Merchant v. Bauer

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROSE C. MERCHANT, Doctor, 

Plaintiff-Appellee,

v.

ROBERT M. BAUER, Officer,

Individually,

Defendant-Appellant,

and

FAIRFAX COUNTY, VIRGINIA; SHARON

BULOVA, Fairfax County Board of

Supervisors; JONATHAN NYTES,  No. 11-1392

Officer, Individually; GERVAIS

REED, Lieutenant, Individually;

JOHN DOE 1 THROUGH JOHN DOE

20, Both inclusive, regardless of

number being each a separate

individual and being fictitious and

unknown to the Plaintiff the

persons or parties intended being

former and or current Fairfax

County, Virginia employees,

Defendants.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, Senior District Judge.

(1:10-cv-00376-TSE-TRJ)

Argued: December 7, 2011

Decided: April 26, 2012

2 MERCHANT v. BAUER

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opin-

ion, in which Judge Gregory and Judge Davis joined.

COUNSEL

ARGUED: Benjamin Rogers Jacewicz, COUNTY ATTOR-

NEY’S OFFICE, Fairfax, Virginia, for Appellant. Kenneth

David Bynum, BYNUM & JENKINS, PLLC, Alexandria,

Virginia, for Appellee. ON BRIEF: David P. Bobzien,

County Attorney, Peter D. Andreoli, Jr., Deputy County

Attorney, COUNTY ATTORNEY’S OFFICE, Fairfax, Vir-

ginia, for Appellant.

OPINION

KING, Circuit Judge:

Dr. Rose C. Merchant initiated this lawsuit in April 2010

against Robert M. Bauer, a police officer in Fairfax County,

Virginia. Dr. Merchant, a licensed psychologist who resides

in Prince George’s County, Maryland, is a former Deputy

Director of the Department of Corrections of that county. In

her Complaint, Merchant alleged malicious prosecution under

the law of Virginia, as well as a claim pursuant to 42 U.S.C.

§ 1983, premised on the Fourth Amendment. Defendant

Bauer moved for summary judgment, contending that the doc-

trine of qualified immunity barred Merchant’s § 1983 claim,

and that Merchant was unable to prove malicious prosecution.

The district court agreed with Bauer on the malicious prose-

cution claim, but permitted Merchant’s § 1983 claim to go

forward, rejecting Bauer’s assertion of qualified immunity.

MERCHANT v. BAUER 3

Bauer appeals the court’s denial of qualified immunity, and,

as explained below, we affirm.

I.

Around noon on February 8, 2008, the Virginia State Police

received a 911 call from a motorist on I-495 in Fairfax

County, Virginia, reporting that he had been forced off the

highway by a black Mercedes-Benz sedan displaying flashing

blue front grill lights.1 The caller reported the Maryland

license number on the Mercedes, and the investigation was

assigned to Officer Bauer of the County Police Department.

Bauer soon discovered that a black 2008 Mercedes-Benz

with a matching Maryland license number was registered to

Dr. Merchant under her married name, Rose Coretta Clark, of

Prince George’s County. Merchant lived there with her new

husband, Rafael Desmond Clark, who, Bauer also learned,

was a convicted felon. Clark had recently served as a police

informant, making controlled buys of cocaine in Maryland’s

Anne Arundel County. Bauer sought to call Dr. Merchant, and

left voicemail messages on the phone at her residence. Upon

speaking with Dr. Merchant and Clark on February 9, Bauer

ascertained that Clark had been driving the Mercedes in Vir-

ginia at the time of the report. Bauer asked them to bring the

vehicle to Annandale, Virginia, for inspection, falsely repre-

senting that the complainant had reported contact damage to

his automobile. Bauer’s representations were for the purpose

of enticing Merchant and her husband to make the drive to

Fairfax County.

On the evening of February 9, Bauer, accompanied by Fair-

1

The facts underlying this appeal are drawn from the summary judg-

ment record made after discovery in the district court, and are presented

in the light most favorable to Dr. Merchant, as the non-moving party. See

George & Co. LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 392 (4th

Cir. 2009).

4 MERCHANT v. BAUER

fax County Officers Brim and Nytes, met Dr. Merchant and

Mr. Clark at a 7-Eleven convenience store in Annandale. The

officers were thereafter joined briefly by their supervisor,

Lieutenant Reed. After obtaining Dr. Merchant’s consent to

search the Mercedes, Bauer found no blue lights or other indi-

cia of police customization, nor did he discover any evidence

that such equipment had ever been installed or removed.

