On March 9, 2022, the Fourth Circuit Court of Appeals decided Henderson v. McClain[i], which serves as an excellent review of the law related to malicious prosecution, false arrest, retaliatory arrest and the effect of probable cause. The relevant facts of Henderson are as follows:
On October 15, 2018, as Appellant (Henderson, the Plaintiff) — a 70 year old man suffering from several health conditions, including chronic obstructive pulmonary disease — exited the Walmart, a store associate, Jeannette Wheeler (“Wheeler”), asked to see his receipt. Appellant refused, and Wheeler radioed for assistance, contending he threatened her. Appellee, who was wearing a body camera and was at the store investigating an unrelated shoplifting incident, heard the call and accompanied a store manager, Lindsay Peterson (“Peterson”), to the entrance to find Appellant and Wheeler.
It took Appellee (Officer McClain) and Peterson less than a minute to respond to Wheeler’s request for assistance. In that time, an assistant manager, Christopher Shelton (“Shelton”), arrived and confronted Appellant. Upon arriving at the entrance, Appellee briefly spoke to Wheeler and then proceeded toward Shelton and Appellant, who were mid-conversation and positioned face [*3] to face a few feet behind Wheeler. Shelton told Appellee that he wanted Appellant removed from the store and began to walk away. Appellant, who wanted to continue the conversation, reacted quickly and reached out toward Shelton’s arm. The bodycam footage clearly depicts Appellant contacting Shelton.
Immediately thereafter, Appellee attempted to place Appellant in handcuffs. It took Appellee approximately 30 seconds to secure the handcuffs. During that time, Appellee twisted Appellant’s right arm behind his back while ordering Appellant to stop resisting. Appellant, who was visibly confused at this point, asked Appellee why he was being detained and told Appellee that he was unable to breathe. After Appellee secured the handcuffs, he walked Appellant to the loss prevention office. Appellee informed Appellant that although he was being detained, he was not under arrest.
Shortly after entering the office, Appellee removed the handcuffs from behind Appellant’s back and placed them in front so that Appellant could use his inhaler. Appellee asked Peterson to determine whether Wheeler or Shelton wanted to press charges against Appellant. After speaking with both, Peterson confirmed that neither wished to press charges and only wanted Appellant barred from the property. Appellee immediately removed Appellant’s handcuffs, completed a “trespass bar letter,” and advised Appellant that if he returned to the Walmart, he would be arrested for trespass. J.A. 575. Throughout his detention, which lasted approximately 25 minutes, Appellant repeatedly questioned Appellee’s authority to detain him or bar him from the store and advised Appellee that he intended to file a complaint about the incident.
Two days later, on October 17, 2018, Appellant filed the promised complaint with a supervisor at the Roanoke Police Department. In the complaint, Appellant reported that he could not breathe as Appellee grabbed his arm so forcefully that Appellant had to seek medical treatment. Appellant also described Appellee as “aggressive, inappropriate, bias[ed], and prejudice[d].” J.A. 477. Sergeant David Lovell (“Sergeant Lovell”), the supervisor responsible for investigating the complaint, told Appellee that Appellant filed the complaint and instructed him to complete a full report and to ask the employees involved whether they wanted to press charges against Appellant. Sergeant Lovell testified that he could not recall whether Appellee advised him that at the time of the incident, the employees were asked if they wanted to press charges, and they declined to do so. But in a sworn declaration, Appellee reported that Sergeant Lovell instructed him “to ask Mr. Shelton and Ms. Wheeler [himself] if they wanted to press criminal charges against Mr. Henderson since [he] did not personally ask[] them on October 15, 2018,” which suggests that Appellee told Sergeant Lovell that the employees previously declined to press charges. Id. at 63 (emphasis supplied).
Appellee returned to the Walmart on October 19, 2018, to speak with Wheeler and Shelton. These interviews were also captured on Appellee’s body camera. Wheeler again declined to press charges. Shelton also initially declined again, but he ultimately agreed to press charges after Appellee advised him about the complaint against the department. In this regard, as best we can discern from the bodycam footage, the following conversation between Shelton and Appellee transpired once Appellee asked Shelton if he wanted to press charges:
- Mr. Shelton: No, sir. Ya’ll have enough.
