Brandon Pegg v. Nathan Klempa , 651 F. App'x 207 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1889
BRANDON PEGG; KRISTINA PEGG, husband and wife,
Plaintiffs – Appellants,
v.
NATHAN TYLER KLEMPA, individually and in his capacity as
agent and employee of the City of Glen Dale Police
Department; GRANT HERRNBERGER,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:13-cv-00173-FPS)
Submitted: March 15, 2016 Decided: June 6, 2016
Before NIEMEYER, KING, and DIAZ, Circuit Judges.
Affirmed in part, and reversed in part by unpublished per curiam
opinion.
Robert G. McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling,
West Virginia; Paul J. Harris, HARRIS LAW OFFICES, Wheeling,
West Virginia, for Appellants. Montѐ L. Williams, Deva A.
Solomon, Robert L. Bailey, STEPTOE & JOHNSON, PLLC, Morgantown,
West Virginia; Keith C. Gamble, PULLIN, FOWLER, FLANAGAN, BROWN
& POE, PLLC, Morgantown, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Travis Pegg and Kristina Pegg appeal the district
court’s grant of summary judgment in favor of
Defendants-Appellees Nathan Tyler Klempa and Grant P.
Herrnberger on the basis of qualified immunity. The Peggs
raised constitutional claims under 42 U.S.C. § 1983 (2012), as
well as related state law claims, against Klempa and Herrnberger
arising from a traffic stop of the Peggs’ vehicle. The amended
complaint alleged: (1) unlawful arrest of Mr. Pegg; (2) unlawful
detention of Mrs. Pegg; (3) excessive force as to Mr. Pegg;
(4) intentional infliction of emotional distress as to both Mr.
and Mrs. Pegg; (5) battery of Mr. and Mrs. Pegg; and (6) civil
conspiracy to unlawfully detain and search the Peggs.
After the Peggs filed this action, Klempa and Herrnberger
moved for summary judgment, arguing that they were entitled to
qualified immunity. The district court granted the defendants’
motions for summary judgment on the basis of qualified immunity.
In regard to Mr. Pegg’s claims, the court concluded that the
officers had not unreasonably extended the traffic stop and,
once Mr. Pegg refused to exit his vehicle, probable cause
existed to arrest him for obstruction. The court also
determined that, because the arrest of Mr. Pegg was lawful, the
force applied by the officers was not excessive.
2
As to Mrs. Pegg’s claims of unlawful detention, the court
concluded that Herrnberger reasonably believed that she was
dangerous and was therefore justified in frisking her. The
court determined that, similar to Herrnberger’s frisk of Mrs.
Pegg, Klempa’s searches of her purse and the vehicle were
justified by officer safety concerns. 1 Finally, the court
concluded that Mrs. Pegg had not been the victim of a battery as
a result of the frisk, and that the remainder of the Peggs’
state law claims were also barred by qualified immunity.
On appeal, the Peggs assert three errors in the district
court’s decision. First, they argue that the officers
unnecessarily extended the duration of the traffic stop and did
not order Mr. Pegg from the vehicle because of safety concerns.
Therefore, they argue, Mr. Pegg’s arrest for failing to exit the
vehicle was unlawful. Second, they argue that no facts
establish an objective, reasonable suspicion that Mrs. Pegg was
armed and dangerous, and therefore the search of the vehicle,
frisk of Mrs. Pegg, and search of her purse violated the Fourth
1 The court noted that Mrs. Pegg had consented to the search
of her purse, but concluded that it was “unclear whether Mrs.
Pegg’s consent was voluntarily given.” Because the court
determined that the search was valid regardless of consent, it
did not reach a determination as to whether consent was
voluntary.
3
Amendment. Finally, they argue that Herrnberger’s frisk of Mrs.
Pegg constituted battery, as it involved offensive touching.
We “review the district court’s grant of summary judgment
de novo, applying the same standard as the district court . . .
[and] construing the evidence in the light most favorable to
[the Peggs], the non-movant[s].” Walker v. Mod-U-Kraf Homes,
LLC, 775 F.3d 202, 207 (4th Cir. 2014). Summary judgment is
appropriate if there is no genuine issue as to material fact and
“the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
“Qualified immunity protects officers who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). Thus, to successfully avail themselves of
qualified immunity, Klempa and Herrnberger must show either that
no constitutional violation occurred or that the right was not
clearly established at the time it was violated. 2 Id. In
2 West Virginia law similarly follows a two-step inquiry to
determine whether an officer is entitled to qualified immunity:
“(1) does the alleged conduct set out a constitutional or
statutory violation, and (2) were the constitutional standards
clearly established at the time in question?” Hutchison v. City
of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996). Additionally,
an official is not entitled to qualified immunity if his or her
conduct was “fraudulent, malicious, or otherwise oppressive.”
