial of public officers’ immunity on the state law claims associated

with the May 27 event; and the denial of public officers’ immunity

on the state law false arrest claim associated with the September 3

event.

The Baileys filed a timely notice of cross-appeal. In their brief, the

Baileys limit their cross-appeal to three issues: the grant of summary

judgment to the police officers and the City of Hickory on the proce-

dural due process claim; the denial of summary judgment on the state

law claim of false imprisonment associated with the May 27 incident;

and the grant of summary judgment to the police officers and the City

of Hickory on the state law malicious prosecution claim associated

with the September 3 incident. As noted above, we do not have juris-

10 BAILEY v. KENNEDY

diction over this interlocutory cross-appeal. Swint v. Chambers

County Comm., 514 U.S. 35 (1995).

III.

We have jurisdiction to review final orders of district courts under

28 U.S.C.A. § 1291 (West 1993). The police officers appeal the dis-

trict court’s denial of qualified immunity on the federal law claims.

To the extent that an order of a district court rejecting a government

official’s qualified immunity defense turns on a question of law, it is

a final decision within the meaning of § 1291 under the collateral

order doctrine recgonized in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541 (1949), and is therefore subject to immediate

appeal. See Johnson v. Jones, 515 U.S. 304, 313 (1995) (holding that

although interlocutory appeal is allowed from the denial of qualified

immunity, questions of evidentiary sufficiency are not collaterally

appealable). Accordingly, "we possess jurisdiction to consider an

appeal from a decision of a district court rejecting a government offi-

cial’s claim of entitlement to qualified immunity to the extent that the

official maintains that the official’s conduct did not violate clearly

established law." Winfield v. Bass, 106 F.3d 525, 529 (4th Cir. 1997)

(en banc). On the other hand, "to the extent that the appealing official

seeks to argue the insufficiency of the evidence to raise a genuine

issue of material fact—for example, that the evidence presented was

insufficient to support a conclusion that the official engaged in the

particular conduct alleged—we do not possess jurisdiction under

§ 1291 to consider the claim." Id. at 529-30.

Where, as here, the district court articulates the facts as it viewed

them in determining that summary judgment was inappropriate, our

task is relatively straightforward. We "must accept those facts and

then determine whether, based on those facts, a reasonable person in

the defendant’s position could have believed that he or she was acting

in conformity with the clearly established law at the time." Gray-

Hopkins v. Prince George’s County, Md., 309 F.3d 224, 229 (4th Cir.

2002); accord Bass, 106 F.3d at 530 (holding that in reviewing the

denial of qualified immunity we "accept[ ] the facts as the district

court viewed them").

The police officers also appeal the denial of public officers’ immu-

nity on the state law claims. In determining whether we have jurisdic-

BAILEY v. KENNEDY 11

tion over the questions of law in this interlocutory appeal, "we must

apply the collateral order doctrine with due regard to the nature and

scope of the immunity." Gray-Hopkins, 309 F.3d at 231. We have

jurisdiction over the denial of public officers’ immunity if "under

state law, the immunity is an immunity from suit, but we lack such

jurisdiction if it is an immunity from liability only." Id. Because,

under North Carolina law, public officers’ immunity is an immunity

from suit, Summey v. Barker, 544 S.E.2d 262, 264 (N.C. App. 2001),

we have jurisdiction over the police officers’ appeal of the district

court’s denial of public officers’ immunity to the state law claims. We

again accept the facts as the district court viewed them.

"We review de novo the district court’s denial of qualified immu-

nity, employing our full knowledge of our own and other relevant pre-

cedents." Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003). "The

burden of proof and persuasion with respect to a claim of qualified

immunity is on the defendant official." Id. We also review the denial

of public officers’ immunity de novo. See Gray-Hopkins, 309 F.3d at

233-34 (reviewing denial of public official immunity de novo).

IV.

