Summary
holding that the plaintiff could not bring a cause of action under the North Carolina Constitution against police officer in his official capacity because the plaintiff could seek a remedy for his injury through a state law claim of malicious prosecution
Summary of this case from Johnson v. GrierOpinion
No. COA12–1520.
2013-08-6
Bryan DEBAUN, Plaintiff v. Daniel J. KUSZAJ, also known as D.J. Kuszaj, a Durham police officer in his individual and official capacity; City of Durham, North Carolina; Defendants.
M. Alexander Charns, for plaintiff-appellant. Office of the City Attorney, by Kimberly M. Rehberg, for defendant-appellee City of Durham.
Appeal by plaintiff from order entered 5 September 2012 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 10 April 2013. M. Alexander Charns, for plaintiff-appellant. Office of the City Attorney, by Kimberly M. Rehberg, for defendant-appellee City of Durham.
Kennon Craver, PLLC, by Joel M. Craig, for defendant-appellee Daniel J. Kuszaj.
CALABRIA, Judge.
Bryan DeBaun (“plaintiff”) appeals from the trial court's order granting summary judgment in favor of Daniel J. Kuszaj and the City of Durham (“defendants”) on plaintiff's claims for assault and battery, use of excessive force, malicious prosecution, and violation of plaintiff's rights under the North Carolina Constitution. We affirm.
I. Background
On the evening of 23 July 2009 and in the early morning hours of 24 July 2009, Officer Daniel J. Kuszaj (“Officer Kuszaj”) of the Durham Police Department (“DPD”) was on patrol and observed plaintiff standing or walking in a turning lane, carrying a twelve-pack of beer. Officer Kuszaj approached plaintiff and asked him for identification, which plaintiff provided. Since plaintiff appeared to Officer Kuszaj to be intoxicated, Officer Kuszaj decided to take plaintiff into custody for his own safety. When Officer Kuszaj started restraining plaintiff with handcuffs, plaintiff asked whether he was under arrest, and Officer Kuszaj said no. Officer Kuszaj then continued trying to restrain plaintiff, but plaintiff ran away. Officer Kuszaj then directed his electronic impulse device (“taser”) into plaintiff's back. As a result, plaintiff immediately fell down, hitting his face on the concrete and breaking his nose and jaw.
Plaintiff was transported to Duke Hospital, where Officer Kuszaj issued plaintiff a citation for impeding the flow of traffic, drunk and disorderly conduct, and resisting, delaying or obstructing an officer (“resisting an officer”). After a trial in Durham County District Court, plaintiff was found not guilty of drunk and disorderly conduct and resisting an officer, but found guilty of impeding traffic. Plaintiff incurred medical and dental expenses in excess of $30,000.00 for permanent injuries he sustained in the fall.
On 14 July 2011, plaintiff filed a complaint seeking damages and permanent injunctive relief. Plaintiff asserted claims of assault and battery, use of excessive force (“excessive force”), and malicious prosecution against the City of Durham and against Officer Kuszaj in both his official and individual capacities. In the alternative, plaintiff claimed defendants violated his rights under Article I, Sections 19, 20, 21, and 35 of the North Carolina Constitution. Defendants filed an answer denying the material allegations of the complaint and asserting the affirmative defenses of governmental immunity and public officer immunity.
On 25 July 2012, defendants filed a motion for summary judgment. After a hearing, the trial court granted defendants' motion with respect to all of plaintiff's claims. The court based its ruling on the “insufficiency of the forecast of evidence as to the elements of each such claim” and made no ruling with respect to Officer Kuszaj's affirmative defense of public official immunity. Plaintiff appeals.
II. Standard of Review
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted).
The burden is upon the moving party to show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Once the moving party has met its burden, the opposing party must forecast evidence indicating the existence of a triable issue of material fact. All facts asserted by the [nonmoving] party are taken as true and their inferences must be viewed in the light most favorable to that party.
Woods v. Mangum, 200 N.C.App. 1, 5, 682 S.E.2d 435, 438 (2009)(internal quotations and citations omitted), aff'd per curiam, 363 N.C. 827, 689 S.E.2d 858 (2010).