Id.
4
evaluating whether the right was clearly established, we look
“not to whether the right allegedly violated was established ‘as
a broad general proposition’ but whether ‘it would be clear to a
reasonable official that his conduct was unlawful in the
situation he confronted.’” Raub v. Campbell, 785 F.3d 876, 882
(4th Cir.) (quoting Saucier v. Katz, 533 U.S. 194, 201–02
(2001), cert. denied, 136 S. Ct. 503 (2015).
With regard to Mr. Pegg’s claim of unlawful arrest, we
conclude that the district court did not err in finding that the
officers are entitled to qualified immunity. The
constitutionality of a traffic stop is analyzed under a
two-prong standard: first, we determine “whether the officer’s
reason for the traffic stop was legitimate” and, if so, we
examine “whether the officer’s actions during the seizure were
reasonably related in scope to the basis for the traffic stop.”
United States v. Williams, 808 F.3d 238, 245 (4th Cir. 2015)
(internal quotation marks omitted). “Like a Terry stop, the
tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure's ‘mission’—to address the
traffic violation that warranted the stop, and attend to related
safety concerns.” Rodriguez v. United States, 135 S. Ct. 1609,
1614 (2015) (internal citations omitted). The central question
is whether the officer’s action, “viewed objectively and in its
totality, is reasonably directed toward the proper ends of the
5
stop.” United States v. Digiovanni, 650 F.3d 498, 508 (4th Cir.
2011).
As to the first prong, Mr. Pegg concedes that his vehicle
had an inoperative license plate light and therefore the initial
justification for the traffic stop was valid. Regarding the
second prong of the inquiry, we conclude the officers’ actions
up to and including ordering Mr. Pegg from the vehicle were
reasonably directed toward the proper purpose of the traffic
stop.
After stopping the Peggs’ vehicle, Klempa had a brief
conversation with Mr. Pegg regarding the traffic stop, a
conversation that was extended by Mr. Pegg’s initial
recalcitrance. Mr. Pegg eventually turned over his
documentation and Klempa ran checks on the documentation, all of
which was proper. Digiovanni, 650 F.3d at 507. Only five
minutes elapsed by the time Klempa returned to Mr. Pegg’s
vehicle.
Klempa wanted Mr. Pegg to exit the vehicle for two reasons:
(1) because of concerns for officer safety; and (2) to show Mr.
Pegg the burned-out light and issue a verbal warning. This
directive was not unconstitutional.
As an initial matter, the traffic stop itself had not
concluded as Klempa had not yet issued the warning to Mr. Pegg.
See United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008)
6
(“once . . . the police officer has issued the requisite warning
or ticket, the driver must be allowed to proceed on his way”).
Moreover, when viewed in context, ordering Mr. Pegg from the
vehicle was reasonably related to the purpose of the traffic
stop. From the moment the stop began, Mr. Pegg was agitated and
expressed incredulity when notified of the reason for the
traffic stop. Therefore, while it was perhaps unnecessary for
Klempa to order Mr. Pegg from the vehicle, it was also
reasonably directed toward the proper purpose of the stop—
demonstrating to Mr. Pegg that there was a legitimate defect
with his vehicle, and issuing a verbal warning relating to that
defect. Furthermore, Mr. Pegg confirmed during his deposition
that, at the time he was asked to exit his vehicle, the officers
were standing in or near the lane of traffic. The stop occurred
in the evening on New Year’s Eve, an evening when, as the Peggs’
expert testified, there is a higher-than-usual likelihood of
drunk driving. Thus, ordering Mr. Pegg from his vehicle was
also justified by concerns for officer safety.
Because it was reasonably directed toward the purpose of
the stop, Klempa’s decision to order Mr. Pegg from the vehicle
did not unreasonably extend the duration of Mr. Pegg’s
detention. The officers therefore maintained authority to order
Mr. Pegg from the vehicle. Pennsylvania v. Mimms, 434 U.S. 106,
111 (1977). When Mr. Pegg refused the lawful command given by
7
the officers, they had probable cause to believe that Mr. Pegg
was obstructing an officer. See City of Saint Albans v.
