Kristen Decina v. Horry County Police Department ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2171
KRISTEN DECINA,
Plaintiff – Appellant,
v.
HORRY COUNTY POLICE DEPARTMENT; AMOS BERRY,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at Florence.
Joseph Dawson, III, District Judge. (4:19-cv-02079-JD)
Argued: December 8, 2022 Decided: February 21, 2023
Before WILKINSON and HEYTENS, Circuit Judges, and Henry E. HUDSON, Senior
United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James Bernice Moore, III, EVANS MOORE, LLC, Georgetown, South
Carolina, for Appellant. J.W. Nelson Chandler, CHANDLER & DUDGEON LLC,
Charleston, South Carolina, for Appellees. ON BRIEF: Kathleen C. Barnes, BARNES
LAW FIRM, LLC, Hampton, South Carolina; Scott C. Evans, EVANS MOORE, LLC,
Georgetown, South Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kristen Decina brought a 42 U.S.C. § 1983 claim against Officer Amos Berry and
the Horry County Police Department for false arrest, malicious prosecution, and other
related state law claims following her arrest on domestic violence charges resulting from a
dispute between her and her former live-in boyfriend. Defendants filed a motion for
summary judgment arguing inter alia that Decina’s arrest was made pursuant to a facially
valid arrest warrant supported by probable cause. Defendants also maintain that Officer
Berry was entitled to qualified immunity for any alleged constitutional violations. The
district court adopted the magistrate judge’s Report and Recommendation and granted
Defendants’ motion for summary judgment. Decina filed this appeal challenging the
district court’s order. We affirm.
I
In reviewing the district court’s grant of summary judgment, we view the facts in
the light most favorable to Appellant. Estate of Jones v. City of Martinsburg, 961 F.3d
661, 644 (4th Cir. 2020). The material facts underlying this dispute were drawn from
Officer Berry’s incident report, written statements provided by Decina and her former live-
in boyfriend, Brandon Atkinson, and interviews with both parties as they were recorded on
Officer Berry’s body camera. The dispositive facts are not genuinely contested.
On January 6, 2018, at 9:03 a.m., Officer Berry was dispatched to Decina’s home
and arrived at approximately 9:11 a.m. to investigate a domestic dispute that had occurred
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several hours earlier. 1 Officer Berry investigated the incident and interviewed the only
witnesses—Decina and Atkinson—pursuant to HCPD’s General Order 20-8 (the
“Domestic Violence Policy”). In accordance with the Domestic Violence Policy, Officer
Berry asked both parties to prepare an individual written statement documenting the events
as they believed them to be. Both parties reported some common facts but largely
conveyed different accounts of what happened that morning.
When Officer Berry first arrived at Decina’s residence, he asked her if she had any
injuries because that was a prerequisite to investigating the incident as a domestic violence
incident. He also told her that he would also need to get Atkinson’s version of what
occurred. Decina stated that she understood and then said “my thing is like there’s $5,000
damage to my car[.]” J.A. Vol. II Pl. 1 Video-HCPD 156, 03:19-03:35. Decina stated she
did not know what to do and Officer Berry explained that he could not provide legal advice,
but that if she wanted to pursue a domestic violence charge, he would need a statement
from both parties. Decina then asked Officer Berry to document the damage to her car.
Officer Berry then directed Decina to draft a written statement outlining the
underlying events. Officer Berry described the procedures for processing domestic
violence investigations, specifying that he would interview both parties and if he could not
1
Decina claims that she made a 911 call at around 1:30 a.m. and suggests this was
the call to which Officer Berry responded, but no 911 call from this time period is in the
record and the only evidence in the record was that Officer Berry was dispatched at 9:03
a.m. Even so, Officer Berry testified that he asked dispatch about any previous 911 calls
and was told that there was only the 9:00 a.m. call for which he was dispatched. See J.A.
435–36.
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determine which party was the primary aggressor, the information would be presented to a
judge to determine if warrants for both parties were appropriate. Decina completed her
statement while Officer Berry took photos of the damage to Decina’s property.
Officer Berry asked Decina if it was her wish to pursue domestic violence charges
against Atkinson. Officer Berry replied that it was up to the solicitor to decide whether
prosecution was appropriate. He explained that he was required to investigate both sides
of the story before the judge “can make a determination of if they want to issue warrants
or not.” Id., 11:07-11:59.
