Brad R. Johnson v. County of Horry, South Carolina

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2126
BRAD R. JOHNSON,
Plaintiff - Appellant,
v.
COUNTY OF HORRY, SOUTH CAROLINA; JANET BROWN; M. LOIS
EARGLE; TIM CHRISTOPHER; PAUL ABAJIAN,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cv-02570-TLW)
Argued: December 1, 2009 Decided: January 5, 2010
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stuart M. Axelrod, AXELROD & ASSOCIATES, Myrtle Beach, South
Carolina, for Appellant. Jerome Scott Kozacki, WILLCOX BUYCK &
WILLIAMS, PA, Florence, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 15 --

PER CURIAM:
The appellant, Brad Johnson, filed this suit against Horry
County, South Carolina and employees in the County Auditor’s
Office, including: Janet Brown, an administrative assistant, M.
Lois Eargle, the county auditor, and Tim Christopher, an
administrative assistant. Johnson also sued Paul Abajian, an
Horry County police officer. Johnson filed suit against Eargle,
Brown, Johnson and Officer Abajian in their individual, not
official, capacities. Johnson asserted claims for money damages
pursuant to 42 U.S.C. § 1983 based on the County’s enforcement
of state motor vehicle registration laws. Johnson also sought a
declaratory judgment that the statutes at issue, S.C. Code Ann.
§§ 56-3-150(B) & 160 (collectively, “the vehicle registration
statutes”), were unconstitutional on their face and as applied.
Specifically, Johnson alleged that the statutes violated the
Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, the Privileges and Immunities Clause
(Art. IV, § 2, Cl. 1) of the United States Constitution, and the
dormant Commerce Clause found in Article I of the United States
Constitution. His claims arising under § 1983 were based on his
contention that the defendants improperly executed and enforced
the unconstitutional vehicle registration statutes.
The District Court for the District of South Carolina
granted the defendants’ motion for summary judgment on all
2

-- 2 of 15 --

issues and denied Johnson’s motion for partial summary judgment.
Finding that the appellant’s arguments lack merit, we affirm.
I. BACKGROUND
From June 2003 to January 7, 2005, Johnson lived in North
Carolina and commuted to his job at Francis Marion University
located in Florence, South Carolina.1 J.A. 195. In March 2004
Johnson purchased two residential rental properties in Horry
County and he visited at least one of these approximately 15
times per month. J.A. 363. By his own admission, Johnson was a
resident and domiciliary of South Carolina from January 7, 2005
until April 22, 2007, which he alleges was necessitated under
threat of incarceration by Horry County’s unlawful enforcement
of the vehicle registration statutes. J.A. 195.
As part of an increased effort to collect personal property
taxes on motor vehicles determined to be in violation of the
1 Although the parties apparently do not dispute that
Johnson’s residence and domicile were in Illinois during this
time period, the record is confusing on this point. Although
Johnson stated in an affidavit that he was a resident of
Illinois, J.A. 195, he stated in that same affidavit that “at
all times relevant to the allegations he was employed “for
academic year 2003-04 (and beyond)” by Francis Marion University
in Florence, South Carolina and “resided [in] . . . Oak Island,
NC from June 2003 through . . . January 7, 2005.” J.A. 196
(emphasis added). Nonetheless, whether Johnson was a resident
of Illinois or North Carolina prior to becoming a resident and
domiciliary of South Carolina in January 2005 has no effect on
the result in this case.
3