III. Malicious Prosecution
Plaintiff argues that the trial court erred by granting defendants' motion for summary judgment on plaintiff's claim for malicious prosecution. We disagree.
To prove a claim for malicious prosecution, a plaintiff must show that: “(1) the defendant instituted, procured, or participated in a criminal proceeding against the plaintiff; (2) without probable cause; (3) with malice; and (4) the criminal proceeding terminated in favor of the plaintiff.” Chidnese v. Chidnese, 210 N.C.App. 299, 305, 708 S.E.2d 725, 731 (2011).
In the instant case, plaintiff's allegations of malicious prosecution against Officer Kuszaj pertain to two of the criminal charges, drunk and disorderly conduct and resisting an officer, for which Officer Kuszaj issued a citation to plaintiff. There is no dispute regarding the first and fourth elements of malicious prosecution, that the defendant instituted, procured, or participated in a criminal proceeding against the plaintiff and that the criminal proceeding terminated in favor of the plaintiff.
Although the second element, lack of probable cause, “may not be inferred from malice, the rule is well settled that malice may be inferred from want of probable cause, e.g., as where there was a reckless disregard of the rights of others in proceeding without probable cause.” Cook v. Lanier, 267 N.C. 166, 170, 147 S.E.2d 910, 914 (1966). Therefore, we must first determine if a genuine issue of material fact exists with respect to whether or not Officer Kuszaj had probable cause to issue plaintiff a citation for drunk and disorderly conduct and resisting an officer.
To establish whether Officer Kuszaj had probable cause to issue a citation to plaintiff for drunk and disorderly conduct and resisting an officer, the relevant inquiry is “whether the facts and circumstances within the knowledge of the defendant, at the time he instituted the criminal prosecution, were sufficient to induce a reasonably prudent man ... to suspect that the plaintiff was guilty of the offense charged[.]” Bryant v. Murray, 239 N.C. 18, 23, 79 S.E.2d 243, 247 (1953). “Whether probable cause exists is a mixed question of law and fact, but where the facts are admitted or established, the existence of probable cause is a question of law for the court.” Best v. Duke Univ., 337 N.C. 742, 750, 448 S.E.2d 506, 510 (1994) (internal quotation and citation omitted). The acquittal of a defendant by a court of competent jurisdiction “should not be considered as evidence on the issue as to probable cause or malice.” Abbitt v. Bartlett, 252 N.C. 40, 44, 112 S.E.2d 751, 754 (1960).
A. Drunk and Disorderly Conduct
A person can be charged with the offense of drunk and disorderly conduct if that person is found “in a public place ... intoxicated and disruptive ... blocking or otherwise interfering with traffic on a highway or public vehicular area....” N.C. Gen.Stat. § 14–444(a) (2011). The undisputed evidence establishes that prior to Officer Kuszaj's decision to restrain plaintiff, he observed plaintiff standing or walking in the turning lane of a public street, attempting to cross the street while carrying a twelve-pack of beer and waving his arms at traffic. Officer Kuszaj testified in his deposition that plaintiff appeared unsteady on his feet, and plaintiff admitted having consumed eight to twelve beers prior to his encounter with Officer Kuszaj. Plaintiff's undisputed behavior was sufficient to induce a reasonably prudent person to suspect that he was guilty of the offense of drunk and disorderly conduct.
B. Resisting an Officer
Pursuant to N.C. Gen.Stat. § 14–223 (2011), it is unlawful to “resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office.” Conduct proscribed under the resisting an officer statute “ ‘is not limited to resisting an arrest but includes any resistance, delay, or obstrction of an officer in the discharge of his duties.’ “ State v. Washington, 193 N.C.App. 670, 679, 668 S.E.2d 622, 628 (2008) (citation omitted).
Our General Statutes permit a law enforcement officer to “assist an [intoxicated] individual ... in a public place by ... direct[ing] or transport [ing] the intoxicated individual home ... or transport[ing] him to an area facility, hospital, or physician's office.” N.C. Gen.Stat. § 122C–301(a) (2011). In providing the assistance authorized under subsection (a), “the officer may use reasonable force to restrain the intoxicated individual if it appears necessary to protect himself, the intoxicated individual, or others.” N.C. Gen.Stat. § 122C–301(b) (2011).