Officer Berry reviewed Decina’s completed statement and continued to interview
her. Decina explained that Atkinson no longer lived with her or had a key to her home.
Although she told Atkinson not to come over that night, he appeared at her home anyway
and knocked on the door for five minutes until she eventually let him in. Atkinson was
drunk and high and refused to leave after she repeatedly asked him to do so. Decina stated
that the physical altercation between the two began when Atkinson “became enraged” after
she replied to a message on his cell phone. Decina wrote in her statement and told Officer
Berry that Atkinson “pushed her, punched her in the stomach, grabbed her hands and hair,
banged her hands down, dug his fingers into her hands, and held her down while she
thrashed to get free.” J.A. 93; J.A. Vol. II Pl. 1 Video-HCPD 156, 30:26-30:30. Decina
showed Officer Berry photos on her phone of the injuries she believed Atkinson caused to
her wrist, hands, and hip. She stated she acted in self-defense.
Decina explained that after the physical altercation, she locked herself in the
bathroom with Atkinson’s phone to protect herself, and then Atkinson punched a hole
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through the bathroom door. She then ran out of the bathroom and threw the phone outside
of the house to try to make Atkinson leave. When Atkinson attempted to retrieve his phone,
Decina locked him outside. While outside, Atkinson beat and screamed at the front door
of her home and damaged her vehicle. Officer Berry took custody of Atkinson’s damaged
phone, which was located outside of Decina’s house.
After Officer Berry interviewed Decina, he drafted his case report, including the
narrative summary of the facts Decina provided to him. Officer Berry then had HCPD
dispatch another officer to Atkinson’s mother’s house to get Atkinson’s version of events,
but no one answered the door. Officer Berry eventually spoke to Atkinson by phone, gave
him his Miranda rights, and arranged to meet with him in person. He explained over the
phone that he needed Atkinson’s version of events “because any time domestic violence is
involved it has to be presented to a judge.” J.A. 153.
Atkinson provided a different version of events. He explained that he went into
Decina’s home and Decina asked him to show her his phone. When he showed her his
phone, she grabbed it and ran into the bathroom and locked the door. Atkinson tried to
open the door and put a hole in the door with his knee. When Decina opened the door, she
slammed his phone to the ground, picked it up, and threw it outside. Decina then turned
around and “charged” him into the wall and “knocked [him] to the ground.” J.A. Vol. II
Atkinson Video-HCPD 155, 00:00-08:48. Atkinson attempted to talk to Decina, but she
“charged [him] again.” Id. Decina then threw a knife at him and the knife handle hit him
in the head, leaving no mark. Id. Then, Decina struck him “in the head and body with her
fist.” Id. Atkinson stated, “I grabbed her and tried to calm her down [and] she bit me in
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the chest and said she was calling the police so I went outside to look for my phone and
wait for the police.” Id. He explained that he kicked Decina’s car “out of frustration”
before returning to the front door of Decina’s house. J.A. 96.
Officer Berry then reviewed Atkinson’s written statement and asked follow-up
questions. Atkinson denied being intoxicated and explained that Decina originally told
him not to come over but eventually let him in, as she had done in the past. Atkinson stated
that he thought he might have gotten a bruise on the back of his head from hitting the wall
and a bite mark on his chest. Officer Berry told Atkinson that because both parties had
marks on their bodies, he had to present both cases to the judge to determine what action
was appropriate. Atkinson claimed that he never hit Decina and that “he was on the defense
the whole time.” J.A. Vol. II Atkinson Video-HCPD 155, 23:10-24:45. Officer Berry
advised Atkinson that the competing claims of malicious damage to property—Decina’s
car and bathroom door, and Atkinson’s phone—would be presented to the judge in his
incident report at a later date because he was waiting for an estimate of the damage to
Decina’s vehicle.
South Carolina’s Criminal Domestic Violence statute, S.C. Code Ann. § 16-25-70(the “CDV” statute), states that an officer:
who arrests two or more persons for a crime involving domestic or family
violence must include the grounds for arresting both parties in the written
incident report, and must include a statement in the report that the officer
attempted to determine which party was the primary aggressor pursuant to
this section and was unable to make a determination based upon the evidence
available at the time of the arrest.