Botkins, 719 S.E.2d 863, 872 (W. Va. 2011) (“Once Appellee
refused to comply [with the officer’s order], a reasonable
officer may have believed the refusal to be an attempt to
obstruct the officer”). The arrest was lawful, and Mr. Pegg’s
claim for unlawful arrest therefore fails, as do his related
claims.
Turning to the search of the Peggs’ vehicle, although
warrantless searches of a vehicle are “presumptively
unreasonable,” several exceptions exist. United States v.
Holmes, 376 F.3d 270, 274-75 (4th Cir. 2004). Of relevance to
this case,
the search of the passenger compartment of an
automobile, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police
officer possesses a reasonable belief based on
specific and articulable facts which, taken together
with the rational inferences from those facts,
reasonably warrant the officers in believing that the
suspect is dangerous and the suspect may gain
immediate control of weapons.
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (internal quotation
marks omitted). Thus, to conduct a lawful search pursuant to
such safety concerns, “an officer must possess a reasonable
belief of both (1) the suspect’s dangerousness and (2) the
possibility that the suspect might gain immediate control of any
weapons inside the vehicle.” United States v. Griffin, 589 F.3d
8
148, 153 (4th Cir. 2009). We examine “the totality of the
circumstances in determining whether the requisite reasonable
suspicion existed.” United States v. McCoy, 513 F.3d 405, 411
(4th Cir. 2008).
By the time Klempa performed a search of the vehicle, Mr.
Pegg had been handcuffed and placed in the back of Klempa’s
vehicle. Consequently, any concern for officer safety had to be
based on a threat posed by Mrs. Pegg, rather than Mr. Pegg. The
district court determined that the officers had a reasonable
suspicion that Mrs. Pegg was dangerous because: (1) it was
evening on New Year’s Eve; (2) prior to being arrested, Mr. Pegg
had been agitated and failed to follow officer commands; (3) it
would be “reasonable . . . to believe that . . . Mrs. Pegg[] was
also agitated and a risk” to officer safety; and (4) Mrs. Pegg
had opened her car door and asked why her husband was being
arrested.
Certainly, the fact that the stop occurred at nighttime on
New Year’s Eve supports reasonable suspicion. Even assuming
that Mr. Pegg’s agitation and failure to comply with officer
commands is relevant to Mrs. Pegg’s dangerousness, these
circumstances fall well short of the requisite reasonable
suspicion needed to believe that Mrs. Pegg was a threat.
9
No evidence demonstrates that Mrs. Pegg was nervous, angry,
or irritated. 3 To the contrary, she was cooperative and
compliant during the traffic stop. When Mr. Pegg was initially
uncooperative with Klempa, Mrs. Pegg encouraged him to comply
with Klempa’s order. When asked, Mrs. Pegg: (1) produced her
identification; (2) closed her door and stayed quiet; (3) exited
the vehicle to be searched; and (4) lifted her shirt and coat to
expose her torso to Herrnberger. During his deposition,
Herrnberger was unable to remember or articulate a single fact
that supported a reasonable suspicion that Mrs. Pegg presented a
threat.
3Contrary to the district court’s determination, it is
entirely reasonable for an individual, upon witnessing her
spouse being handcuffed and placed in a police cruiser, to ask
if and why her spouse was being arrested. Nor is it suspicious
that Mrs. Pegg opened the door to do this, as she did so merely
to gain the attention of one of the officers. See United
States v. McCraney, 674 F.3d 614, 621 (6th Cir. 2012)
(concluding that, where an individual exits the vehicle not to
flee but to get the officer’s attention, such behavior does not
contribute to reasonable suspicion).
Additionally, we question the district court’s
determination that it would be reasonable to assume that Mrs.
Pegg was agitated. There is no indication that Mrs. Pegg was
angry, agitated, or irritated during or after her husband’s
arrest or that the officers believed she was agitated and,
absent such evidence, reaching that assumption on summary
judgment inappropriately ignored the requirement that facts be
viewed in the light most favorable to Mrs. Pegg, and that all
reasonable inferences be drawn in her favor. Any assumed
agitation cannot, therefore, support a particularized suspicion
that Mrs. Pegg was dangerous.