- Appellee: Well, unfortunately the reason why I’m calling youis that he has made a complaint to the police department and I didn’t write a full report, so . . .
- Mr. Shelton: Who is he complaining about?
- Appellee: The police department mostly, I don’t know if he’s complained about Walmart.
- Mr. Shelton: If he is giving ya’ll crap, then I’ll be glad to press charges.
J.A. 634.
Accordingly, that same day, Appellee sought a misdemeanor arrest warrant against Appellant for assault and battery. Appellee attested to a magistrate for the City of Roanoke that he “had observed Mr. Henderson in an agitated state grab Mr. Shelton’s arm to stop him from walking away as shown on [his] body worn camera video,” and the magistrate issued the arrest warrant. J.A. 63. Thereafter, also on October 19, 2018, Sergeant Lovell concluded that Appellant’s citizen’s complaint was “unfounded,” and that Appellee should “be exonerated.” Id. at 579.
Several days later, no earlier than October 22, 2018 Sergeant Lovell called Appellant and asked him to come to the police station to tell “[his] side of the story.” J.A. 371. Sergeant Lovell did not inform Appellant that he had a warrant for his arrest or that he had already recommended Appellee “be exonerated.” Id. at 579. At [*7] the end of the so-called interview, Sergeant Lovell served the arrest warrant.[ii]
Henderson (Appellant) was found “not guilty” after a bench trial on the assault and battery charge. He then filed suit against Officer McClain and alleged that the officer violated his rights under the Fourth Amendment by engaging in malicious prosecution, false arrest and excessive force; additionally, he alleged a claim for retaliatory prosecution.
The court of appeals first noted that the existence of probable cause, or the officer’s reasonable belief that probable cause existed, to arrest Henderson (Appellant) for assault and battery would defeat all claims except the excessive force claim.
The court then examined the malicious prosecution and false arrest claims.
Regarding a malicious prosecution claim, the plaintiff must show
[T]hat the defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff’s favor…Hupp v. Cook, 931 F.3d 307, 323-24 (4th Cir. 2019)[iii]
Regarding the false arrest claim,
[The] plaintiff must demonstrate that he was arrested without probable cause.” (citing Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974))).[iv]
Regarding the retaliatory arrest claim, the court of appeals stated,
Probable cause should generally defeat a retaliatory arrest claim. See Nieves v. Bartlett, 139 S. Ct. 1715, 1727, 204 L. Ed. 2d 1 (2019)[v]
However, regarding retaliatory arrest, the court of appeals noted that there is a narrow exception to the rule that probable cause will defeat a retaliatory arrest claim. The exception occurs
[W]hen a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. 139 S. Ct. at 1727.[vi]
Thus, if the police do not typically arrest people for assault and battery under circumstances such as Henderson’s incident, then he may have valid claim for retaliatory prosecution. However, the court of appeals noted that Henderson provided no evidence that similarly situated people have not been arrested under these circumstances, and as such, the rule that probable cause will defeat this claim was the applicable standard to apply.
The court of appeals then discussed probable cause. The court stated
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 . . . an offense.” Humbert v. Mayor of Balt. City, 866 F.3d 546, 555 (4th Cir. 2017) (internal alterations and quotation marks omitted). We evaluate probable cause under an objective standard, considering the totality of the circumstances known to the officers at the time of the alleged seizure. Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017); see Graham v. Gagnon, 831 F.3d 176, 184 (4th Cir. 2016).[vii]
It is important to note that probable cause is considered a lower burden of proof than the preponderance of the evidence, and it is far less than proof beyond a reasonable doubt, which is the standard to secure a criminal conviction.
