January 4, 2017
BRANDON PEGG, Plaintiff - Appellee,
GRANT HERRNBERGER, individually and in his capacity as agent and employee of the West Virginia State Police, Defendant-Appellant.
Argued: October 27, 2016
from the United States District Court for the Northern
District of West Virginia, at Wheeling. John Preston Bailey,
District Judge. (5:14-cv-00116-JPB)
Lee Williams, STEPTOE & JOHNSON PLLC, Morgantown, West
Virginia, for Appellant.
G. McCoid, MCCAMIC, SACCO & MCCOID, P.L.L.C., Wheeling,
West Virginia, for Appellee.
A. Solomon, Robert L. Bailey, STEPTOE & JOHNSON PLLC,
Morgantown, West Virginia, for Appellant.
J. Harris, HARRIS LAW OFFICES, Wheeling, West Virginia, for
NIEMEYER, KING, and AGEE, Circuit Judges.
and remanded with instructions by published opinion. Judge
Agee wrote the opinion, in which Judge Niemeyer and Judge
Pegg sued West Virginia State Trooper Grant Herrnberger,
alleging that Herrnberger used excessive force in
effectuating the arrest of Pegg, in violation of state and
federal law. Herrnberger appeals the district court's
denial of his motion for summary judgment based upon that
court's holding Herrnberger was not, as a matter of law,
entitled to qualified immunity. For the reasons that follow,
we reverse the district court's order denying
Herrnberger's motion for summary judgment and remand with
instructions to enter judgment in favor of Herrnberger.
August 4, 2013, Herrnberger and another trooper, William
Beck, were examining an abandoned vehicle on the side of the
road when Brandon Pegg drove by slowly in his truck with the
driver's side window open. Herrnberger noticed the truck
had an expired inspection sticker and called out to Pegg to
stop the vehicle. Pegg did not stop and sped away. The
troopers then left in pursuit of Pegg's truck and
eventually pulled him over.
approached the driver's side of Pegg's vehicle to
speak with Pegg while Herrnberger approached the passenger
side to speak with the front passenger, Robert Beever. When
Herrnberger asked to see Beever's identification, Pegg
asked why Beever needed to produce identification.
contends that Pegg then reached for something between his
legs, a claim Pegg denies. Herrnberger asserts that
Pegg's reaching motion appeared suspicious, so he
approached the driver's door and ordered Pegg out of his
truck. Pegg complied and followed Herrnberger to the rear of
Pegg's truck. Herrnberger then instructed Pegg to face
the truck, put his hands behind his back, and lock his hands
together. Before Pegg turned to face the truck, Herrnberger
demonstrated how Pegg should lock his hands together.
placed his left hand at the small of his back and began to
bring his right arm behind his back, but did not interlock
his hands as instructed. Herrnberger grabbed Pegg's right
arm. Pegg then turned and said "Why is this happening or
something along those lines" to Herrnberger and pulled
his right arm away from the trooper. J.A. 46. Herrnberger
then pushed Pegg against the truck with his left arm, and
attempted to pull Pegg's right arm back, which Pegg
resisted. Herrnberger then took Pegg to the ground, and both
troopers pinned Pegg there and handcuffed him in an event
that took less than forty seconds before Pegg was helped to
his feet. As a result, Pegg claims he suffered minor scrapes
and abrasions on his head, which he treated with peroxide and
Neosporin, but did not seek medical attention.
troopers arrested Pegg for assaulting a police officer (
W.Va. Code § 61-2-10b(e)), obstructing an officer (
W.Va. Code § 61-5-17(a)), and driving with an expired
inspection sticker ( W.Va. Code § 17C-16-9). Pegg was
jailed for 8-12 hours before released. A magistrate judge
dismissed the assault charge for lack of probable cause, and
the prosecuting attorney dismissed the rest of the charges
for reasons not apparent on the record.
then filed a complaint in the U.S. District Court for the
Northern District of West Virginia against Herrnberger,
individually and in his official capacity pursuant to 42
U.S.C. § 1983. The complaint alleged federal claims of
unlawful arrest, retaliatory arrest, and excessive force, and
state claims of outrage/intentional infliction of emotional
distress and battery. Herrnberger filed a motion for summary
judgment, arguing that the suit was barred against him in his
official capacity based on sovereign immunity and in his
individual capacity because of qualified immunity.