During a lengthy and occasionally testy encounter outside

the 7-Eleven, Bauer’s attention was attracted to what he per-

ceived to be a badge that Dr. Merchant held in her jacket

pocket. She did not, however, present the badge to Bauer (and

Bauer never demanded that she produce or show it). Indeed,

the badge was always sufficiently concealed that Bauer could

not discern its text or markings. Merchant’s body language,

however, caused Bauer to ask "[W]hat do you want to show

me?" to which she responded, "I’m not showing you any-

thing." J.A. 149.2 Merchant told Bauer several times that she

"work[ed] in public safety," recited that she was Deputy

Director of the Prince George’s County Department of Cor-

rections, that is, "second in charge," and once referred to "my

sheriffs."

Dr. Merchant, agitated with Officer Bauer’s behavior and

pursuit of a false allegation, lamented that, "you could have

at least give[n] me professional courtesy. You did not." Id. at

174. Bauer explained that he had asked Prince George’s

County police officers to leave a note at Dr. Merchant’s

Maryland home, requesting that he be contacted. In response,

Merchant speculated that a note was not left because the offi-

cers had spotted her other vehicle in the driveway. Merchant

referred to that vehicle, a county-issued, unmarked white

Impala, as her "police car," using her hands to make "air

quotes" (indicating quotation marks in mid-air). Id. at 186-87.

Officer Bauer concluded that the Mercedes had not been

2

Citations to "J.A. ___" refer to the Joint Appendix filed by the parties

in this appeal.

MERCHANT v. BAUER 5

equipped with flashing blue lights, and after additional banter,

the 7-Eleven encounter concluded.

Upon reviewing video and audio recordings of the 7-Eleven

encounter, Bauer was persuaded that Dr. Merchant had, on

that occasion, unlawfully impersonated a police officer, in

violation of Virginia Code Section § 18.2-174. That statute

provides that

Any person who shall falsely assume or exercise the

functions, powers, duties and privileges incident to

the office of sheriff, police officer, marshal, or other

peace officer, or who shall falsely assume or pretend

to be any such officer, shall be deemed guilty of a

Class 1 misdemeanor.

Va. Code § 18.2-174 (the "Impersonation Statute"). Bauer fol-

lowed up on the 7-Eleven encounter with a phone call to

Lieutenant Colonel Verjeana McCotter-Jacobs, a Division

Chief of the Prince George’s County Department of Correc-

tions. McCotter-Jacobs verified that Dr. Merchant was Dep-

uty Director of the Department of Corrections and confirmed

her status as a civilian employee. McCotter-Jacobs also

advised Bauer that some civilian officials of Prince George’s

County are authorized to carry badges. Dr. Merchant’s boss,

Director of Corrections Alfred J. McMurray, was thereafter

informed of the Virginia investigation.3

3

According to Officer Bauer, McCotter-Jacobs told him that Dr. Mer-

chant had obtained her badge without the authorization of Director

McMurray. McCotter-Jacobs does not recall having addressed Dr. Mer-

chant’s situation, but testified that she would have informed Bauer (or

anyone else) that, in general, only Director McMurray could authorize

issuance of a badge. Officer Bauer asserted that he spoke again with

McCotter-Jacobs after she had followed up with Director McMurray, and

that McCotter-Jacobs relayed to him McMurray’s statement that Dr. Mer-

chant was not authorized to carry a badge. Neither Director McMurray nor

McCotter-Jacobs recall a follow-up conversation. It appears, however, that

Director McMurray’s predecessor had authorized Dr. Merchant to carry a

6 MERCHANT v. BAUER

Officer Bauer also studied the opinion of the Virginia Court

of Appeals in English v. Commonwealth, 598 S.E.2d 322 (Va.

Ct. App. 2004), which upheld an Impersonation Statute con-

viction. Bauer believed that the behavior of the defendant in

English was similar to Dr. Merchant’s conduct in this case.