Determining whether a state officer is entitled to qualified immu-

nity is a two-step inquiry. First, we must decide "whether a constitu-

tional right would have been violated on the facts alleged." Saucier

v. Katz, 533 U.S. 194, 200 (2001). "Next, assuming that the violation

of the right is established, courts must consider whether the right was

clearly established at the time such that it would be clear to an objec-

tively reasonable officer that his conduct violated that right." Brown

v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).

A.

Considering first Michael Bailey’s Fourth Amendment unlawful

seizure claim, our initial task is to assess whether the facts alleged,

taken in the light most favorable to Michael Bailey, indicate that Offi-

cers Kennedy and Whitley had probable cause to seize Michael for an

emergency mental evaluation. See S.P. v. City of Takoma Park, 134

F.3d 260, 266 (4th Cir. 1998) (holding that police officers "must have

probable cause to believe that the individual posed a danger to

12 BAILEY v. KENNEDY

[him]self or others before involuntarily detaining the individual"). If

probable cause was lacking, then Michael has successfully asserted

the violation of a constitutional right — specifically his Fourth

Amendment right against unreasonable seizure — and we may move

on to the second prong of our qualified immunity analysis.

Probable cause is a "practical, nontechnical conception" that

addresses the "the factual and practical considerations of everyday life

on which reasonable and prudent men, not legal technicians, act." Illi-

nois v. Gates, 462 U.S. 213, 231 (1993) (quotation marks omitted).

It is a "fluid concept" that cannot be "reduced to a neat set of legal

rules." Id. at 232. We have previously held that in the case of the law

governing seizures for psychological evaluations, there is a "lack of

clarity" as far as what constitutes probable cause. Gooden v. Howard

County, 954 F.2d 960, 968 (4th Cir. 1992). Based on Michael’s ver-

sion of the events giving rise to this case, as accepted by the district

court, when Officer Whitley responded to the 911 dispatch, he found

Michael intoxicated and sitting at the dining room table eating lunch.

Michael denied any thoughts of suicide, and there were no weapons

or any other preparations for a suicide attempt evident. When Officer

Whitley asked for permission to search the house, Michael told the

officer to contact Michael’s father, Billy Bailey, the owner of the

house, for permission to search. Apparently satisfied, Officer Whitley

left the house within five minutes of his arrival. Officer Kennedy

arrived as Officer Whitley was leaving the house. Officer Whitley

said, at most, "we’re going to have to do something." (J.A. at 77.)

Michael, who was then on the telephone, opened the door when Offi-

cer Kennedy knocked, and again denied any thoughts of suicide, call-

ing the suicide report "crazy." (J.A. at 77.) He told the officers that

they needed to leave and that he was going to call his lawyer. Michael

attempted to close the door and turned toward a cabinet where the

telephone base was located. At this point, Officer Kennedy placed his

foot in the doorway to prevent the door from closing and grabbed

Michael’s arm.

The police officers argue that they had probable cause to seize

Michael for an emergency mental evaluation based on the neighbor’s

911 report. According to the officers, the 911 report asserted that

Michael was at home, intoxicated, and suicidal. The police officers

argue that once they confirmed two of these three assertions, namely

BAILEY v. KENNEDY 13

that Michael was at home and intoxicated, they then had probable

cause to believe that Michael was a danger to himself. Michael, how-

ever, denied any thoughts of suicide, calling the report crazy. When

Officer Whitley arrived, Michael was sitting at the dining room table

eating lunch. More telling, after talking to Michael for approximately

five minutes, Officer Whitley exited the house. Officer Kennedy,

knowing only that Officer Whitley had exited the house and that Offi-

cer Whitley said "we’re going to have to do something," grabbed

Michael almost as soon as he opened the door.

Without more, the 911 report cannot bear the weight that the offi-

cers would place on it. The law does not permit "random or baseless

detention of citizens for psychological evaluations." Gooden, 954

F.2d at 968. The facts of this case are distinguishable from Gooden,

where the police officers responded on two separate dates to citizen

reports of screaming in an apartment building. On the second visit,

the police officers heard the screaming themselves and believed that

Ms. Gooden’s apartment was the source of the scream. When ques-

tioned, Ms. Gooden admitted that she had "yelped," ostensibly due to

burning herself on a hot iron. Id. at 962. After leaving Ms. Gooden’s

apartment, the police officers again heard noises coming from the

apartment, including loud thuds and screaming. After again talking to

Ms. Gooden, searching her apartment, and conferring with each other,

the officers decided to detain Ms. Gooden for an emergency mental

evaluation. Id. at 963-64.