10
The evidence establishes that Mrs. Pegg had no known
criminal history or history of violence. At the time the search
was conducted, no individuals were near the officers other than
Mrs. Pegg, and the officers outnumbered Mrs. Pegg three to one.
There is no evidence that the location of the traffic stop was a
high crime area. Nor is there any evidence that the officers
actually believed that Mrs. Pegg posed a threat; indeed, they
left her entirely unattended, prompting her to open her door
simply to gain an officer’s attention. We therefore conclude
that no reasonable officer would have believed that Mrs. Pegg
was dangerous.
Moreover, Mrs. Pegg’s right to be free from a search under
these circumstances was clearly established at the time of the
traffic stop. See United States v. Neely, 564 F.3d 346 (4th
Cir. 2009). Police may conduct a frisk of a passenger during a
traffic stop where: (1) “it is lawful for police to detain an
automobile and its occupants pending inquiry into a vehicular
violation;” and (2) the police “harbor reasonable suspicion that
the person subjected to the frisk is armed and dangerous.”
Arizona v. Johnson, 555 U.S. 323, 327 (2009).
Reasonable suspicion must be particularized and objective.
“The officer need not be absolutely certain that the individual
is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety
11
or that of others was in danger.” United States v. Powell, 666
F.3d 180, 186 (4th Cir. 2011) (quoting Terry v. Ohio, 392 U.S.
1, 27 (1968)). This determination must be “based on commonsense
judgments and inferences about human behavior and it is measured
by the totality of the circumstances.” Id. (quoting Illinois v.
Wardlow, 528 U.S. 119, 125 (2000)).
As detailed above, the evidence in this case strongly
supports a conclusion that no reasonable officer would have
believed that Mrs. Pegg was dangerous. Although the stop
occurred after dark, and Mr. Pegg was somewhat uncooperative but
not threatening during the stop, there is simply no evidence
that Mrs. Pegg presented any threat.
Furthermore, at the time of the search, a number of our
cases made clear that something more than the circumstances
facing Klempa and Herrnberger was required to support a belief
that Mrs. Pegg was dangerous. See Powell, 666 F.3d at 187-88
(knowledge of a past criminal record and providing officers with
false information was insufficient to create reasonable
suspicion); United States v. Massenburg, 654 F.3d 480, 488-91
(4th Cir. 2011) (presence in a high crime area shortly after
police received anonymous tip concerning random gunfire in the
area does not create reasonable suspicion); United States v.
Foster, 634 F.3d 243, 246-49 (4th Cir. 2011) (knowledge of a
12
suspect’s criminal history, sudden movements, and arm shifting
were insufficient).
We thus conclude that, at the summary judgment stage,
Herrnberger is not entitled to qualified immunity for his frisk
of Mrs. Pegg, and Klempa is not entitled to qualified immunity
for his search of Mrs. Pegg’s purse. 4
Finally, in West Virginia, an individual commits the tort
of battery where “(a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third
person, or an imminent apprehension of such a contact, and (b) a
harmful contact with the person of the other directly or
indirectly results.” W. Va. Fire & Cas. Co. v. Stanley, 602
S.E.2d 483, 494 (W. Va. 2004) (quoting Restatement (Second) of
Torts, § 13 (1965)).
We conclude that an unauthorized frisk constitutes an
offensive contact sufficient to satisfy the requirements for
battery. See Terry, 392 U.S. at 24-25 (“Even a limited search
of the outer clothing for weapons . . . must surely be an
annoying, frightening, and perhaps humiliating experience”).
Moreover, because Herrnberger conducted a frisk that was not
4As previously noted, the district court did not resolve
the question of whether Mrs. Pegg voluntarily consented to the
search of her purse. Because the issue of consent was not
decided by the district court and has not been raised on appeal,
we leave resolution of this issue to the district court.
13
necessary for officer safety, he was not privileged to create
that offensive contact with Mrs. Pegg. See Restatement (Second)
of Torts § 10 (2)(b) (1965) (A privilege may be based upon . . .
the fact that its exercise is necessary for the protection of
some interest . . .”). We therefore conclude that the district
court erred in granting summary judgment in favor of Herrnberger
on this claim.
Accordingly, we affirm in part and reverse in part the
district court’s order, and remand for further proceedings
consistent with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED IN PART,
REVERSED IN PART
14