Bauer then met with a deputy Commonwealth’s Attorney,

who advised Bauer that he "had a good case" for prosecuting

Dr. Merchant for impersonating a police officer. As a result,

Bauer went to a state magistrate and presented sworn testi-

mony to obtain an arrest warrant against Merchant. The con-

tent of that testimony is not, however, in this record. The

warrant was issued on February 13, 2008, charging Merchant

with violating the Impersonation Statute. J.A. 117. Merchant,

accompanied by counsel, turned herself in to the Virginia

authorities on February 19, 2008, and she was handcuffed and

processed. Two days later, she was fired by Prince George’s

County. After being advised of her new husband’s criminal

record, Merchant also had her marriage annulled.

Dr. Merchant went to trial in Fairfax County on the Vir-

ginia Impersonation charge on April 17, 2008. After viewing

the police video and considering the evidence, including

Bauer’s testimony regarding the 7-Eleven encounter, the state

court, in a bench trial, dismissed the charge, explaining that

"There’s no case." Id. at 227. The court observed that, under

the evidence, Merchant had repeatedly identified her county

position to Bauer, accurately referred to her work in public

safety, but "never indicated she was in law enforcement at any

time." Id. at 226-27.

badge. The district court concluded that whatever Bauer was told by

McCotter-Jacobs about the badge authorization constituted a genuine issue

of material fact that had to be resolved in Dr. Merchant’s favor on Bauer’s

motion for summary judgment. As the court’s opinion observed, "Because

the disputed facts, if resolved in favor of Officer Bauer, might lead a rea-

sonable jury to conclude that he is entitled to qualified immunity, the qual-

ified immunity defense remains available to Officer Bauer at trial."

Merchant v. Fairfax Cnty., 778 F. Supp. 2d 636, 649 n.14 (E.D. Va. 2011).

MERCHANT v. BAUER 7

On April 5, 2010, Dr. Merchant filed a pro se complaint in

the District of Maryland against Bauer and several other

defendants, alleging claims under 42 U.S.C. § 1983 for depri-

vation of her Fourth Amendment right to freedom from sei-

zure without probable cause, and also asserting her state law

claim for malicious prosecution. Her lawsuit was thereafter

transferred to the Eastern District of Virginia, and the defen-

dants moved to dismiss. Merchant then retained counsel, after

which the parties agreed that the case would proceed only

against Fairfax County, County Officers Bauer and Nytes, and

Lieutenant Reed. Merchant later agreed to dismiss her claims

against all the defendants except Officer Bauer, who, at the

close of discovery, moved for summary judgment. With

respect to the § 1983 Fourth Amendment claim, Bauer inter-

posed his assertion of qualified immunity.

By its Order and Memorandum Opinion of April 11, 2011,

see Merchant v. Fairfax County, 778 F. Supp. 2d 636 (E.D.

Va. 2011) (the "Opinion"), the district court granted summary

judgment to Bauer on the malicious prosecution claim (ruling

that Dr. Merchant’s evidence of malice was insufficient as a

matter of law), but denied Bauer’s motion as to the § 1983

claim. After spelling out the material facts of the case, the

Opinion explained that "[n]o prudent person in Officer

Bauer’s position could conclude, even on the basis of a rea-

sonable mistake in interpreting or applying the law, that prob-

able cause existed to arrest Dr. Merchant for violating § 18.2-

174 [the Impersonation Statute] under the specific constella-

tion of facts in this record." 778 F. Supp. 2d at 649. The Opin-

ion recognized, however, Bauer’s entitlement to reassert his

qualified immunity defense at trial, acknowledging that a rea-

sonable jury might accept his characterization of what he was

told about the badge authorization by McCotter-Jacobs. Id. at

649 n.14; see supra note 3.

Bauer has filed a timely notice of appeal from the Opin-

ion’s denial of qualified immunity on the § 1983 claim. We

8 MERCHANT v. BAUER

possess jurisdiction under the collateral order doctrine and 28

U.S.C. § 1291.

II.

Although we do not ordinarily review the interlocutory rul-

ings of the district courts, the Supreme Court has recognized

that a denial of summary judgment based on qualified immu-

nity is "an appealable ‘final decision’" under the collateral

order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

We review de novo a district court’s denial of qualified

immunity. See Melgar ex rel. Melgar v. Greene, 593 F.3d

348, 353 (4th Cir. 2010). Pursuant to Saucier v. Katz, 533

U.S. 194 (2001), we must determine "whether a constitutional

violation occurred and . . . whether the right violated was

clearly established," Greene, 593 F.3d at 353, but we may

assess those issues in either sequence. In order for a plaintiff’s

claim to withstand the qualified immunity defense, both of the

Saucier inquiries must be answered in the plaintiff’s favor.

