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Boxx v. City of North Charleston

United States District Court, D. South Carolina, Charleston Division

September 27, 2019

Thomas McDonald Boxx, Jr., Plaintiff,
City of North Charleston, and Anthony Kevin Russ, Roland Christopher Barrett, R.E. Stone, and Anthony Jade King, in their respective individual capacities, Defendants.


          Margaret B. Seymour Senior United States District Judge

         Plaintiff Thomas McDonald Boxx, Jr. filed a complaint on March 20, 2018, and an amended complaint on April 20, 2018. Plaintiff asserts that Defendants City of North Charleston, Anthony Kevin Russ, Roland Christopher Barrett, R.E. Stone, and Anthony Jade King violated his constitutional rights with respect to his arrest on June 27, 2016. See 42 U.S.C. § 1983. Plaintiff also asserts state law claims against City of North Charleston for false arrest/false imprisonment, malicious prosecution, and negligence/gross negligence. Plaintiff seeks actual and punitive damages. In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Mary Baker Gordon for pretrial handling.

         On January 15, 2019, Defendants filed a motion for summary judgment. Plaintiff filed a response in opposition on January 29, 2019, to which Defendants filed a reply on February 4, 2010. On July 14, 2019, the Magistrate Judge issued a Report and Recommendation in which she recommended that Defendants' motion be granted. Plaintiff filed objections to the Report and Recommendation on July 29, 2019. Defendants filed a reply on August 8, 2019.


         The afternoon of June 27, 2016, Plaintiff was alone behind a shopping center in North Charleston, South Carolina, installing GPS tracking equipment on a paving vehicle owned by his employer. Depo. of Thomas McDonald Boxx, Jr., ECF No. 38-8, 10. His personal truck, a Toyota Tundra, was parked next to the paving vehicle. According to Plaintiff, he was on top of the engine block of the paving vehicle when he heard someone running behind the shopping center. Plaintiff alleges that a man stopped about an arm's reach away from the back passenger side door of the Tundra, looked up and noticed Plaintiff, then ran out of sight. Id. at 11. Plaintiff contends that he believed the man was trying to rob the vehicle and that he no longer felt safe. Plaintiff jumped off the paving vehicle and went to the Tundra, gathered his keys and phone, and removed a handgun from the glove box. Plaintiff “press checked the gun, which is making sure that there is a round chambered and then placed [the gun] by the center console where it would be in a central location [in the event Plaintiff needed to defend himself].” Id. at 12. Plaintiff then noticed the man behind the tailgate of the Tundra. Plaintiff reached his hand out and said, “Stop.” The man continued walking and asked if anyone else was in the area. Plaintiff commenced screaming and cursing at the man to stop advancing. Id. at 12-13. The man left and Plaintiff returned to his employer's place of business.

         The man who had approached Plaintiff is named Dominic Moore. Moore had been participating in physical training with a group led by army recruiters in order to get into better condition prior to enlistment. Depo. of Dominic Moore, ECF No. 38-11, 4. As part of the training, the group would meet at a recruiter's office across the street from the shopping center and run a standard route. According to Moore, the date of the incident he had arrived late at the recruiter's office and was told to take the regular path behind the shopping center and attempt to catch up with his group. Id. at 5.

         Moore states that he saw Plaintiff working and tried to get his attention. Moore asked Plaintiff, “Did you see anyone else back here?” and “Was there anybody else back here running by?” According to Moore, Plaintiff jumped off the paving vehicle, got in the driver's seat, and “racked his gun. . . . And he said, you better just get out of here.” Id. Moore left and caught up with his group. Later that afternoon, after returning to the recruiter's office, Moore reported to the North Charleston Police Department that someone had pulled a weapon on him. Id. at 6.

         Defendants Barrett and Russ arrived at the recruiter's office and took Moore's statement. They obtained a telephone No. off the equipment behind the shopping center and were able to contact Plaintiff to return to the scene. Depo. of Anthony Kevin Russ, ECF No. 38-1, 6. Defendants Barrett and Russ took Plaintiff's statement. During the interview, Plaintiff admitted that he did not have a concealed weapons permit and that he was aware his gun should have remained in the glove box. Defendant King arrived on the premises and Defendant Russ decided to arrest Plaintiff for pointing and presenting a firearm at a person, in violation of S.C. Code Ann. § 16-23-410. ECF No. 38-1, 2 According to Defendant Russ, Plaintiff presented the weapon because Plaintiff “cantered his body, he grabbed his gun and chambered a round loud enough to where [Moore] could hear it-or he racked his gun. Cocked his gun where [Moore] could hear it.” ECF No. 38-2, 3. Plaintiff was transported to a North Charleston Police Department facility. Later that day, Defendant Russ prepared an incident report and supporting documents for approval by a supervisor. Id. at 10. Defendant Russ also prepared an arrest packet consisting of an affidavit, prosecutive summary, incident report and supporting documents, and victim report for submission to Defendant Stone in the warrants division. Id. Defendant Stone then affirmed before a magistrate that there was probable cause to believe Plaintiff committed the offense of pointing and presenting a firearm. The magistrate issued an arrest warrant for Plaintiff on June 28, 2016. ECF No. 38-2, 1 see Arrest Warrant, ECF No. 37-2, 2-3. The charges were dismissed in November 2016. ECF No. 38-10, 8.[1]