This case is also distinguishable from S.P. v. City of Takoma Park.

In S.P., the police responded to a husband’s report that his wife was

possibly suicidal. When the officers arrived at S.P.’s home, they

found her alone, "obviously distraught and crying." S.P., 134 F.3d at

267. She "admitted that she had had a ‘painful’ argument with her

husband and that if not for her children, she would have considered

committing suicide." Id. After observing and interviewing S.P., the

police officers made "a deliberate decision" to detain her for an emer-

gency mental evaluation. Id.; see also In re Woodie, 448 S.E.2d 142

(N.C. App. 1994) (holding that involuntary commitment was proper

where person had attempted suicide, and when doctor advised him

that he needed to be hospitalized, he abruptly walked out of the doc-

tor’s office and said he was going to kill himself).

14 BAILEY v. KENNEDY

In this case, the police officers had no evidence to support the

assertion in the 911 report that Michael was suicidal. Michael was not

visibly distraught or crying. Instead, he was eating lunch. There were

no weapons or other suicide preparations evident, and Michael denied

the suicide reports, told the officers they needed to leave, and said he

was going to call his lawyer. Moreover, after talking with Michael for

approximately five minutes, Whitley voluntarily left the house. Of

course, citizen complaints are entitled to some credence, and officers

need not wait "until they [see] blood, bruises and splintered furni-

ture." Gooden, 954 F.2d at 967 (citation and quotation marks omit-

ted). Nonetheless, accepting the facts as the district court viewed

them, the 911 report, viewed together with the events after the police

officers arrived, was insufficient to establish probable cause to detain

Michael for an emergency mental evaluation.

We now must determine whether the right alleged to have been

violated was a "clearly established . . . right[ ] of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). A right is "clearly established" if "‘the contours of the right

[are] sufficiently clear’" so that a reasonable officer would have

understood, under the circumstances at hand, that his behavior vio-

lated the right. Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting

Anderson v. Creigton, 483 U.S. 635, 640 (1987)). The inquiry is an

objective one, dependent not on the subjective beliefs of the particular

officer at the scene, but instead on what an objectively reasonable

officer would have understood in those circumstances. Milstead v.

Kibler, 243 F.3d 157, 161 (4th Cir.), cert. denied, 534 U.S. 888

(2001).

In deciding whether the right alleged to have been violated was

clearly established, we must define the right "at a high level of partic-

ularity." Edwards v. City of Goldsboro, 178 F.3d 231, 250-51 (4th

Cir. 1999). We have recognized that "the general right to be free from

seizure unless probable cause exists [is] clearly established in the

mental health seizure context." Gooden, 954 F.2d at 968. We have

also recognized that "an officer must have probable cause to believe

that the individual posed a danger to [him]self or others before invol-

untarily detaining the individual." S.P., 134 F.3d at 266. The test of

whether a right is clearly established, however, cannot be applied at

this level of generality. Id. Defining the right at issue with the requi-

BAILEY v. KENNEDY 15

site level of particularity, the appropriate question is whether, at the

time of Kennedy and Whitley’s actions on May 27, 1998, it was

clearly established that a police officer may not detain someone for

an emergency mental evaluation based only on a 911 report that the

person was suicidal, where the officers were able to observe the per-

son alleged to be suicidal and observed nothing indicating that the

person might have been a danger to himself.