III.

Officer Bauer contends that he is qualifiedly immune from

liability to Dr. Merchant on her § 1983 claim "because an

objectively reasonable police officer, relying upon common

sense, inference, and deduction, could have believed that

probable cause existed to arrest Merchant in light of clearly

established law at the time of this arrest and the facts known

to Bauer." Br. of Appellant 10-11. The doctrine of qualified

immunity protects police officers and public officials from

claims of constitutional violations "for reasonable mistakes as

to the legality of their actions." See Saucier v. Katz, 533 U.S.

194, 206 (2001). The proper qualified immunity analysis is

parsed into two inquiries, which, as mentioned above, may be

assessed in either sequence. The first inquiry is: "Taken in the

light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitu-

tional right?" Id. at 201. The constitutional right to be free

MERCHANT v. BAUER 9

from unreasonable searches and seizures is well settled. See

Miller v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir.

2007) ("Unquestionably, [t]he Fourth Amendment prohibits

law enforcement officers from making unreasonable seizures,

and seizure of an individual effected without probable cause

is unreasonable." (internal quotation marks omitted)). If we

answer the first inquiry in favor of the plaintiff, we must con-

sider whether the constitutional right violated "was clearly

established in the specific context of the case — that is,

[whether] it was clear to a reasonable officer that the conduct

in which he allegedly engaged was unlawful in the situation

he confronted." Figg v. Schroeder, 312 F.3d 625, 635 (4th

Cir. 2002) (internal quotation marks omitted).

Bauer contends that an objectively reasonable officer could

have believed that probable cause existed to arrest Dr. Mer-

chant, and he maintains that the procedural steps that he took

further justified his decision to seek an arrest warrant. To sup-

port the former contention, Bauer relies on the Virginia Court

of Appeals decision in English v. Commonwealth, which

upheld an Impersonation Statute conviction. With respect to

the latter contention, Bauer asserts that Torchinsky v. Siwin-

ski, 942 F.2d 257 (4th Cir. 1991), and Wadkins v. Arnold, 214

F.3d 535 (4th Cir. 2000), stand for the proposition that his dis-

cussion with the prosecutor, coupled with the magistrate

judge’s determination of probable cause, overcame any con-

stitutional deficiencies in Dr. Merchant’s arrest.

A.

Dr. Merchant maintains that, although she was arrested on

the basis of a warrant, it was not supported by probable cause

and was therefore unreasonable. The issue of whether Mer-

chant’s arrest in Virginia for impersonating a police officer

was reasonable or supported by probable cause is evaluated

under an objective standard, based on what a prudent officer

would have believed under the circumstances. See Harlow v.

Fitzgerald, 457 U.S. 800, 819 (1982) ("The public interest in

10 MERCHANT v. BAUER

deterrence of unlawful conduct and in compensation of vic-

tims remains protected by a test that focuses on the objective

legal reasonableness of an official’s acts."); Beck v. Ohio, 379

U.S. 89, 91 (1964) (recognizing that probable cause for arrest

exists if facts known to officer would warrant belief of pru-

dent person that arrestee had committed crime); Wilson v. Kit-

toe, 337 F.3d 392, 398 (4th Cir. 2003) (observing that arrest

is reasonable only if based on probable cause).

Even at the outer reaches of the Impersonation Statute,

there was a lack of probable cause to arrest Dr. Merchant for

falsely assuming the privileges of or pretending to be a police

officer. She accurately related to Bauer that she was a Deputy

Director of the Prince George’s County Department of Cor-

rections and that she worked in public safety. And, although

Merchant referred to her county-issued vehicle as a "police

car," she did so by using air quotes, which, as aptly explained

by the district court, suggested that the term "police car" was

"not actually appropriate or accurate for the . . . situation."

Merchant, 778 F. Supp. 2d at 640 n.6.4 Merchant carried a

lawfully-issued badge, and she did not overtly display the

badge to Bauer during the 7-Eleven encounter. Finally, Mer-

chant declared that Bauer should have shown her some "pro-

fessional courtesy," given her position with the Department of

Corrections. Viewed from a neutral, detached perspective, Dr.