As previously noted, the evidence was undisputed that plaintiff was intoxicated in a public place. Officer Kuszaj testified in his deposition that due to this intoxication, he attempted to restrain plaintiff by placing him in custody for his own protection, at which time plaintiff ran away. Plaintiff's conduct was sufficient to induce a reasonably prudent man to believe that plaintiff was guilty of resisting an officer pursuing his lawful duties pursuant to N.C. Gen.Stat. § 122C–301.
Plaintiff contends that an affidavit from his expert witness, Dave Cloutier (“Cloutier”), in which Cloutier averred that he did not believe Officer Kuszaj had probable cause to arrest plaintiff, creates a genuine issue of material fact as to this claim. However, where, as here, the relevant evidence is undisputed, the existence of probable cause is a question of law for the court and not properly the subject of expert opinion. See Norris v. Zambito, 135 N.C.App. 288, 292, 520 S.E.2d 113, 116 (1999)(“Opinion testimony may be received regarding the underlying factual premise, which the fact finder must consider in determining the legal conclusion to be drawn therefrom, but may not be offered as to whether the legal conclusion should be drawn.”). Thus, Cloutier's affidavit is insufficient to create a genuine issue of material fact regarding the existence of probable cause.
Since the undisputed evidence regarding plaintiff's behavior would induce a reasonably prudent law enforcement officer to believe that plaintiff was guilty of drunk and disorderly conduct and resisting an officer, Officer Kuszaj had probable cause to issue plaintiff citations for both offenses as a matter of law. The trial court therefore properly granted summary judgment on plaintiff's malicious prosecution claim.
IV. Excessive Force and Assault and Battery
Plaintiff also argues that the trial court erred by granting defendants' motion for summary judgment on plaintiff's excessive force and assault and battery claims. Although we agree that the trial court erroneously granted summary judgment on these claims for lack of evidentiary support, we find that public official immunity, raised by defendants before the trial court and on appeal, provides a sufficient alternative basis to justify affirming the trial court.
A. Excessive Force
N.C. Gen.Stat. § 122C–301(a) lists the authorized ways in which a law enforcement officer may assist an individual found intoxicated in public, including transporting the individual to his or her home, to another residence, or to a medical facility. N.C. Gen.Stat. § 122C–301(a) (2011). “In providing the assistance authorized by subsection (a) ..., the officer may use reasonable force to restrain the intoxicated individual if it appears necessary to protect himself, the intoxicated individual, or others.” N.C. Gen.Stat. § 122C–301(b) (2011).
No North Carolina cases have determined the level of force which a law enforcement officer attempting to assist an intoxicated individual under N.C. Gen.Stat. § 122C–301(b) may reasonably use. However, when previously determining whether a law enforcement officer violated a rule prohibiting the use of excessive force, this Court has examined the level of force used relative to an officer's imminent danger. Jordan v. Civil Serv. Bd. of Charlotte, 153 N.C.App. 691, 698–99, 570 S.E.2d 912, 918 (2002). “The question of whether [a law enforcement] officer has used excessive force against [a civilian] is judged by a standard of objective reasonableness. Without any precise definition or mechanical application, this test requires careful attention to the facts and circumstances of each particular case.” Id. at 698, 570 S.E.2d at 917–18 (internal quotations and citations omitted).
Our Supreme Court has previously held that a law enforcement officer has no authority to use a deadly weapon to arrest a misdemeanant unless the misdemeanant “presents an imminent threat to others or is effecting an escape by use of a deadly weapon.” State v. Wall, 304 N.C. 609, 616, 286 S.E.2d 68, 73 (1982). It therefore follows that it is also unreasonable for an officer to use deadly force to secure an intoxicated individual being brought into protective custody. This does not mean, however, that other forms of force which fall short of deadly force would also be considered unreasonable. To determine the reasonableness of the force used when taking an individual into custody for his own protection or the protection of others, careful consideration must be given to the facts and circumstances in each particular case. Jordan, 153 N.C.App. at 698, 570 S.E.2d at 917–18.
