Lance L. Swick v. James Wilde; Town of Chapel Hill, North Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2196
LANCE L. SWICK,
Plaintiff - Appellee,
v.
JAMES WILDE; TOWN OF CHAPEL HILL, NORTH CAROLINA,
Defendants – Appellants,
and
CHRISTOPHER BLUE; RANDI MASON; LEO VEREEN,
Defendants.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cv-00303-TDS-JEP)
Argued: March 28, 2013 Decided: June 19, 2013
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Remanded by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Duncan and Judge Agee joined.
ARGUED: Dan McCord Hartzog, CRANFILL, SUMNER & HARTZOG, LLP,
Raleigh, North Carolina, for Appellants. Robert Christopher
Ekstrand, EKSTRAND & EKSTRAND, LLP, Durham, North Carolina, for
Appellee. ON BRIEF: Kari R. Johnson, CRANFILL, SUMNER &
HARTZOG, LLP, Raleigh, North Carolina, for Appellants.

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Stefanie A. Smith, EKSTRAND & EKSTRAND, LLP, Durham, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
I.
Defendant-Appellants Officer James Wilde and Town of Chapel
Hill appeal the district court’s partial denial of summary
judgment on the basis of qualified and public official immunity
related to several of Plaintiff-Appellee Lance Swick’s federal
42 U.S.C. § 1983 and state law malicious prosecution claims.
The district court’s denial of qualified immunity rested on its
determination that there were genuine issues of material fact
best decided at trial. Because this case does not ultimately
turn on questions of law, and because the district court has not
rendered a final decision pursuant to 28 U.S.C. § 1291, we do
not have jurisdiction to consider this appeal. We therefore
dismiss and remand for further proceedings.
II.
Because Appellants challenge the denial of qualified
immunity on a motion for summary judgment, we are constrained to
view the following facts in the light most favorable to Swick as
the non-moving party. See ACLU of Md., Inc. v. Wicomico Cnty.,
Md., 999 F.2d 780, 784 (4th Cir. 1993).
In 2007, Lance Swick lived in the “82 Magnolia Apartments”
complex in Chapel Hill, North Carolina, where he was an active
participant in a lively social scene. He frequently organized

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poolside parties and invited friends from 82 Magnolia, including
Officer Randi Mason, who worked for the Chapel Hill Police
Department. After Swick and Mason became friends, Mason began
to date Appellant James Wilde, whom she eventually married.
Mason subsequently began to distance herself from Swick’s group
of friends and the 82 Magnolia social scene.
In January 2007, while on patrol, Mason saw Swick’s silver
vehicle on the street. Because of a prior conversation with
Swick, Mason suspected that his license had been revoked, and
informed other officers to “be on the look out” for Swick
because he had a “possibly revoked license.” Later that
evening, Wilde observed Swick, pulled him over, administered
sobriety checks, and arrested Swick after determining that he
was intoxicated.1
On May 20, 2007, Wilde and Mason were acting as off-duty
courtesy officers at 82 Magnolia. At about 11:00 P.M., they
witnessed a man they believed to be Swick walk down the stairway
from an apartment, enter a silver vehicle, and drive off. After
Mason contacted the police department’s dispatch center and
learned that Swick’s license was revoked, she swore out a
warrant for Swick’s arrest for driving with a revoked license.
1 Swick pleaded guilty in March 2008 to driving while
impaired for the charge associated with this January 2007
arrest.