Merchant’s conduct during the 7-Eleven encounter does not

suggest that she was "falsely assum[ing]" the powers of a

police officer or "pretend[ing] to be any such officer." Va.

Code § 18.2-174.

4

The Opinion further observed that "the fact . . . that Dr. Merchant made

quotation marks with her fingers when stating ‘police car’ supports Dr.

Merchant’s contention that she was merely indicating a resemblance

between her car and a police car. Indeed, if Dr. Merchant had a genuine

police car in her driveway, there would be no reason for her to frame her

reference to ‘police car’ with gestured quotation marks." Merchant, 778

F. Supp. 2d at 645.

MERCHANT v. BAUER 11

The relevant facts are not, however, confined to the

encounter at the 7-Eleven. After the encounter, Bauer ascer-

tained from McCotter-Jacobs that Merchant was employed by

the Department and that certain of its non-law-enforcement

officers carried badges. See supra note 3 and accompanying

text. This information served to corroborate Dr. Merchant’s

representations to Officer Bauer at the 7-Eleven, rather than

bolster a claim that she had falsely assumed the powers of a

police officer or pretended to be one. Nevertheless, Bauer

pursued a prosecution against Dr. Merchant for violating the

Impersonation Statute. In the circumstances, we agree with

the Opinion that, "a prudent person armed with this informa-

tion would not conclude, as Officer Bauer did, that Dr. Mer-

chant’s badge, which he never was shown nor asked to see,

was evidence that she was impersonating a law enforcement

officer." Merchant, 778 F. Supp. 2d 646.

Notably, Bauer acknowledged that he made the probable

cause assessment based in part on English v. Commonwealth,

which upheld the Impersonation Statute conviction of a

bounty hunter who had actually pulled over a motorist and

displayed a badge falsely indicating that he was part of a "spe-

cial investigations unit." English, 598 S.E.2d at 324. The acts

undertaken by the bounty hunter in English, however, were

far more brazen and egregious than those of Dr. Merchant.

Further, as the Opinion explained, "the misled party in

English was a civilian driver, not, as here, an experienced

police officer. When considering whether Dr. Merchant inten-

tionally impersonated a police officer, a prudent person would

take into account the fact that Dr. Merchant was speaking to

a police officer." Merchant, 778 F. Supp. 2d at 646. We agree

with those observations of the district court.

To his credit, Officer Bauer sought to corroborate his prob-

able cause analysis by seeking advice from a deputy Com-

monwealth’s Attorney and relying on the magistrate’s

evaluation of his warrant application. In Torchinsky v. Siwin-

ski, we deemed it significant that the arresting officer had

12 MERCHANT v. BAUER

solicited an experienced supervisor’s opinion that there was

probable cause to arrest the plaintiffs, and that a magistrate

had issued arrest warrants. There, Deputy Siwinski was

assigned to investigate a brutal assault. The victim, still hospi-

talized at the time of the investigation, identified Bill and Syl-

via Torchinsky as the attackers. Siwinski conferred with his

sergeant, who believed there was probable cause to arrest the

Torchinskys. Siwinski then presented his evidence to a magis-

trate judge, who determined that probable cause existed and

issued the arrest warrants. After the Torchinskys were

arrested, the victim recanted his earlier identification, and the

charges were dismissed. The Torchinskys thereafter brought

suit against Siwinski, who raised a qualified immunity

defense. We lauded Siwinski for relying on his sergeant’s

legal analysis and making the effort to get a second opinion:

"[The officer’s] conduct . . . did not reflect impulsive or reck-

less behavior. . . . A reasonable officer . . . could view these

consultations . . . as additional confirmation that probable

cause was present." Torchinsky, 942 F.2d at 263. And, we

observed that "[w]hen a police officer protects a suspect’s

rights by obtaining a warrant from a neutral magistrate, the

officer should, in turn, receive some protection from suit

under 42 U.S.C. § 1983." Id. at 262.

Nevertheless, Torchinsky is distinguishable because it

involved a mistake of fact, i.e., an assault victim’s misidentifi-

cation of his attackers, rather than (as here) a mistake of law.