-- 3 of 15 --

vehicle registration statutes, the Horry County Auditor’s Office
notified Johnson in July 2004 that he may be in violation and
warned of potential criminal prosecution. J.A. 124-25. Johnson
received a second letter on September 17, 2004, stating that the
Auditor’s Office had received delivery confirmation of its July
2004 letter and asked that he contact the office immediately.
In early October 2004 Eargle prepared a sworn affidavit
declaring that Johnson was in violation of the vehicle
registration statutes. On October 11, 2004, Johnson received a
letter from a magistrate judge alleging a violation of the
statutes and threatening criminal action unless he contacted the
magistrate court. Johnson called the magistrate who advised him
to speak with Eargle, which he did in an effort to explain his
living and working arrangements.
On January 7, 2005, Johnson met with Officer Abajian at one
of Johnson’s rental properties. At the meeting Officer Abajian
instructed Johnson to register his vehicle with the South
Carolina Department of Motor Vehicles and obtain a South
Carolina driver’s license. Johnson was not taken into custody,
but, allegedly under duress, immediately took the steps
necessary to register his vehicle. He then filed the present
challenge to the vehicle registration statutes.
4

-- 4 of 15 --

II. ANALYSIS
The district court determined that Johnson’s claims
concerning the unconstitutionality of the vehicle registration
statutes were without merit, both facially and as applied. As
an alternative basis for its decision, the district court also
concluded that the individual defendants had qualified immunity
from Johnson’s claims arising under 42 U.S.C. § 1983 “because a
reasonable official would not have been cognizant that his
actions - enforcing facially valid statutes – violated any of
the constitutional rights asserted by the plaintiff.” J.A. 371.
Finally, the district court granted summary judgment to Horry
County because Johnson failed to identify an Horry County policy
that could result in liability.
We review a district court’s grant of summary judgment de
novo, “viewing the facts in the light most favorable to, and
drawing all reasonable inferences in favor of, the nonmoving
party.” Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d
194, 198 (4th Cir. 2005). A grant of summary judgment is
warranted only if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
5

-- 5 of 15 --

56(c).2 “[A]s a practical matter, we recognize that summary
judgment may be particularly appropriate given the
circumstances, because it is favored as a mechanism to secure
the just, speedy and inexpensive determination of a case, where
its proper use can avoid the cost of a trial.” JKC Holding Co.
LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001) (citing Thompson Everett, Inc. v. Nat’l Cable
Advert., L.P., 57 F.3d 1317, 1322-23 (4th Cir. 1995)).
The South Carolina vehicle registration statutes provide,
in part, as follows:
The vehicle of a nonresident must be registered
and licensed pursuant to this chapter upon the earlier
of a nonresident's:
(1) subsequent establishment of domicile in this
State; or
(2) operation of the vehicle in this State for an
accumulated period exceeding one hundred fifty days.
S.C. Code Ann. § 56-3-150(B).
Every foreign vehicle moved into this State the
owner of which is a resident of this State immediately
becomes liable for registration and license under the
provisions of this chapter, and for the purpose of
this section, the term “resident of this State” shall
include every person who moves temporarily or
permanently into this State for the purpose of
engaging in any business, profession or employment.
S.C. Code Ann. § 56-3-160.
2 Due to amendments to the Federal Rules of Civil Procedure
effective December 1, 2009, this provision is now located in
Fed. R. Civ. P. 56(c)(2).
6

-- 6 of 15 --

Johnson contends that the statutes violate the Equal
Protection Clause and the Privileges and Immunities Clause
because “they facially treat residents differently from
nonresidents . . . and facially burden every nonresident who
enters and leaves South Carolina.” Br. of Appellant at 29
(quotations omitted). In his First Amended Complaint Johnson
asserts that
based upon the plain meaning of S.C. Code Ann. § 56-3-
160, when a legal resident of another state (i.e., an
[sic] S.C. nonresident) moves across the S.C. state
line operating a motor vehicle, owned by the S.C.
nonresident and displaying valid non-S.C. car-tags,
the S.C. nonresident/owner (a) is deemed (legal
fiction created) a S.C. legal resident/owner and (b)
is thereby required to immediately (1) register and
license his vehicle . . . .
J.A. 16.3
Johnson asserts that the vehicle registration statutes
prohibit him from residing in North Carolina and traveling to
South Carolina for work because, once he does so in excess of
150 days, he becomes subject to the registration and licensing
requirements of S.C. Code Ann. § 56-3-150(B). With respect to
the Equal Protection Clause, Johnson argues that he “is
3 Johnson’s characterization of the statute is confusing.
The plain language of the statute means that any resident of
South Carolina, either a long-time resident or one who has moved
there temporarily or permanently, must register and license any
vehicle registered in another state once it is brought to South
Carolina.
7