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When Swick learned about the warrant, he turned himself in at
the Chapel Hill Police Department. However, Swick claimed that
he was in Durham that evening at a concert and that his car was
impounded at the time.2
On May 27, 2007, Swick and his friends organized a poolside
Memorial Day party. The attendees brought food and alcohol, and
Swick drank while at the party. Wilde was on duty that day, but
took a one-hour “fitness break,” as permitted by the police
department. He chose to swim at the pool during his break.
When Swick learned that Wilde was in the pool, he told his
friend, Tim Runfola, that he wanted to speak with Wilde to
“clear the air.” Runfola, who was worried that Wilde might be
targeting Swick, told Swick he did not think it was a good idea
to speak with Wilde and volunteered to discuss the matter with
Wilde himself.
While Wilde was in the pool, he saw Swick speaking to some
people, who Wilde says were gesturing towards him. Feeling
uncomfortable, Wilde decided to leave the pool area. Runfola
followed Wilde to have a conversation with him. Swick followed
behind Runfola. Three friends who were at the party, Deepak
Gopalakrishna, Carlos Alvarado, and Jason Bradley Downey, also
2 After the relevant events in this case had transpired, a
state court dismissed the May 20, 2007, charges against Swick.

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followed at varying distances behind Swick. After walking about
100 yards, Wilde became concerned that the men were following
him and decided to get into his personal vehicle and drive away.
About a minute later, he decided he might be acting “paranoid,”
and returned to his apartment.
After Wilde parked his car, he popped his trunk and went to
retrieve his gear, including his helmet and weapon. Wilde then
saw the five men who had stayed in the area while Swick talked
with a neighbor he knew. Swick approached Wilde and asked if he
could speak with him. As they spoke, Runfola sat on a curb
about twenty-five feet from Wilde in the pathway to Wilde’s
apartment. The three other men stood or sat about seventy-five
feet away under a tree on a grassy island to avoid burning their
feet on the hot pavement.
After Wilde agreed to the conversation, Swick asked Wilde
why he was “charging [him] with all these charges” and
“targeting [him] . . . and trying to throw [him] under the bus.”
Wilde responded that if Swick wanted it to stop then Swick
should “stop breaking the law.” Wilde ended the conversation
abruptly and returned to his apartment. No one attempted to
prevent Wilde from leaving.
During the course of the conversation, neither Swick nor
Wilde raised his voice, gestured in anger, swore, or
communicated any explicit threat. Wilde only sounded agitated

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at the end of the conversation when he told Swick he did not
want to speak further. Runfola, who could hear the two men
talking, described the conversation as “totally calm . . . .
Lance put out some questions. James gave his response.”
Gopalakrishna described the tone as “non-confrontational.” He
explained that Swick did not seem “agitated in any way. He
seemed to be calm and in control of himself.” Downey
characterized Swick’s demeanor as “fairly calm . . . he wasn’t
raising his voice or anything like that.” Wilde explained that
he did not feel that Swick did anything to intimidate him, but
that he felt intimidated by “everyone there.” He believes that
the “manner in which the men followed him and spread out in the
area was threatening.”
That evening, Wilde discussed the incident with the on-duty
supervisor at the police department, Leo Vereen. After hearing
Wilde’s story, Vereen consulted with a magistrate judge in the
building who told Vereen he believed probable cause existed to
support a warrant. The next morning, Wilde swore out a warrant
for Swick’s arrest on a felony charge of witness intimidation
and a misdemeanor charge of communicating threats. Swick again
turned himself in when he learned about the warrant. Wilde also
testified in front of a grand jury, which returned a true bill
of indictment. Before trial, the communicating threats charge

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was dismissed. However, the felony intimidation charge moved
forward to a jury verdict in Swick’s favor.
On April 20, 2010, Swick filed a lawsuit containing
seventeen causes of action against Wilde, the Town of Chapel
Hill, and several individual officers. The causes of action
included nine claims under 42 U.S.C. § 1983 and eight state
causes of action, including malicious prosecution. Swick
brought claims related to both his May 20 and May 27 arrests.
The district court granted in part and denied in part
Defendants’ motion for summary judgment. The court granted
summary judgment on all claims related to the May 20 arrest, but
denied Wilde’s motion for summary judgment on Swick’s § 1983
claims for unreasonable seizure, criminalization of speech,
retaliation, evidence fabrication, and state law malicious
prosecution related to the arrest for the May 27 conversation.
Id. While governmental immunity protects a municipality from
vicarious liability in certain circumstances, see Evans v. Hous.
Auth. of City of Raleigh, 602 S.E.2d 668, 670 (N.C. 2004), the
district court recognized that the Town of Chapel Hill may have
waived its governmental immunity defense due to its
participation in an insurance risk pool, pursuant to North
Carolina law. N.C. Gen. Stat. § 160A-485(a); Lyles v. City of
Charlotte, 477 S.E.2d 150, 152 (N.C. 1996). Because the Town of
Chapel Hill did not brief the matter or provide evidence related