district court granted Herrnberger's motion for summary
judgment in part and denied it in part. All claims against
Herrnberger in his official capacity were dismissed as barred
by sovereign immunity. Pegg does not challenge the district
court's ruling as to the official capacity
claims. The district court denied
summary judgment for the claims against Herrnberger in his
individual capacity, ruling he was not entitled to qualified
filed a timely appeal, and we have jurisdiction of the appeal
under 28 U.S.C. § 1291. See Am. Civil Liberties
Union, Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th
Cir. 1993) (citing Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)) (stating questions of law surrounding
qualified immunity are appealable as final decisions within
the meaning of § 1291).
review de novo a district court's denial of
summary judgment and qualified immunity, construing all facts
in the light most favorable to the nonmovant." Orem
v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008). Thus, for
purposes of our review here, we construe all facts in the
light most favorable to Pegg as non-moving party. For issues
concerning qualified immunity, we have jurisdiction to
consider purely legal questions, but not over the district
court's "determination that the summary judgment
record in this case raised a genuine issue of fact"
because that is not a final decision for purposes of 28
U.S.C. § 1291. Johnson v. Jones, 515 U.S. 304,
313 (1995). Put another way, "we
possess no jurisdiction over a claim that a plaintiff has not
presented enough evidence to prove that the plaintiff's
version of the events actually occurred, but we have
jurisdiction over a claim that there was no violation of
clearly established law accepting the facts as the district
court viewed them." Winfield v. Bass, 106 F.3d
525, 530 (4th Cir. 1997). Consequently, we accept the facts
as the district court articulated them when it determined
whether summary judgment was appropriate, and then we
determine "whether, based on those facts, a reasonable
person in the defendant's position could have believed
that he or she was acting in conformity with the clearly
established law at the time." Gray-Hopkins v. Prince
George's Cty., 309 F.3d 224, 229 (4th Cir. 2002).
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). When evaluating whether a right
was clearly established at the time of a violation, courts do
not ask "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. 2015) (quoting Saucier v. Katz,
533 U.S. 194, 201-202 (2001)).
Qualified Immunity for Unlawful Arrest
district court determined that Herrnberger's arrest of
Pegg was unlawful because it believed Herrnberger did not
"principally" arrest Pegg for the expired
inspection sticker. Instead, the district court opined the
arrest was "for obstructing an officer only after he
asked [Herrnberger] a question during the traffic stop."
denies that motivation and, in any event, argues that
purported subjective reasons for arresting Pegg should not
enter into the qualified immunity analysis because Pegg's
violation of West Virginia law constituted probable cause for
the arrest. Therefore, with probable cause to arrest,
Herrnberger contends he is entitled to qualified immunity. We
agree with Herrnberger.
Supreme Court has stated unequivocally that "[i]f an
officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence,
he may, without violating the Fourth Amendment, arrest the
offender." Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001). In Atwater, the arrestee
committed a seat belt violation punishable only by a fine.
Nonetheless, the Supreme Court held that the Fourth Amendment
does not forbid a warrantless arrest for such a minor
Pegg admits that his vehicle had an expired inspection
sticker in violation of West Virginia law. See W.Va. Code § 17C-16-9.
Further, he admits this violation occurred in
Herrnberger's presence. Therefore, just as in
Atwater, though Pegg's offense was minor, the
Fourth Amendment does not forbid a warrantless arrest for
such a violation.
Supreme Court specifically rejected in Atwater the
argument Pegg makes here: that the Fourth Amendment would
forbid "custodial arrest, even upon probable cause, when
conviction could not ultimately carry any jail time . . .
." Atwater, 532 U.S. at 346. Under
Atwater, therefore, whether or not a § 17C-16-9
violation is a jailable offense is irrelevant for purposes of
the application of qualified immunity.
attempts to distinguish Atwater by arguing that
unlike the Texas seatbelt statute at issue in that case,
§ 17C-16-9 is not an offense subject to a custodial
arrest or punishable by incarceration. He argues that §
17C-16-9 is not among the list of traffic offenses that a
separate statute, § 17C-19-3, enumerates as warranting
arrest. But that contention -- even if a correct recitation
of state law -- is of no consequence under Atwater
for Fourth Amendment qualified immunity purposes.