Although there may have been reason to doubt the validity of

the victim’s account, in that he had changed his initial story

and was undergoing hospital treatment, the victim’s statement

was unequivocal and his lucidity was confirmed by the hospi-

tal staff. Consequently, it was arguable that probable cause

actually existed in Torchinsky, and, in fact, the district court

so concluded. See id. at 261 ("The federal district court

reviewed the evidence and determined that summary judg-

ment should be granted because [the defendant detective] had

indeed established probable cause."); see also McKinney v.

Richland Cnty. Sheriff’s Dep’t, 431 F.3d 415, 418 (4th Cir.

MERCHANT v. BAUER 13

2005) (concluding that probable cause justified issuance of

arrest warrant based on victim’s allegations supported by

physical evidence). Here, by contrast, Officer Bauer’s legal

conclusion of probable cause was patently deficient.

Relying on Wadkins, Bauer asserts that the district court

erred by giving insufficient consideration to the procedural

steps that he undertook before seeking an arrest warrant. In

Wadkins, the defendant detective had pursued a forgery inves-

tigation against the plaintiff, and, after receiving authorization

from the Commonwealth’s Attorney for Washington County,

initiated criminal charges. Wadkins, 214 F.3d at 537. When

the charges turned out to be meritless and the Common-

wealth’s Attorney later decided not to prosecute, Wadkins

filed a civil lawsuit against the detective. Id. at 537-38. In

according the detective qualified immunity, we relied on his

conference with the Commonwealth’s Attorney and the mag-

istrate judge’s subsequent issuance of the warrant, observing

that those steps "weigh[ed] heavily toward a finding that

Detective Arnold is immune." Id. at 541.

We recognized in Wadkins, however, that the prosecutor’s

approval of the criminal charge did not mandate a grant of

qualified immunity. Rather, such evidence need only "appro-

priately be taken into account in assessing the reasonableness

of [the detective’s] actions." Id. at 542. We do not discount

that Officer Bauer sought assurances from the prosecutor

prior to seeking an arrest warrant for Dr. Merchant. We do,

however, agree with the district court’s view of the matter:

Bauer’s conversation with the state’s lawyer does not — as a

matter of law — overcome the unreasonableness of the crimi-

nal charge and its lack of probable cause.5

5

The Opinion emphasized the lack of evidence in the summary judg-

ment record concerning what Bauer had presented to the magistrate, or

what he had related to the deputy Commonwealth’s Attorney. Indeed, the

record discloses no evidence concerning what Bauer actually presented to

the magistrate to obtain the arrest warrant — or what he said to the prose-

cutor — other than his own conclusory declaration, which stated:

14 MERCHANT v. BAUER

A key distinction between Wadkins and this case is that the

defendant in Wadkins did not have access to exculpatory evi-

dence (because he had reasonably opted not to pursue it), and,

as a result, his actions, taken as a whole, were not rendered

unreasonable. Conversely, Bauer actually discovered informa-

tion tending to exonerate Dr. Merchant but nevertheless pur-

sued the charge against her. Moreover, that a magistrate

issued an arrest warrant at Bauer’s request is not determina-

tive "where the warrant application is so lacking in indicia of

probable cause as to render official belief in its existence

unreasonable." Torchinsky, 942 F.2d at 261 (quoting Malley

v. Briggs, 475 U.S. 335, 344-45 (1986)). Although Bauer’s

warrant application is not in the record, we assume, consistent

with the constraints of summary judgment review, that it con-

tained only the undisputed facts, which fail to show probable

cause.

Considering the totality of the circumstances, we conclude

that no prudent person would have believed that Dr. Merchant

violated the Impersonation Statute. It follows, then, that her

arrest lacked probable cause and was unreasonable. Thus,

Merchant’s constitutional right not to be unreasonably seized

I met with Deputy Commonwealth’s Attorney Ian Rodway to

review my case relating to Dr. Merchant. I brought my investiga-

tive file to this meeting to assist me. After I reviewed my entire

case relating to Dr. Merchant, I asked Mr. Rodway whether he

agreed that I should seek a warrant for impersonating a law

enforcement officer. Mr. Rodway told me that I had a good case.

...

I later provided testimony under oath about my case against Dr.

Merchant to Magistrate Claude Beheler. I used my investigation

file to assist me. After I had given my sworn testimony, Magis-

trate Beheler found probable cause and issued a warrant for the

arrest of Dr. Merchant on the charge of violating Virginia Code

§ 18.2-174.