Next, since the crime for which Henderson was arrested was a state statute in Virginia, the court of appeals examined the Virginia assault and battery statute. The court stated
Virginia defines battery as “contact done in a rude, insolent, or angry manner.” Simms v. Ruby Tuesday, Inc., 281 Va. 114, 704 S.E.2d 359, 364 (Va. 2011) (internal quotation marks omitted); Parish v. Commonwealth, 56 Va. App. 324, 693 S.E.2d 315, 319 (Va. Ct. App. 2010) (holding that conduct and statements of the alleged offender may demonstrate whether contact was made in a “rude, insolent, or angry manner“).[viii]
The court of appeals then examined the facts of Henderson’s case in light of the relevant legal principles and statutes. The court of appeals observed that Henderson was accused of threatening a Walmart employee, in what they characterized as a “somewhat chaotic and hostile scene.”[ix] In the midst of this hostile scene, Henderson reached out and touched Shelton’s arm to prevent him from walking away. The court stated that the totality of the circumstances could lead a reasonable officer to conclude that the “contact was done in a rude, insolent or angry manner.”[x] The court stated
Thus, the totality of the circumstances was “sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed an offense.”[xi]
In other words, a reasonable officer in the same situation could believe that probable cause existed to detain and arrest Henderson for assault and battery.
Henderson argued that, even if his conduct justified the officer’s action of seizing him to prevent further crimes against Shelton, it did not justify the police obtaining a warrant and arresting him four days later. The court stated that probable cause “did not disappear in the four days between the detention and the arrest.”[xii]
Henderson also argued that the officer omitted relevant, material facts from the magistrate, particularly the officer’s alleged motive for obtaining the warrant four days after the incident. The motive was allegedly to retaliate against Henderson for filing a complaint against Officer McClain. However, the court stated that the alleged motive is “entirely irrelevant as to whether [Henderson’s] actions,” four days earlier, provided probable cause to believe Henderson committed assault and battery under Virginia law.
Henderson further argued that there is a dispute of fact regarding whether he touched Shelton in a “rude, insolent or angry manner.” However, the court replied
This argument reaches well beyond the probable cause determination before us to the merits of the assault and battery claim. Probable cause does not require evidence sufficient to secure a conviction. Hupp, 931 F.3d at 318. Nor does it require officers to act as “legal technicians” by, for example, analyzing at length when contact is rude, insolent, or angry. See Kaley v. United States, 571 U.S. 320, 338, 134 S. Ct. 1090, 188 L. Ed. 2d 46 (2014).[xiii]
The court of appeals then held that since probable cause existed to believe Henderson committed assault and battery, Henderson’s claims for malicious prosecution, false arrest and retaliatory prosecution fail and Officer McClain is entitled to qualified immunity.
The court then examined the excessive force claim. The court stated
[T]his court has held that the use of handcuffs rarely constitutes excessive force where the officer has probable cause for the underlying arrest. E.W. v. Dolgos, 884 F.3d 172, 186 (4th Cir. 2018) (citing Brown v. Gilmore, 278 F.3d 362, 369 (4th Cir. 2002)). Of course, there are exceptions to this general rule, as a “lawful arrest does not categorically legitimize binding a person’s wrists in chains.” Id. at 180.[xiv]
The court then examined the facts of the case, as well as the body camera video. The court observed that Henderson was “physically resistant and noncompliant” during Officer McClain’s instructions during handcuffing. While Henderson may argue that his resistance was not intentional, the court stated
It matters not whether his resistance was unintentional, as Appellant contends, because “[i]n evaluating excessive force claims, the reasonableness of the officer’s belief as to the appropriate level of force should be judged from that on-scene perspective.” Brown, 278 F.3d at 369 (internal quotation marks omitted). Indeed, “[f]or courts to fine-tune the amount of force used in a situation such as this would undercut the necessary element of judgment inherent in a constable’s attempts to control a volatile chain of events.” Id.[xv]
As such, the court of appeals held that the officer did not violate the Fourth Amendment when he handcuffed Henderson, who was physically resistant and noncompliant.
Therefore, Officer McClain is entitled to qualified immunity on the excessive force claim.
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Citations
[i] No. 20-2197 (4th Cir. Decided March 9, 2022 Unpublished)
[ii] Id. at 2-3
[iii] Id. at 9 (emphasis added)
[iv] Id. (emphasis added)
[v] Id. (emphasis added)
[vi] Id. at Fn. 5 (emphasis added)
[vii] Id. at 10 (emphasis added)
[viii] Id. (emphasis added)
[ix] Id. at 11
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Id. at 13 (emphasis added)
[xiv] Id. at 14 (emphasis added)
[xv] Id. at 14-15 (emphasis added)