         Plaintiff alleges that Defendants Russ, Barrett, Stone, and King, in their individual capacities, acted under color of state law to deprive Plaintiff of his rights under the Fourth Amendment to be secure against unreasonable seizures and free from unnecessary governmental interference. Plaintiff further asserts that Defendant City of North Charleston has implemented customs and practices within the North Charleston Police Department with respect to its arrest warrant procedures and the training and supervision of its officers that created an atmosphere of deliberate indifference to the constitutional rights of the public, including Plaintiff (First Cause of Action). Amended Complaint, ECF No. 12, ¶¶ 23, 25. Plaintiff also alleges that Defendant City of North Charleston (1) intentionally deprived Plaintiff of his personal liberty without lawful justification (Second Cause of Action); (2) acted without probable cause in arresting Plaintiff, such that the charges were dropped and Plaintiff is entitled to pursue a malicious prosecution claim (Third Cause of Action); and (3) was negligent and grossly negligent in breaching its duty to properly hire, train, supervise, control, and discipline its officers (Fourth Cause of Action). See generally Id. ¶¶ 30-32, 35-37, 43-44.

         In their motion for summary judgment, Defendants argue Defendant Russ possessed probable cause to arrest Plaintiff based on the evidence that Plaintiff “presented” his gun to Moore by virtue of the distinctive sound the gun made as it was being racked and his apparent intention to threaten Moore. Defendants further argue that, even if Defendant Russ lacked probable cause to arrest Plaintiff for pointing and presenting a firearm, his mistake was harmless because Defendant Russ also had probable cause to arrest Plaintiff for unlawful carry of a handgun, in violation of S.C. Code Ann.§ 16-23-20, under the uncharged offense doctrine.

         Defendants assert that Defendant Stone's actions were proper because the hearsay information he received from Defendant Russ, as affiant, was adequate to establish probable cause. Defendants contend that Defendant Stone is not required to have independent knowledge of the facts in order to present a warrant to the magistrate. As to Defendant King, Defendants note that this Defendant simply approved the arrest of Plaintiff. Defendants assert that Plaintiff seeks to establish supervisory liability under § 1983, but that Plaintiff's amended complaint references no prior unconstitutional acts by any of the officers in this case of which Defendant King was or should have been aware, or that he showed deliberate indifference to Plaintiff's plight. Finally, Defendants argue that all the individual Defendants are entitled to qualified immunity.

         With respect to the state law claims against Defendant City of North Charleston, Defendants contend that (1) Plaintiff's claim for false arrest fails because probable cause for the arrest existed; (2) Defendant City of North Charleston is entitled to the protections of the South Carolina Tort Claims Act, SC Code Ann. §§ 15-78-10, et seq.; and (3) there is no evidence of negligence or gross negligence.


         A. Applicable Federal Law

         1. Title 42, United States Code, Section 1983. The Constitution does not provide, by itself, a cause of action to address alleged violations of its provisions. A plaintiff must instead bring his claim of a constitutional violation under a statute that provides a cause of action, such as § 1983. In order to state a claim under § 1983, the plaintiff must demonstrate that (1) a person (2) acting under color of state law (3) deprived him of the rights guaranteed by the Constitution or federal laws. Rendall-Baker v. Kohn, 547 U.S. 830, 838 (1982).

         2. Qualified Immunity. Qualified immunity shields government officials from liability in a § 1983 suit as long as their conduct has not violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Humbert v. Mayor & City Council, 866 F.3d 546, 556 (4th Cir. 2017) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether an officer is entitled to qualified immunity, the court must examine (1) whether the facts illustrate that the officer violated the plaintiff's constitutional right to be free from unreasonable seizures, and (2) whether the right was clearly established at the time of the alleged event such that a reasonable officer would have understood that his conduct violated the asserted right. Id. (citing Miller v. Prince George's Cty., 475 F.3d 621, 627 (4th Cir. 2007)). To avoid dismissal of a complaint after a qualified immunity defense is raised, a plaintiff must allege sufficient facts to set forth a violation of a constitutional right, and the court must conclude that this right was clearly established at the time of the alleged violation. Sims v. Labowitz, 885 F.3d 254, 260 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). “Clearly established” means that, at the time of the officer's conduct, the law was “‘sufficiently clear that every reasonable official would understand that what he is doing is unlawful.” D.C. v. Wesby, 138 S.C. 577, 590 (2018) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). In other words, existing law must have placed the constitutionality of the officer's conduct beyond debate. Id. (citing al-Kidd, 563 U.S. at 741). According to Supreme Court, “This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Id. (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         3. Fourth Amendment. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A police officer may lawfully arrest an individual in a public place without a warrant if the officer has probable cause to believe that the individual has committed, is committing, or is about to commit a crime. United States v. Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004). Probable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. Id. (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)).

         4. Municipal Liability under 42 U.S.C. § 1983. To make out a successful claim for municipal liability under 42 U.S.C. § 1983, a plaintiff must demonstrate that an official municipal custom or policy caused the alleged violation. Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978). Municipal liability under § 1983 attaches where a deliberate choice to follow a course of action is made from among various alternatives by city policymakers. City of Canton v. Harris, 489 U.S. 378, 389 (1989) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)).

         5. Challenging an Arrest Warrant. “The Fourth Amendment requires a hearing to be held at a defendant's request ‘where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit . . . if the allegedly false statement is necessary to the finding of probable cause[.]'” United States v. Robinson, 770 Fed.Appx. 627, 628-29 (4th Cir. 2019) (quoting Franks v. Delaware,438 U.S. 154, 155-56 (1978)). This showing ...

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