In the instant case, Officer Kuszaj testified that he was restraining plaintiff in handcuffs and placing him in custody for his own protection, with the intent to take plaintiff to plaintiff's home, a friend's home, or the hospital if needed. Additionally, Officer Kuszaj admitted that he had no reasonable suspicion that plaintiff was armed. When Officer Kuszaj began to place plaintiff in custody, plaintiff pulled away from him and began running. Officer Kuszaj also testified that a short foot chase ensued, ending when he discharged his taser. Plaintiff testified that the period of time between when he pulled away from Officer Kuszaj until the discharge of the taser was “fairly quick.” Neither Officer Kuszaj nor plaintiff recalls if Officer Kuszaj called for plaintiff to stop running before discharging the taser.
In his affidavit opposing defendants' summary judgment motion, Cloutier opined that it was objectively unreasonable to use a taser on plaintiff, on the pavement and while plaintiff was running away, due to the potential for serious injury to plaintiff. Indeed, this Court has held that a stun gun, or taser, can be considered a dangerous weapon, depending upon the circumstances of its use. State v. Rivera, ––– N.C.App. ––––, ––––, 716 S.E.2d 859, 861–62 (2011). Officer Kuszaj acknowledged in his deposition that he learned during training that tasers can temporarily incapacitate a target and that using a taser on someone in a “precarious position” can cause secondary injuries. Moreover, a product warning accompanying the taser states that “loss of control [as a result of taser probe deployment] can in some circumstances increase the risks of serious injury or death resulting from the loss of balance [or] falls.... Especially at risk are persons: ... Who are running.”
Accordingly, we find that plaintiff's forecast of evidence, viewed in the light most favorable to plaintiff, was sufficient to create genuine issues of material fact regarding his excessive force claim. It is appropriate for a jury to determine whether Officer Kuszaj's use of a taser to stop plaintiff while he was running on a concrete sidewalk, for purposes of placing plaintiff in protective custody, constituted unreasonable and excessive force. Therefore, the trial court erred when it granted defendants' motion for summary judgment on plaintiff's use of excessive force claim on the basis of insufficiency of the forecast of the evidence.
B. Assault and Battery
An assault and battery committed by a law enforcement officer upon a citizen “can provide the basis for a civil action for damages against the officer only if a plaintiff can show that the officer used force against plaintiff which was excessive under the given circumstances.” Glenn–Robinson v. Acker, 140 N.C.App. 606, 625, 538 S.E.2d 601, 615 (2000) (emphasis added and internal quotations and citations omitted). Since we have determined genuine issues of material fact existed regarding whether Officer Kuszaj's deployment of the taser constituted unreasonable and excessive force, it necessarily follows that genuine issues of material fact also exist with respect to plaintiff's assault and battery claim. Therefore, the trial court erred when it granted defendants' motion for summary judgment on plaintiff's assault and battery claim for lack of evidentiary support.
C. Public Official Immunity
Although summary judgment was erroneously granted on the basis of an insufficient evidentiary forecast with respect to plaintiff's excessive force and assault and battery claims, we must still consider defendants' alternative basis for summary judgment, public official immunity.
As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability. Thus, a public official is immune from suit unless the challenged action was (1) outside the scope of official authority, (2) done with malice, or (3) corrupt.
Wilcox v. City of Asheville, ––– N.C.App. ––––, ––––, 730 S.E .2d 226, 230 (2012)(internal quotations and citations omitted). Our Supreme Court has previously determined that law enforcement officers are public officials. See Isenhour v. Hutto, 350 N.C. 601, 610, 517 S.E.2d 121, 127 (1999).
Plaintiff has not alleged that Officer Kuszaj's actions were corrupt or outside the scope of his authority; thus, the only exception to public official immunity relevant to this appeal is malice. Our Supreme Court has held that, in the context of public official immunity, “[a] defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” In re Grad v. Kaasa, 312 N.C. 310, 313, 321 S.E.2d 888, 890 (1984). “[E]vidence of constructive intent to injure may be allowed to support the malice exception to [public official] immunity.” Wilcox, ––– N.C.App. at ––––, 730 S.E.2d at 232. “[A] showing of mere reckless indifference is insufficient, and a plaintiff seeking to prove malice based on constructive intent to injure must show that the level of recklessness of the officer's action was so great as to warrant a finding equivalent in spirit to actual intent.” Id.