We conclude that it was clearly established that probable cause was

lacking in such a situation. Although we have noted that what consti-

tutes "dangerousness" in the mental health seizure context is not pre-

cisely defined, see Gooden, 954 F.2d at 968, this lack of clarity does

not automatically immunize police officers from liability for every

seizure made for purposes of a mental evaluation. As we noted above,

"the law in no way permits random or baseless detention of citizens

for psychological evaluations." Id. Accepting the facts as the district

court viewed them, the police officers observed nothing that would

indicate to them that Michael might be a danger to himself. Certainly,

no reasonable officer, upon seeing Officer Whitley voluntarily leave

the house, would have thought that Michael was in such imminent

danger of harming himself that immediate seizure was required, with-

out any additional investigation, deliberation or consultation with

Whitley, who had just been inside the house. Moreover, even assum-

ing that Whitley did say "we’re going to have to do something," (J.A.

at 77), to Kennedy as he arrived, there is nothing in the record to sug-

gest that this brief, non-specific comment would have made a reason-

able officer believe that immediate seizure was necessary. The

contours of probable cause were sufficiently clear that the unlawful-

ness of seizing someone in such a situation would have been apparent

to reasonable officers. Accordingly, we affirm the district court’s

denial of qualified immunity on Michael Bailey’s Fourth Amendment

unlawful seizure claim.

Several of the Baileys’ other claims are intertwined with Michael’s

Fourth Amendment unlawful seizure claim. Because, given the facts

as the district court viewed them, there was no probable cause to seize

Michael for an emergency mental evaluation, the police officers also

committed both false arrest and false imprisonment under state law.

See Glenn-Robinson v. Acker, 538 S.E.2d 601, 614 (N.C. App. 2000)

(holding that where police officers did not have probable cause, they

16 BAILEY v. KENNEDY

committed a false arrest); Emory v. Pendergraph, 571 S.E.2d 845,

848 (N.C. App. 2002) (holding that false imprisonment means the

illegal restraint of someone against his will).

The police officers argue that they are entitled to public officers’

immunity as to these state law claims. Under North Carolina law,

public officials engaged in discretionary, governmental duties enjoy

absolute immunity from personal liability so long as they keep within

the scope of their official authority and act without malice or corrup-

tion. Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984). The police

officers concede, and we agree, that public officers’ immunity, at the

least,6 is unavailable to officers who violate clearly established rights

because an officer acts with malice when he "does that which a man

of reasonable intelligence would know to be contrary to his duty."7 Id.

Accepting the facts as the district court viewed them, a man of rea-

sonable intelligence would have known that seizing Michael for an

emergency mental evaluation was contrary to his duty. Accordingly,

the Baileys have forecast sufficient evidence of malice to foreclose

the availability of public officers’ immunity on the false arrest and

false imprisonment claims.

Next, we consider Jane and Billy Bailey’s federal and state consti-

6

The Baileys argue that public officers’ immunity is not available if the

officer’s actions exceed the scope of his authority. They argue that

because an arrest without probable cause exceeds the scope of an offi-

cer’s lawful authority, an officer is not entitled to public officers’ immu-

nity for any seizure made without probable cause. We need not

determine whether North Carolina’s public officers’ immunity indeed

offers such thin protection. Because we find that the acts at issue violated

rights that were clearly established, an officer of reasonable intelligence

would have known that the officers’ actions were contrary to their duty.

This is all that is required to support a finding of malice under state law,

see Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984), and it is clear that

there is no public officers’ immunity where the officers act with malice.

7

A finding of malice also requires that the officer "intend[ ] [his act]

to be . . . injurious to another." Grad, 321 S.E.2d at 890. Because the

police officers argue only that a man of reasonable intelligence would

not have known that their actions were contrary to their duty, we confine

our discussion to the first prong of the malice definition.

BAILEY v. KENNEDY 17

8

tutional claims based on an allegedly unlawful search of their home,

as well as their state common law claim of trespass by a public offi-

cer. The police officers argue that exigent circumstances made their

warrantless entry into the Bailey residence objectively reasonable.

Mincey v. Arizona, 437 U.S. 385, 394 (1978). Because, as discussed

above, the officers had no reason to believe that Michael was a danger

to himself, no exigent circumstances justified their warrantless entry

into the Baileys’ home. Also, as discussed above, accepting the facts

as the district court viewed them, it was clearly established that no

exigent circumstances requiring immediate action to protect human

life existed to justify the search. Moreover, a man of reasonable intel-

ligence would not have believed that exigent circumstances existed in

this situation. See Grad, 321 S.E.2d at 890 (holding that public offi-

cers’ immunity is not warranted when official does that which a man

of reasonable intelligence would know was contrary to his duty).