-- 7 of 15 --

currently in fear of criminal prosecution by North Carolina law
enforcement persons because [he] cannot comply with North
Carolina Law (requiring registration and licensing of [his]
motor vehicles in North Carolina) and remain in compliance with”
the vehicle registration statutes. Br. of Appellant at 41.
Accordingly, Johnson says “that under threat of incarceration,
[he] was forced to change [his] legal residence and domicile” to
South Carolina from Illinois. Id.
There is a serious and dispositive flaw in Johnson’s
analysis. S.C. Code Ann. § 56-3-150(A) provides as follows:
A foreign privately owned and operated passenger
vehicle of a nonresident, otherwise subject to
registration and license as provided by this chapter,
may be operated within this State without being
registered and licensed pursuant to this chapter,
subject to the conditions that at all times when
operated in this State the vehicle:
(1) is duly registered or licensed in the state,
territory, district, or country of residence of the
owner; and
(2) has displayed on it a valid registration card and
registration or license plate or plates.
(Emphasis added). The statute thus “provides a general
exemption from the registration requirement for ‘[a] foreign
privately-owned-and-operated passenger vehicle of a
nonresident,’” United States v. Johnson, 256 F.3d 214, 216 (4th
Cir. 2001) (quoting § 56-3-150), so long as the vehicle at issue
is registered or licensed in the owner’s state of residence.
8

-- 8 of 15 --

Although Johnson was either a resident of North Carolina or
Illinois at the time of the County’s enforcement of the vehicle
registration statutes, see supra note 1, the vehicle at issue
displayed an Oregon license plate.4 J.A. 128, 352. Therefore,
Johnson did not fall within the general exemption contained in
§ 56-3-150(A) – his pickup truck was not registered or licensed
in the state of his purported residency, Illinois or North
Carolina.5 Johnson was thus “otherwise subject to registration
and license” under § 56-3-150(B), which required him to register
and license his vehicle if he became a domiciliary of South
Carolina or if he operated his pickup truck in South Carolina in
excess of 150 days.6
The Equal Protection Clause states, in relevant part, that
“[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
4 Johnson admits that he established his residency and
domicile in South Carolina on January 7, 2005 (though he claims
to have done so under duress from the defendants’ enforcement of
the vehicle registration statutes) and there is no question that
he was required to register his vehicle in that state under 56-
3-150(B) upon doing so.
5 There is no evidence in the record that Johnson was at any
relevant time a resident of Oregon.
6 The validity of the County’s determination that Johnson
had in fact operated the vehicle in South Carolina in excess of
150 days is not before us, but we note that Johnson admitted
having been at one of his residences in Horry County about
fifteen times per month. J.A. 115.
9

-- 9 of 15 --

amend. XIV, § 1. “The Clause requires that similarly-situated
individuals be treated alike.” Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008) (citing City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985)). “Under an Equal
Protection analysis, courts generally hold that ‘legislation is
presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state
interest.’ Id. at 302-303 (quoting Cleburne, 473 U.S. at 440).
As discussed by the district court, we disagree with
Johnson’s assertion that non-residents receive disparate
treatment under the vehicle registration statutes. Clearly,
§ 56-3-160 only applies to residents and cannot, therefore,
subject non-residents to disparate treatment. Section 56-3-
150(B), in contrast, does not apply to residents at all; it
simply treats certain non-residents (those who operate a vehicle
in the state in excess of 150 days without valid registrations
from their state of residence) the same as South Carolina
residents. Johnson, as a non-resident driving a vehicle on the
roads of South Carolina without a valid registration from his
state of residence, is not similarly situated with South
Carolina residents. Likewise, Johnson is not similarly situated
with those nonresident drivers who do travel to South Carolina
for employment but maintain a valid vehicle registration in
their state of residence (and who are thus exempted from
10