In the instant case, Officer Kuszaj testified that he intended to take plaintiff into custody out of concern “for his safety[,] particularly due to his high level of intoxication.” When plaintiff ran away from Officer Kuszaj while Officer Kuszaj was attempting to handcuff him, Officer Kuszaj deployed his taser. Although the DPD's General Order 4008 R–3, which governs the use of force by the DPD, prohibits using electronic impulse devices (“EID”) such as tasers on elderly persons, pregnant women, visibly frail persons, any person who is in control of a vehicle in motion, or any person who is in a position which creates the likelihood for additional injury other than those created by the effects of the EID, it does not explicitly prohibit using an EID on a fleeing subject. In his deposition testimony, Cloutier acknowledged that “Officer Kuszaj may have reasonably believed, based on his training, that he could have utilized a taser in that situation.” There was no evidence presented that Officer Kuszaj was aware that his specific use of his taser on plaintiff was likely to injure him.
This forecast of evidence, viewed in the light most favorable to plaintiff, does not demonstrate that Officer Kuszaj acted wantonly or contrary to his duty, or that he intended to injure plaintiff, and does not suggest that Officer Kuszaj's actions were so reckless or so manifestly indifferent as to justify a finding of willfulness and wantonness equivalent in spirit to actual intent, as required by Wilcox. Based on his training and experience, Officer Kuszaj could not be said to have either actually or constructively intended to injure plaintiff by his use of his taser. Therefore, Officer Kuszaj's actions during his interaction with plaintiff were protected from liability by the doctrine of public official immunity. Accordingly, summary judgment in favor of defendants on those grounds was appropriate, and we affirm the trial court's order of summary judgment in favor of defendants on plaintiff's claims for excessive force and assault and battery.
V. Constitutional Claim
Plaintiff alternatively argues that the trial court erred by granting summary judgment in favor of defendants on plaintiff's claims for relief under the North Carolina Constitution. We disagree.
“[A] direct cause of action under the State Constitution is permitted only ‘in the absence of an adequate state remedy.’ “ Davis v. Town of Southern Pines, 116 N.C.App. 663, 675, 449 S.E.2d 240, 247 (1994)(quoting Corum v. Univ. Of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289 (1992)). In Davis, our Supreme Court held that there was an adequate state remedy for the plaintiff's injury, precluding the maintenance of a direct cause of action under the State Constitution, where the plaintiff could bring a common law claim of false imprisonment. Id. at 675, 449 S.E.2d at 248. The determination of the adequacy of the state remedy was not dependent on the success of the plaintiff's claim. Id. at 676, 449 S.E.2d at 248.
Because plaintiff can seek a remedy for his alleged injury through claims of assault and battery, use of excessive force, and malicious prosecution, he cannot bring a cause of action under the State Constitution against either the City of Durham or Officer Kuszaj in his official capacity. The fact that plaintiff must overcome the affirmative defense of public officer immunity to succeed on his tort claims does not negate their adequacy as a channel through which plaintiff could seek relief. This Court has previously held that a remedy is still an adequate alternative to state constitutional claims where the plaintiff must show that the defendant acted with malice, despite the fact that “such a showing would require more evidence.” Rousselo v. Starling, 128 N.C.App. 439, 448–49, 495 S.E.2d 725, 731–32 (1998). Accordingly, we affirm the trial court's grant of summary judgment in favor of defendants as to plaintiff's claim under the State Constitution.
VI. Conclusion
We affirm the trial court's order of summary judgment on the basis of an insufficient evidentiary forecast regarding plaintiff's malicious prosecution claim. As to plaintiff's assault and battery and excessive force claims, we affirm the trial court's order of summary judgment on the alternative grounds of public official immunity. Finally, we affirm the trial court's order granting summary judgment in favor of defendants on plaintiff's alternative claim under the North Carolina Constitution.
Affirmed. Judges ERVIN and DILLON concur.
Report per Rule 30(e).