Accordingly, we affirm the district court’s denial of qualified immu-

nity and public officers’ immunity on these claims as well.

B.

The last three claims associated with the May 27 event are the fed-

eral excessive force claim and the two related state law claims: assault

and battery and gross negligence. Respecting the federal constitu-

tional claim, as discussed above, qualified immunity is a two-step

inquiry, so we turn first to whether, accepting the district court’s view

of the facts, there was a constitutional violation. "The Fourth Amend-

ment prohibition on unreasonable seizures bars police officers from

using excessive force to seize a free citizen." Jones v. Buchanan, 325

F.3d 520, 527 (4th Cir. 2003). We determine whether an officer has

used excessive force to effect a seizure based on a standard of "‘ob-

8

We note that the police officers have not argued that the Baileys do

not have a direct action for monetary damages for the abridgment of their

state constitutional rights. Accordingly, we do not address whether the

Baileys’ claim of trespass by a public officer constituted an adequate

remedy at law. See Corum v. University of North Carolina, 413 S.E.2d

276, 293 (N.C. 1992) (holding that an individual whose state constitu-

tional rights have been abridged has a direct action for monetary dam-

ages against a state official in his official capacity, if there is no adequate

remedy provided by state law).

18 BAILEY v. KENNEDY

jective reasonableness.’" Id. (quoting Graham v. Connor, 490 U.S.

386, 399 (1989)). "We weigh the nature and quality of the intrusion

on the individual’s Fourth Amendment interests against the counter-

vailing governmental interests at stake. This test requires us to deter-

mine the reasonableness of an officer’s actions and is not capable of

precise definition or mechanical application. Instead it requires care-

ful attention to the facts and circumstances of each particular case."

Id. (quotation marks omitted). Those facts and circumstances include

"the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether

[the suspect] is actively resisting arrest or attempting to evade arrest

by flight." Graham v. Connor, 490 U.S. 386, 396 (1989). "The extent

of the plaintiff’s injury is also a relevant consideration." Jones, 325

F.3d at 527.

We consider the Graham factors in turn. Starting with the first fac-

tor, the severity of the crime at issue, Michael committed no crime.

In fact, as discussed above, the police officers did not even have prob-

able cause to seize Michael. When we considered this factor in Jones,

we noted that "[i]n recent years, we have twice confronted situations

in which a plaintiff, subjected to police force, had committed no

crime; in each, we held that the plaintiff had stated a claim for viola-

tion of his constitutional right to be free from excessive police force."

Jones, 325 F.3d at 528 (citing Clem v. Corbeau, 284 F.3d 543, 545-

47 (4th Cir. 2002); Park v. Shiflett, 250 F.3d 843, 848, 853 (4th Cir.

2001)). Moreover, Jones itself was a case in which the plaintiff had

committed no crime, and we held that because "Jones committed no

crime, this first factor clearly weighs in his favor." Id. Similarly,

because it was unquestionable that Michael had not committed any

crime, this factor weighs heavily in Michael’s favor.

The second factor, whether a reasonable officer could have per-

ceived Michael to be an immediate threat to the safety of the officers

or others, also weighs in favor of Michael. As discussed above, there

was no reason to believe that Michael was a danger to himself or oth-

ers, including the officers. No reasonable person viewing Officer

Whitley voluntarily leaving the house could have concluded that

Michael was an immediate threat to himself or to the officers. At the

time that Officer Kennedy used force to seize him, Michael was

attempting to shut the door to his parents’ home. Moreover, it is

BAILEY v. KENNEDY 19

undisputed that Michael was unarmed. Thus, the threat to the safety

of the officers or others was minimal, if it existed at all.