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S.C. Code Ann. § 16-25-70(F). To determine the primary aggressor, the CDV statute
requires an officer to:
consider the following factors and any other factors he considers relevant:
(1) prior complaints of domestic or family violence;
(2) the relative severity of the injuries inflicted on each person taking into
account injuries alleged which may not be easily visible at the time of the
investigation;
(3) the likelihood of future injury to each person;
(4) whether one of the persons acted in self-defense; and
(5) household member accounts regarding the history of domestic violence.
Id. § 16-25-70(D). HCPD policy requires that an officer who receives complaints of two
or more parties “must evaluate each complaint separately to determine whether there is
probable cause for an arrest.” J.A. 152. “The arrest and charge of both parties for domestic
violence on each other is strongly discouraged. If both parties are arrested, the officer shall
include in the report the grounds for arresting two or more parties.” Id. In South Carolina,
a criminal proceeding before a magistrate judge “shall be commenced on information under
oath, plainly and substantially setting forth the offense charged, upon which, and only
which, shall a warrant of arrest issue.” S.C. Code. Ann. § 22-3-710.
As the interview with Atkinson concluded, Officer Berry explained that he would
present the domestic violence case to the magistrate judge because it was difficult to
identify the primary aggressor based on the conflicting versions of the event. Atkinson
told Officer Berry that he preferred to address the malicious damage charges outside the
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legal system and offered to pay Decina for the damage to her car but if she were to press
charges, he would then press charges against Decina because she damaged his phone. 2
After interviewing Atkinson, Officer Berry updated his incident report narrative to
reflect the information Atkinson provided to him. Officer Berry concluded in his report,
“[b]ased on talking with both parties and what they wrote I can’t determine who the
primary aggressor is so this case will be presented for domestic violence for both parties.”
J.A. 85. At some point during the investigation, Officer Berry ran criminal histories on
both parties regarding prior convictions for criminal domestic violence and found that no
histories were reported. Officer Berry was aware of and obtained photographs of the
injuries claimed by both parties, and knew that Atkinson no longer lived with Decina, nor
had a key to her residence.
Pursuant to the Domestic Violence Policy, Officer Berry completed and uploaded
his report and proposed charging documents “before the end of his tour of duty.” J.A. 154.
Officer Berry was not scheduled to work the following day but knew that the case needed
to be presented to a magistrate judge the next day in accordance with the Domestic
Violence Policy that requires domestic violence cases “be presented to a magistrate within
24 hours.” Id. At 7:34 p.m. on Saturday, June 6, 2018, Officer Berry sent an email to the
“JRL Magistrate Office” with the subject line: “Warrant Aff along with Report and
Pictures,” with the following documents attached: (1) a warrant request form seeking an
2
The Court takes judicial notice that Atkinson was ultimately charged by Officer
Berry with felony malicious damage to personal property on May 16, 2018, but the charge
was nolle prossed on February 8, 2019.
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arrest warrant against Atkinson; (2) a warrant request form seeking an arrest warrant for
Decina; (3) Officer Berry’s entire case report; and (4) photos documenting Decina’s
injuries and property damage to her vehicle and bathroom door, and the bite mark on
Atkinson. J.A. 70–88.
Because Officer Berry was not on duty the following day, Officer Deanne
Pennington presented Officer Berry’s warrant requests to the county magistrate judge while
under oath. It is standard practice for other officers to present warrants on behalf of off-
duty officers, and for warrant presentations to include the warrant request forms and the
supplemental case report. Officer Pennington read Officer Berry’s warrant requests forms
and case report before presenting the case to the magistrate judge and knew that she could
call Officer Berry if she had questions. While presenting the warrant requests, she testified
to the information in the forms and physically provided another copy of Officer Berry’s
case report directly to the magistrate judge. She encouraged the magistrate judge to read
Officer Berry’s case report. The magistrate judge found probable cause and issued
warrants seeking the arrest of both Decina and Atkinson.
On January 22, 2018, Decina turned herself in and was booked and released within
four hours. On March 2, 2018, her case was dismissed at her preliminary hearing when
the solicitor took “no position on this case.” J.A. 438. Decina later had her arrest
expunged. Thereafter, Decina filed this action under 42 U.S.C. § 1983 contending that she
was arrested and prosecuted without probable cause. The district court determined Decina
failed to establish a violation of her constitutional rights, that Officer Berry had probable
cause to arrest her, and was otherwise entitled to qualified immunity.