J.A. 109-10.

MERCHANT v. BAUER 15

was violated, and we must resolve the first Saucier inquiry in

favor of Dr. Merchant.6

B.

Having ascertained that Officer Bauer violated Dr. Mer-

chant’s Fourth Amendment right, we turn to whether that con-

stitutional right was clearly established. "This inquiry . . .

must be undertaken in light of the specific context of the case,

not as a broad general proposition[.]" Saucier, 533 U.S. at

201. The right is clearly established if "it would be clear to a

reasonable officer that his conduct was unlawful in the situa-

tion he confronted." Id. at 202.

Although it was clearly established that Dr. Merchant had

a Fourth Amendment right not to be arrested without probable

cause, we assess the right in a more particularized sense in the

context of the specific facts of this case. See Taylor v. Waters,

81 F.3d 429, 434 (4th Cir. 1996) ("Although the right to be

free from seizures not founded upon probable cause was well

established[,] . . . defining the applicable right at that level of

generality is not proper[.]"). For a right to be clearly estab-

lished, it is not necessary for the "exact conduct at issue" to

have been previously held unlawful. Wilson v. Layne, 141

F.3d 111, 114 (4th Cir. 1998). Rather, "the existing authority

must be such that the unlawfulness of the conduct is mani-

fest." Id.

It is safe to say that at the time of Dr. Merchant’s arrest, it

was clear that police officers were not at liberty to arrest citi-

zens for impersonating a police officer without any support or

6

In ruling as we do today, we observe that the qualified immunity issue

is not finally resolved against Bauer. As the district court explained in the

Opinion, Bauer is entitled to reassert the defense at trial, pursuant to which

the jury could resolve the disputed facts in his favor, such that qualified

immunity applies. See Merchant, 778 F. Supp. 2d at 649 n.14; supra note

3.

16 MERCHANT v. BAUER

probable cause. The Supreme Court has emphasized that

"[w]here the standard is probable cause, a search or seizure of

a person must be supported by probable cause particularized

with respect to that person." Ybarra v. Illinois, 444 U.S. 85,

91 (1979). No reasonable police officer in Bauer’s position

could have believed that the Fourth Amendment permitted an

arrest when no aspect of the Impersonation Statute had been

established. See Mahoney v. Kesery, 976 F.2d 1054, 1058 (7th

Cir. 1992) (observing that "if a reasonable officer would not

have believed the person had committed a crime, then the

officer, whatever he did or did not believe, is acting contrary

to clearly established law and therefore has no immunity").

Although convictions of Impersonation Statute violations

are few in Virginia, English v. Commonwealth is a clear

example of one such conviction, and Officer Bauer admittedly

studied that case. In English, the defendant used the lights on

his vehicle to initiate a traffic stop, displayed a badge around

his neck, announced himself as a special agent to civilians and

demanded identification from them. It is not necessary to

compare English to this case in order to deny Bauer qualified

immunity, but we would be remiss to ignore the fact that

Bauer, equipped with this precedent, arrested Dr. Merchant

for conduct well beyond the established paradigm of an

Impersonation Statute violation.

Accordingly, the second step in our qualified immunity

analysis — whether the Fourth Amendment right was clearly

established — must also be resolved in favor of Merchant. As

a result, the district court did not err in ruling that Officer

Bauer is not, at this stage of the litigation, entitled to qualified

immunity on Merchant’s § 1983 claim.7

7

On February 22, 2012, the Supreme Court decided Messerschmidt v.

Millender, 132 S. Ct. 1235 (2012), another case in which a police officer

sought qualified immunity from § 1983 liability. In Messerschmidt, the

detective investigating an assault submitted warrant applications to his

supervisors and a prosecutor for review before a magistrate issued the

MERCHANT v. BAUER 17

IV.

Pursuant to the foregoing, we affirm the district court’s

denial of summary judgment on Bauer’s qualified immunity

defense.

AFFIRMED

warrants. Id. at 1242-43. Although the Court acknowledged that a magis-

trate’s signature on a warrant is a clear indication of objective reasonable-

ness, it nonetheless emphasized that a lawsuit can proceed when "‘it is

obvious that no reasonably competent officer would have concluded that

a warrant should issue.’" Id. at 1245 (citing Malley, 475 U.S. at 341).

Messerschmidt, therefore, does not control our decision today.