Turning to the third factor, it is clear that after Kennedy started to

use force to seize him, Michael resisted arrest. Whitley then joined

Kennedy and both administered repeated hand-blows and kicks while

trying to handcuff Michael. The officers continued to use force after

Michael’s hands were bound behind his back,9 his feet were bound,

and he was lying face down on the floor. (J.A. at 99 ("[I]n the light

most favorable to the Plaintiffs, after backup arrived and Michael’s

hands and feet were secured, and while he was still lying face down,

Defendant Kennedy pulled him up by his arms, causing further injury

to his shoulders, and Defendant Whitley kicked Michael in the

back.").) Accepting the facts as the district court viewed them,

Michael was not resisting arrest when he was bound hand and foot

and lying face down on the floor. Accordingly, even this factor does

not weigh completely against Michael.

Considering these three factors together, we conclude that the

amount of force used was excessive. Assuming arguendo that some

degree of force was justifiable, the extensive blows and kicks used

against an unarmed man were unreasonable, especially the use of

force that continued after Michael was bound hand and foot and lying

face down on the floor. We note in this respect that the level of force

used caused severe injuries. Michael’s injuries included cuts that left

a two-foot diameter pool of blood on the foyer floor and later required

him to have stitches. He was also bruised and incurred shoulder inju-

ries that required repeated surgeries to repair. (J.A. at 80, 99.)

Having determined that Michael has proffered evidence of a viola-

tion of a constitutional right, we now consider whether Officers Ken-

nedy and Whitley are nonetheless entitled to qualified immunity. As

we held in Jones v. Buchanan:

9

Kennedy and Whitley initially handcuffed Michael with his hands in

front of his body. After back-up arrived, flex-cuffs were placed on

Michael’s ankles and wrists — "this time with his hands behind his

back." (J.A. at 79.)

20 BAILEY v. KENNEDY

Even though the facts of a prior case may not be "identical,"

the reasoning of that case may establish a "premise" regard-

ing an unreasonable use of force that can give an officer fair

notice that his conduct is objectively unreasonable.

Ten years before Deputy Keller’s November 1999 use of

force against Jones, the Supreme Court in Graham v. Con-

nor had clearly established that all claims of excessive force

in the course of any seizure of a free person must be ana-

lyzed under an "objective reasonableness" standard, taking

into account the factors discussed above. Graham, 490 U.S.

at 395-96, 109 S.Ct. 1865. Both before and after November

1999, courts have consistently applied the Graham holding

and have consistently held that officers using unnecessary,

gratuitous, and disproportionate force to seize a secured,

unarmed citizen, do not act in an objectively reasonable

manner and, thus, are not entitled to qualified immunity.