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II
We “review[] de novo the district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district
court ‘shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.’” Id. at
568 (quoting Fed. R. Civ. P. 56(a)). In determining whether a genuine issue of material
fact exists, “we view the facts and all justifiable inferences arising therefrom in the light
most favorable to . . . the nonmoving party.” Id. at 565 n.1 (internal quotation marks
omitted). However, “the nonmoving party must rely on more than conclusory allegations,
mere speculation, [or] the building of one inference upon another.” Humphreys & Partners
Architects v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation
marks omitted). “[T]he relevant inquiry is whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019)
(internal quotation marks omitted).
There is no dispute that Decina was arrested pursuant to a facially valid warrant
issued by a disinterested magistrate judge. In such cases, to establish liability under 42
U.S.C. § 1983 for a Fourth Amendment violation, Decina must establish that she was
seized pursuant to legal process unsupported by probable cause. 3 See Humbert v. Mayor
3
In Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996), we recognized
that a claim for false arrest may be considered only when no arrest warrant has been
obtained. See also Heck v. Humphrey, 512 U.S. 477, 483–84 (1994) (“[A]llegations that
(Continued)
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and City Couns. of Baltimore City, 866 F.3d 546, 555 (4th Cir. 2017), as amended
(Aug. 22, 2017). A party challenging the veracity of a warrant application “must show that
the officer(s) deliberately or with reckless disregard for the truth made material false
statements in the warrant application” or “omitted from that application material facts with
the intent to make, or with reckless disregard of whether they thereby made, the application
misleading.” Id. at 556 (internal quotation marks and citations omitted).
Decina argues on appeal that Officer Berry omitted material facts with reckless
disregard by failing to properly inform the magistrate judge of facts he knew would negate
probable cause. 4 Decina does not contest that the alleged omitted facts were in Officer
Berry’s investigatory report. Rather, she claims that Officer Berry’s act of emailing an
unsworn report with additional facts to a general inbox for the magistrate court, coupled
with delegating Officer Pennington to appear on his behalf with no personal knowledge of
the case, was insufficient since the magistrate judge could not legally rely on that unsworn
information. In other words, Decina argues that Officer Berry’s act of submitting
“unsworn” facts in his supplemental case report is tantamount to recklessly “omitting” facts
an arrest made pursuant to a warrant was not supported by probable cause . . . are analogous
to the common-law tort of malicious prosecution,” whereas “allegations that a warrantless
arrest . . . was not supported by probable cause advance[] a claim of false arrest”). Because
it is undisputed that Officer Berry obtained a warrant to arrest Decina, no “false arrest” of
Decina could have occurred.
4
Decina argues that the warrant request states facts that Decina caused physical
harm to Atkinson and used a weapon but omits the following allegedly material facts: (1)
Decina repeatedly asked Atkinson not to come to her home, (2) Atkinson was intoxicated,
(3) Atkinson physically injured Decina and Officer Berry saw her fresh injuries, and (4)
Atkinson admitted he caused property damage to Decina’s home and vehicle.
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for purposes of Fourth Amendment review. She also maintains that there is a factual
dispute as to whether the magistrate judge ever read Officer Berry’s report. Decina also
contends that Officer Berry is not entitled to qualified immunity because there was no
probable cause for her arrest. 5
The district court correctly concluded that unsworn items in an investigatory file
can be used to establish probable cause, and that there is nothing in the record to show that
the magistrate judge failed to consider the information available to him to fulfill his duties.
Furthermore, Decina is unable to demonstrate that Officer Berry omitted any facts, much
less that he did so with reckless disregard for the accuracy of the application. See Miller
v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007) (explaining that the inquiry
for determining whether an officer omits material facts turns on whether the officer “failed
to inform the judicial officer” of facts known to negate probable cause). Here, Officer
Berry provided all relevant information to the magistrate judge, some of which was in the
supplemental investigatory report. Officer Berry did not “hide facts” from the magistrate
judge that he knew would negate probable cause. Id. at 630. Once Officer Pennington was
placed under oath before the magistrate judge, she submitted Officer Berry’s arrest warrant
applications for Decina and Atkinson, along with Officer Berry’s full incident report for
5
Decina also argues that the district court erred in overruling two of her objections
as non-specific “because it took a narrow view of her objections and failed to consider the
significance of those objections to the merits of her argument.” Appellant’s Br. at 20. The
Court agrees with the district court’s determination that the objections merely restated
arguments Decina had previously raised in her opposition to summary judgment.