event, under West Virginia law, police officers have the
authority to effect an arrest for minor traffic violations,
including the one at issue here. The language of §
17C-19-3 does not support the reading of the statute that
Pegg advances. See § 17C-19-3 (prescribing
arrest for traffic violations in "any of the
following cases, " not in "only the
following cases") (emphasis added). Similarly, the
statute that controls the procedure for issuing traffic
citations, § 17C-19-4, does not prohibit an officer from
making an arrest instead of issuing a citation. That these
two provisions do not prohibit an officer from making arrests
for certain minor offenses is supported by yet another West
Virginia statute pertaining to traffic regulations, §
17C-19-5, which provides that "the procedure prescribed
[in Chapter 17] shall not otherwise be exclusive of any other
method prescribed by law for the arrest and prosecution of a
person for an offense of like grade." Such alternative
method is described in § 15-2-12(b)(1), which empowers
West Virginia State Troopers to make warrantless arrests when
witness to "any offense or crime"
(emphasis added). As noted earlier, Pegg does not deny that
his offense of operating a motor vehicle with an expired
inspection sticker occurred in the presence of Herrnberger.
As a result, under Atwater and the West Virginia
statutes, Herrnberger had probable cause to arrest Pegg for
the expired inspection sticker violation.
district court's determination that Herrnberger arrested
Pegg "in practicality" for assault and obstruction
of justice, instead of the expired inspection sticker, is
also ultimately irrelevant. J.A. 375. The proper focus of the
inquiry is not any subjective reason for arresting Pegg, but
only the objective facts surrounding the arrest. As the
Supreme Court has previously explained, the "subjective
reason for making the arrest need not be the criminal offense
as to which the known facts provide probable cause."
Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
Instead, the Fourth Amendment requires an analysis under
which a police officer's action is not invalidated
"'as long as the circumstances, viewed
objectively, justify that action.'"
Id. (quoting Whren v. United States, 517
U.S. 806, 813 (1996)) (emphasis added). The objective and
undisputed fact of Pegg's violation of § 17C-16-9 is
fully sufficient, in and of itself, to justify his
arrest. Thus, Herrnberger did not
violate the Fourth Amendment and he is entitled to qualified
immunity on this claim as a matter of law. The district court
erred in failing to grant summary judgment to Herrnberger on
Pegg's claim of unlawful arrest.
Qualified Immunity for Retaliatory Arrest
probable cause inherent in Pegg's violation of §
17C-16-9 also defeats his First Amendment retaliatory arrest
claim. The Supreme Court "has never recognized a First
Amendment right to be free from a retaliatory arrest that is
supported by probable cause." Reichle v.
Howards, 132 S.Ct. 2088, 2093 (2012). Since the
Reichle decision, no such right has been recognized,
so the Reichle principle is fully controlling here.
Pegg's violation of § 17C-16-9 gave Herrnberger
probable cause to arrest Pegg; therefore his arrest was not
to the district court's conclusion, it is not enough,
that Pegg "simply plead 'an absence of probable
cause'" for his claim to survive summary judgment.
J.A. at 377 (citing Tobey v. Jones, 706 F.3d 379,
392 (4th Cir. 2013)). The basis for that rule is the
assumption that "'probable cause or its absence will
be at least an evidentiary issue in practically all
cases.'" Tobey v. Jones, 706 F.3d 379, 392
(4th Cir. 2013) (quoting Hartman v. Moore, 547 U.S.
250, 265 (2006)). But in distinction from the appeal in
Tobey from the denial of a motion to dismiss, the
instant case is a decision on summary judgment. This case is
not one where probable cause remains an evidentiary issue; it
is undisputed that Pegg violated § 17C-16-9 in the
arresting officer's presence, thereby establishing the
probable cause for his arrest. Herrnberger is thus entitled
to qualified immunity on this claim as well and the district
court erred in not granting his motion for summary judgment.
Qualified Immunity for Excessive Force
district court concluded that Herrnberger was not entitled to
qualified immunity for Pegg's claim of excessive force on
the basis of its finding that Herrnberger was
"potentially . . . pre-disposed to using force to arrest
[Pegg]." Herrnberger denies any such subjective
predisposition, but argues again that any subjective
motivations in the mind of the police officer do not factor
into the qualified immunity analysis. We again agree with
inquiry into any predisposition for force on the part of
Herrnberger is an improper mode of analysis for a Fourth
Amendment excessive force claim. "Subjective factors
involving the officer's motives, intent, or propensities
are not relevant." Rowland v. Perry, 41 F.3d
167, 173 (4th Cir. 1994).
determine whether a police officer applied excessive force in
violation of the Fourth Amendment, we instead examine
officers' actions "in light of the facts and
circumstances confronting them, without regard to their
underlying intent or motivation." Graham v.