Jones, 325 F.3d at 531-32 (citation omitted). There, we held that the

officer was not entitled to qualified immunity because the officer

attacked Jones "even though Jones, although drunk and using foul

language, was unarmed, handcuffed, and alone in a secured room in

the sheriff’s headquarters." Id. In Jones, we cited several cases

decided prior to May 1998, in which police officers were denied qual-

ified immunity where the officer’s use of force might seem to be more

justified than the use of force in this case. See Rowland v. Perry, 41

F.3d 167 (4th Cir. 1994) (denying qualified immunity on excessive

force claim where police officer attacked person suspected of taking

a $5 bill from the floor that did not belong to him even though Row-

land may have resisted after he was attacked); Kane v. Hargis, 987

F.2d 1005, 1006-07 (4th Cir. 1993) (denying qualified immunity on

excessive force claim where taking the facts in the light most favor-

able to Kane, she resisted arrest for driving under the influence and

the police officer, after he had secured her, "repeatedly push[ed] her

face into the pavement, cracking three of her teeth, cutting her nose,

and bruising her face"); see also Mayard v. Hopwood, 105 F.3d 1226,

1227-28 (8th Cir. 1997) (denying qualified immunity to an officer

who slapped and punched a suspect, in handcuffs and leg restraints,

even though the suspect had, prior to being completely restrained,

kicked and hit an officer, physically resisted arrest, and shouted and

BAILEY v. KENNEDY 21

screamed at officers). "Thus, years before [1998], it was clearly estab-

lished that a police officer was not entitled to use unnecessary, gratu-

itous, and disproportionate force against a handcuffed, secured

citizen, who posed no threat to the officer or others and had neither

committed, nor was suspected of committing, any crime." Jones, 325

F.3d at 534. Here, Michael was unarmed, and the use of force contin-

ued even after he was secured with flex-cuffs around both his hands

and his feet, and lying face down on the floor, alone in a room of his

parents’ house. Kennedy lifted Michael up by his arms while they

were bound behind his back, thereby wrenching his shoulder, and

Whitley kicked Michael in the back when he cried out in pain. Thus,

Kennedy and Whitley violated clearly established law in using force

to seize Michael when he had committed no crime and when they had

no reason to believe he was a danger to himself or others. It was espe-

cially clear that they were not entitled to use force after Michael was

secured face down on the floor in handcuffs and leg restraints.

Accordingly, we affirm the denial of qualified immunity on the

§ 1983 excessive force claim.

For the same reasons that we affirm the denial of qualified immu-

nity on the § 1983 excessive force claim, we affirm the denial of pub-

lic officers’ immunity on the state common law assault and battery

claim. Glenn-Robinson, 538 S.E.2d at 615 (holding that a citizen can

sue a law enforcement officer for assault and battery if "the officer

used force against plaintiff which was excessive under the given cir-

cumstances" (quotation marks omitted)); Grad, 321 S.E.2d at 894.

With regard to the gross negligence claim, the police officers make

no argument on appeal. Therefore, we consider them to have aban-

doned this issue on appeal. See Edwards, 178 F.3d at 241 n.6.

C.

The only claim appealed by the police officers related to the Sep-

tember 3 event is the state law false arrest claim. Officer Kennedy

argues that the arrest of Michael Bailey on September 3 was in accor-

dance with state law. The district court held that the arrest violated

state law because Kennedy was not an eyewitness to Michael’s mis-

demeanor offenses. N.C. Gen. Stat. § 15A-401(b)(2) provides, in rele-

vant part:

22 BAILEY v. KENNEDY

(b) Arrest by Officer Without a Warrant. —

(1) Offense in Presence of Officer. — An officer may

arrest without a warrant any person who the officer has

probable cause to believe has committed a criminal offense

in the officer’s presence.

(2) Offense Out of Presence of Officer. — An officer may

arrest without a warrant any person who the officer has

probable cause to believe:

a. Has committed a felony; or

b. Has committed a misdemeanor, and:

1. Will not be apprehended unless immedi-

ately arrested, or

2. May cause physical injury to himself or oth-

ers, or damage to property unless immediately

arrested . . . .

N.C. Gen. Stat. § 15A-401(b) (2001). Kennedy admits that Michael’s

offenses were misdemeanors and were committed outside of Kenne-

dy’s presence. Kennedy argues that the arrest was nonetheless lawful

because N.C. Gen. Stat. § 15A-401(b)(2)(b)(2) allows an officer to

arrest people who commit misdemeanors outside of his presence if

that person may cause physical injury to himself or others unless

immediately arrested. Kennedy argues that he had probable cause to

believe that Michael might cause physical injury to himself or others

because of his knowledge of the events of May 27. We held above,

however, that Kennedy did not have probable cause on May 27 to

believe that Michael was a danger to himself or others. Given that the

events of May 27 were insufficient to give the officers probable cause

to seize Michael on that date, they are a fortiori insufficient to consti-

tute probable cause to believe that Michael was a danger to himself

or others three months later. Moreover, an officer of reasonable intel-

ligence would have known that arresting Michael in such a situation

was contrary to his duty. Accordingly, Kennedy is not entitled to pub-

lic officers’ immunity on the state law false arrest claim.

BAILEY v. KENNEDY 23

V.

For the foregoing reasons, we affirm the district court’s denial of

qualified immunity and public officers’ immunity to the police offi-

cers. We grant the motion to dismiss the cross-appeal.

AFFIRMED AND REMANDED FOR

FURTHER PROCEEDINGS