Moreover, Decina’s argument is unclear because she does not explain how any alleged
error in this regard would impact the outcome of this appeal.
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the judge’s review (even though he already had a copy before him) and encouraged him to
read it. 6
Furthermore, Appellees correctly point out that the facts upon which Decina relies
are immaterial to the dispositive issue at hand, namely, whether probable cause existed
based upon the warrant affidavit. In determining whether probable cause would have
existed if omitted facts were included in the original affidavit, the omitted information
“must be such that its inclusion in the affidavit would defeat probable cause for arrest.
Omitted information that is potentially relevant but not dispositive is not enough . . . .”
United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990). Here, the district court
properly concluded that probable cause existed at the time the warrant was issued.
“Probable cause is not a high bar, and it must be assessed objectively based on a totality of
the circumstances, including common-sense conclusions about human behavior.” United
States v. Jones, 952 F.3d 153, 158 (4th Cir. 2020). Decina was charged with second degree
domestic violence in violation of S.C. Code Ann. § 16-25-20. This statute makes it
“unlawful to: (1) cause physical harm or injury to a person’s own household member 7; or
(2) offer or attempt to cause physical harm or injury to a person’s own household member
6
As Appellees point out, even if Officer Berry did omit material facts, Decina fails
to establish that Officer Berry acted with the requisite culpability. See United States v.
Colkley, 899 F.2d 297, 300–01 (4th Cir. 1990) (citing Franks v. Delaware, 438 U.S. 154(1978)).
“[H]ousehold member” is defined as “a male and female who are cohabitating or
7
formerly have cohabitated.” S.C. Code Ann. § 16-25-10(3)(d).
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with apparent present ability under circumstances reasonably creating fear of imminent
peril.” S.C. Code Ann. § 16-25-20(A).
Officer Berry charged Decina with second degree domestic violence because
Decina reportedly assaulted Atkinson with a knife. To establish probable cause, Officer
Berry needed to present facts establishing that Decina was a household member of
Atkinson, she attempted to cause physical harm or injury to Atkinson, and did so by means
likely to result in significant bodily injury to Atkinson. The warrant facially satisfies these
elements: “the defendant used her personal weapons by physically assaulting her ex-
boyfriend with whom [s]he has formerly cohabitated . . . [T]he defendant then picked up a
knife and threw it at the victim striking him in the head with the handle.” J.A. 189.
Inclusion of the additional facts identified by Decina into the warrant application would
not defeat the existence of probable cause. Moreover, Decina’s argument that there was
no probable cause to arrest her because Officer Berry failed to make a primary aggressor
assessment fails. In investigating the incident, Officer Berry considered the relevant
statutory factors and later testified that he could not determine who the primary aggressor
was because he received conflicting statements. South Carolina allows for officers to
submit applications for arrest warrants for both parties in such circumstances, which is
what took place in the case at hand. Officer Berry’s failure to identify a primary aggressor
does not mean there was no probable cause for Decina’s arrest.
Lastly, the district court correctly concluded that Officer Berry is entitled to
qualified immunity. “The Fourth Amendment prohibits law enforcement officers from
making unreasonable seizures, and seizure of an individual effected without probable cause
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is unreasonable.” Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 183 (4th Cir. 1996).
Government officials performing discretionary functions are generally shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. See
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When evaluating a qualified immunity
defense, the court must determine whether the facts alleged, taken in the light most
favorable to the plaintiff, show that the defendant’s conduct violated a constitutional right
and whether that right was clearly established at the time of the alleged misconduct. See
Pearson v. Callahan, 555 U.S. 223, 230–33 (2009). The Court determined that Officer
Berry had probable cause to arrest Decina. Even when viewing the evidence in the light
most favorable to Decina, the Court finds that Officer Berry did not violate Decina’s
constitutional rights and that he performed the discretionary functions of his official duties
in an objectively reasonable fashion, and thus is entitled to qualified immunity.
For the foregoing reasons, we affirm the district court’s grant of Defendants’ motion
for summary judgment.
AFFIRMED
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