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to the extent of coverage, the court denied the Town’s summary
judgment motion on the state law malicious prosecution claim.
III.
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.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Typically, a denial of
summary judgment is not appealable when no final order has
issued. 28 U.S.C. § 1291; Jenkins v. Medford, 119 F.3d 1156,
1159 (4th Cir. 1997) (en banc). However, qualified immunity is
an “immunity from suit rather than a mere defense to liability.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). As such, we may
exercise jurisdiction over an interlocutory appeal of a denial
of summary judgment based on qualified immunity to prevent a
public official from enduring the hardship and distraction of
trial.3 Id. at 525-27. Specifically, a denial of qualified
immunity is immediately appealable if “the issue appealed
concern[s], not which facts the parties might be able to prove,
but, rather, whether or not certain given facts showed a
3 The law allowing limited interlocutory appeal of qualified
immunity also applies to public official immunity. Taylor v.
Ashburn, 112 N.C. App. 604, 606 (1993).

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violation of clearly established law.” Johnson v. Jones, 515
U.S. 304, 311 (1995). Of course, a district court’s denial of
qualified immunity typically contains both legal and factual
determinations. As such, we must carefully consider the
district court’s order to assess the basis for its decision.
Id. at 319. If the district court’s denial rests solely on its
finding that there were genuine issues of material fact, then we
do not have jurisdiction and should proceed no further in our
analysis. Iko v. Shreve, 535 F.3d 225, 235 (4th Cir. 2008).
Here, the district court identified the pivotal question in
this case: whether Wilde was reasonable in his belief that
probable cause existed for Swick’s arrest on state law charges
that he either communicated threats or intimidated a witness.
See Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996)
(explaining that an officer has probable cause if the totality
of the circumstances known to the officer at the time “would
warrant the belief of a prudent person that the arrestee had
committed or was committing an offense”). Under North Carolina
law, a person is guilty of a Class 1 misdemeanor for
communicating threats if:
(1) He willfully threatens to physically injure the
person . . . ;
(2) The threat is communicated to the other person,
orally, in writing, or by any other means;
(3) The threat is made in a manner and under
circumstances which would cause a reasonable

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person to believe that the threat is likely to be
carried out; and
(4) The person threatened believes that the threat
will be carried out.
N.C. Gen. Stat. Ann. § 14-277.1(a) (emphasis added).
A person is guilty of felony intimidation or interference
with witnesses in North Carolina:
If any person shall by threats, menaces or in any
other manner intimidate or attempt to intimidate any
person who is summoned or acting as a witness in any
of the courts of this State, or prevent or deter, or
attempt to prevent or deter any person summoned or
acting as such witness from attendance upon such court
. . . .
N.C. Gen. Stat. Ann. § 14-226 (emphasis added).
Because Swick did not communicate any oral or written
threat, any potential basis for probable cause would fall under
the catch-all provisions emphasized in the above statutes. The
district court explained, however, that Wilde and Swick “paint[]
a very different scene,” of what happened such that it cannot be
said as a matter of law that probable cause existed. Swick v.
Wilde, 2012 WL 3780350, at *11 (M.D.N.C. Aug. 31, 2012)
(unpublished). For instance, Wilde states that Swick and his
friends “fanned out,” “surrounded” him, blocked the escape route
to his apartment, and “panicked” him to the point that he backed
himself against his car to protect his rear in preparation for a
physical altercation. Swick, on the other hand, describes a
calm, non-threatening conversation that took place while his