Connor, 490 U.S. 386, 397 (1989). Specifically, we
examine "the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight."
Id. at 396. As when examining the lawfulness of an
arrest, "[w]hether an officer has used excessive force
is analyzed under a standard of objective
reasonableness." Henry v. Purnell, 652 F.3d
524, 531 (4th Cir. 2011).
Pegg's crime was not severe, he admits that he resisted
arrest. We conclude Herrnberger
applied no more force than necessary to overcome that
resistance. Viewing the evidence in the light most favorable
to Pegg, after Pegg placed his left hand behind his back he
failed to interlock his hands as Herrnberger had just
demonstrated to him seconds earlier.
then attempted to withdraw his right arm from
Herrnberger's grasp. Herrnberger then briskly, but
safely, took Pegg to the ground. Pegg remained on the ground
for less than a minute and no longer than the time
Herrnberger needed to handcuff him. According to Pegg's
own statements, Herrnberger did not strike, kick, or verbally
abuse him. Instead, Herrnberger performed a simple maneuver
to ensure Pegg's compliance. Once Pegg was handcuffed,
Herrnberger assisted Pegg back to a standing position and
refrained from any further physical contact. As a result of
the encounter, Pegg claims abrasions minor enough that he
treated them at home with Neosporin and peroxide and did not
seek medical assistance. An efficient, lawful arrest of a
resisting suspect that causes the suspect to suffer only de
minimis injuries does not constitute excessive force.
Herrnberger's actions were objectively reasonable and he
is entitled to qualified immunity as a result. The district
court erred in holding to the contrary.
Qualified Immunity for West Virginia State Law Claims
complaint also alleged West Virginia state law claims for
battery and outrage (intentional infliction of emotional
distress) against Herrnberger. Under West Virginia law, a
police officer is not entitled to qualified immunity when his
or her conduct results in a clearly established
constitutional or statutory violation. See Hutchinson v.
City of Huntington, 479 S.E.2d 649, 659 ( W.Va.
1996). A police officer is also not entitled to qualified
immunity under West Virginia law if his or her conduct is
"fraudulent, malicious, or otherwise oppressive."
under West Virginia law tracks the elements set forth in the
Restatement (Second) of Torts: an individual commits battery
when "(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. v.
Stanley, 602 S.E.2d 483, 494 ( W.Va. 2004) (quoting the
Restatement). Moreover, lawful arrests are excluded from the
scope of West Virginia battery. A person lawfully performing
an arrest is afforded a privilege to engage in arrests within
the limit of their jurisdiction, so long as the force is not
excessive. Restatement (Second) at § 118; 132.
on its analysis of the claims for unlawful arrest and
excessive force, the district court held that a reasonable
trier of fact could conclude "the force [Herrnberger]
used was unreasonable in the instant case." J.A. 383. As
should be evident from our analysis of the foregoing federal
claims, Herrnberger did not apply excessive force when
arresting Pegg. Accordingly, his contact with Pegg would be
privileged for qualified immunity purposes so long as it was
not fraudulent, malicious, or otherwise oppressive. Pegg has
made no such argument and there is nothing in the record that
would allow a conclusion that Herrnberger's alleged
actions were malicious or oppressive. Herrnberger remained
calm throughout the interaction and applied no more force
than necessary to effect a lawful arrest. Moreover, that
force was momentary and slight. Herrnberger is thus entitled
to qualified immunity on this claim as well. The district
court erred in finding otherwise.
Outrage, or Intentional Infliction of Emotional Distress
argued, and the district court agreed, that Herrnberger
effected an unlawful arrest with excessive force, which Pegg
characterized as a violation of the special trust society
bestows upon law enforcement officers egregious enough to
support an outrage claim. Herrnberger responded that the
arrest was lawful and performed with only the necessary force
and therefore cannot form the basis of an outrage claim.
Herrnberger is correct.