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friends stood or sat in a disinterested manner twenty-five to
seventy-five feet away. After an extensive review of the
factual disputes in the case, the district court concluded that
genuine issues of material fact remained which prevented any
determination that Wilde was entitled to qualified immunity as a
matter of law. Id. at *13.
Wilde also argued before the district court that decisions
by intervening adjudicators as to the existence of probable
cause buffer him from liability. Specifically, he pointed out
that a neutral magistrate issued a warrant, a grand jury
returned an indictment, and a trial judge denied motions to
dismiss, allowing the case to proceed to jury trial. We have
explained that decisions by intervening adjudicators have a
significant impact on the question of whether an officer was
objectively reasonable in his belief that probable cause existed
for an arrest. See, e.g., Durham v. Horner, 690 F.3d 183, 189
(4th Cir. 2012) (discussing the effect of an indictment issued
by a properly constituted grand jury); Torchinsky v. Siwinski,
942 F.2d 257, 261-62 (4th Cir. 1991) (discussing relevance of a
neutral magistrate’s decision to issue a warrant and a district
court judge’s finding that probable cause was present).
However, this protective effect does not shield officers who
have “deliberately supplied misleading information that
influenced the decision.” Durham, 690 F.3d at 189 (internal

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quotations omitted); cf. Evans v. Chalmers, 703 F.3d 636, 647-48
(4th Cir. 2012) (explaining that a prosecutor’s decision to move
forward with a case may constitute a superseding intervening
cause, but that “officers may be held . . . liable when they
have lied to or misled the prosecutor”).
Here, the district court explained that Swick’s
characterization of the interaction was so different from
Wilde’s that there was a genuine dispute about whether Wilde
“deliberately or recklessly misstated the facts” to the
magistrate who issued the warrant. Swick, 2012 WL 3780350, at
*12. We cannot exercise jurisdiction because any determination
about the protective effect of the decisions made by intervening
adjudicators rests on the outcome of the factual disputes at
hand. To be clear, if Wilde’s version of the facts is redeemed
as accurate, then his corresponding characterization to the
intervening adjudicators would provide him protection. But, if
Swick’s version of the facts ultimately rings true, then Wilde’s
mischaracterization of the events would render the protection
offered by the decisions of intervening adjudicators unavailing.
The same factual disputes that underlie the district
court’s holding on probable cause also underlie its disposition
on the surviving claims. For instance, the court found that the
outcome of Swick’s criminalization of speech claim will hinge in
large part on the factfinder’s determination of whether Swick

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exhibited criminally threatening conduct. Swick, 2012 WL
3780350, at *17; see Virginia v. Black, 538 U.S. 343, 359-60
(2003) (holding that “true threats,” or “statements where the
speaker means to communicate a serious expression of an intent
to commit an act of unlawful violence to a particular individual
. . .” are not protected speech). Similarly, the court
explained that the outcome of Swick’s fabrication of evidence
claim turns on whether Wilde misled the magistrate judge in
seeking a warrant. Swick, 2012 WL 3780350, at *21. As such,
the court’s factual findings permeate the order and prevent us
from reviewing this interlocutory appeal.
IV.
Wilde’s version of the facts -- five men surrounding an
officer to question him in an accusatory posture about pending
criminal charges while cutting off his escape route -- differs
substantially and materially from Swick’s version of a calm
conversation while his friends stood or sat at a distance.
Although Wilde attempts to convince us that his appeal presents
only a legal question based on undisputed facts, his arguments
rely on his own version of the events, not Swick’s. As the
district court explained, this case ultimately will come down to
the “credibility of the parties’ witnesses.” Swick, 2012 WL
3780350, at *14. Such a quintessential factual dispute is not

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immediately appealable. We therefore dismiss the appeal for
lack of jurisdiction and remand to the district court for
further proceedings.
REMANDED

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