West Virginia law, to establish the tort of outrage, more
commonly known as intentional infliction of emotional
distress, the plaintiff must establish four elements:
(1) that the defendant's conduct was atrocious,
intolerable, and so extreme and outrageous as to exceed the
bounds of decency;
(2) that the defendant acted with the intent to inflict
emotional distress, or acted recklessly when it was certain
or substantially certain emotional distress would result from
(3) that the actions of the defendant caused the plaintiff to
suffer emotional distress and;
(4) that the emotional distress suffered by the plaintiff was
so severe that no reasonable person could be expected to
Loudin v. Nat'l Liab. & Fire Ins., 716
S.E.2d 696, 705 ( W.Va. 2011).
difficult to overstate the high burden of proof required to
sustain a tort claim for intentional infliction of emotional
distress/outrage. West Virginia courts only find liability
for outrage "'where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized
community.' This is a high standard indeed."
Keyes v. Keyes, 392 S.E.2d 693, 696 ( W.Va. 1990)
(quoting Harless v. First Nat'l Bank, 289 S.E.2d
692, 703- 04, n. 20 ( W.Va. 1982)).
objectively and in the light most favorable to Pegg, his
outrage claim does not come close to meeting the legal
threshold. Herrnberger's conduct does not rise to the
level of battery, much less clear the much higher bar
required for outrage. A lawful arrest performed without
excessive force is, at worst, conduct that is "merely
annoying, harmful of one's rights or expectations,
uncivil, mean-spirited, or negligent." Courtney v.
Courtney, 413 S.E.2d 418, 423 ( W.Va. 1991), rev'd
on other grounds, Courtney v. Courtney, 437 S.E.2d
436 ( W.Va. 1993)). Herrnberger's arrest of Pegg was
lawful and without excessive force and does not
"constitute outrageous conduct." Id. The
facts of this case are markedly milder than the kind of
conduct courts applying West Virginia law have found
necessary to support an intentional infliction of emotional
distress claim. See, e.g., Heldreth v.
Marrs, 425 S.E.2d 157, 161-62 ( W.Va. 1992) (allowing an
outrage claim to proceed when a husband suffered a heart
attack after witnessing his wife get struck by a car and
die); Hutchinson v. W. Virginia State Police, 731
F.Supp.2d 521, 531 (S.D. W.Va. 2010) (finding a legally
cognizable claim for outrage for a female suspect who was
pulled from the shower by the hair during the execution of a
search warrant and forced to lie down naked for at least 45
minutes in the presence of eleven male law enforcement
officers, one of whom slapped her behind) aff'd sub nom.
Hutchinson v. Lemmon, 436 F.App'x 210 (4th Cir.
2011). But see Keyes, 392 S.E.2d at 694 (disallowing
an outrage claim when a family excluded a son from his
father's obituary, burial plans, and the car ride to the
funeral); Lee v. City of S. Charleston, 668
F.Supp.2d 763, 779 (S.D. W.Va. 2009) (disallowing outrage
claim based on a roadside public strip search that exposed
arrestee's genitals to the arresting officer); Lowe
v. Spears, 2009 WL 1393860, at * 6 (S.D. W.Va. May 15,
2009) (disallowing outrage claim when an officer arrested an
individual for a minor offense, possibly in response to
arrestee's use of profanity toward the officer).
is entitled to qualified immunity on this claim and the
district court erred in concluding otherwise.
For the foregoing reasons, we reverse the district
court's order denying Herrnberger's motion for
summary judgment. He was entitled to qualified immunity for
all claims as a matter of law. The case is therefore remanded
to the district court for the entry of judgment in favor of
Herrnberger on all claims.
AND REMANDED WITH INSTRUCTIONS
 A fifth claim, for false imprisonment,
was dismissed as barred by the statute of limitations and is
also not at issue on appeal.
 The opinion omits internal quotation
marks, alterations, and citations here and throughout, unless
 "Request No. 1: Admit that on
August 4, 2013, at approximately 11:30 a.m., you were
operating a vehicle that had an expired inspection sticker.
Response: Admitted." J.A. 101.
 Pegg's violation of §
17C-16-9 established probable cause for his arrest and a
search incident to that arrest. Accordingly, we need not
consider whether Herrnberger's actions were also
permitted under Terry v. Ohio, 392 U.S. 1 (1968).
See United States v. Robinson, 414 U.S. 218, 235
(1973) ("A custodial arrest of a suspect based on
probable cause is a reasonable intrusion under U.S. Const.
amend. IV; that intrusion being lawful, a search incident to
the arrest requires no additional
 "Request No. 6: Admit that you
resisted Trooper Herrnberger's attempt to secure your
hands behind your back. Response: Admitted." J.A.