-- 10 of 15 --

registering their vehicle in South Carolina by § 56-3-150(A)).
A nonresident does not “move” into the state merely by crossing
the state line; the term plainly contemplates a fixed rather
than transitory status.
Moreover, a nonresident subject to the vehicle registration
statutes is not being treated differently than a resident. The
crux of Johnson’s complaint is not that he is being subject to a
different obligation from South Carolina residents (the
registration and payment of property tax on his vehicle), but
that he is being subjected to those obligations. In essence, he
seeks to be treated differently from South Carolina residents.
For the same reasons set forth above we also agree with the
district court that “the statutes do not unconstitutionally
burden the right to interstate travel.” J.A. 358. South
Carolina undoubtedly has a strong interest in regulating the
vehicles on its roadways and Johnson has not carried his “burden
‘to negate every conceivable basis which might support’ the
legislation.” Giarratano, 521 F.3d at 303 (quoting Lehnhausen
v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). The
vehicle registration statutes only apply to those who move to
South Carolina or who, like Johnson, avail themselves, for more
than 150 days, of the use of South Carolina’s roadways while
operating a vehicle that is not registered in their own state of
residence. Contrary to Johnson’s assertions, the statutes do
11

-- 11 of 15 --

not significantly infringe on “the right of a citizen of one
State to enter and to leave” South Carolina, Saenz v. Roe, 526
U.S. 489, 500 (1999), or discriminate “against citizens of other
States where there is no substantial reason for the
discrimination beyond the mere fact that they are citizens of
other States.” Toomer v. Witsell, 334 U.S. 385, 396 (1948). In
short, Johnson may travel across South Carolina unimpeded so
long as he abides by the reasonable and minimally burdensome
regulations necessary to protect the safety of that state’s
citizens.
Finally, we find no merit in Johnson’s contention that the
vehicle registration statutes violate the dormant commerce
clause.
The Commerce Clause states, “The Congress shall
have Power ... To regulate Commerce . . . among the
several States,” U.S. Const. art. I, § 8, cl. 3, and
it is well-established that this affirmative grant of
authority implies a “negative” or “dormant” constraint
on the power of the States to enact legislation that
interferes with or burdens interstate commerce. See
Dennis v. Higgins, 498 U.S. 439, 447, 111 S.Ct. 865,
112 L.Ed.2d 969 (1991) (“It is also clear, however,
that the Commerce Clause does more than confer power
on the Federal Government; it is also a substantive
restriction on permissible state regulation of
interstate commerce” (internal quotation marks and
citation omitted)).
Brown v. Hovatter, 561 F.3d 357, 362–63 (4th Cir. 2009).
Determining whether a state law violates the dormant
Commerce Clause involves a two-tiered analysis. Id. at 363.
12

-- 12 of 15 --

The first inquiry is “whether the state law discriminates
against interstate commerce.” Id. (emphasis omitted). In this
context, “‘discrimination’ simply means differential treatment
of in-state and out-of-state economic interests that benefits
the former and burdens the latter.” Oregon Waste Systems, Inc.
v. Dep’t of Env’tl Quality, 511 U.S. 93, 99 (1994) (emphasis
added). If the state law is nondiscriminatory, a court asks
whether it “unjustifiably burdens interstate commerce.” Brown,
561 F.3d at 363. The law “will be upheld unless the burden
imposed on [interstate] commerce is clearly excessive in
relation to the putative local benefits.” Pike v. Bruce Church,
Inc., 397 U.S. 137, 142 (1970).
The district court properly rejected Johnson’s claim that
requiring nonresidents to register their vehicles after they are
determined to be a resident pursuant to South Carolina law
constitutes a discriminatory trade barrier prohibited by the
dormant Commerce Clause. The vehicle registration statutes are
directed at activity in South Carolina, not elsewhere, and they
do not discriminate between in-state and out-of-state interests.
South Carolina’s registration requirements do not impose a
disproportionate burden on interstate commerce. If anything,
South Carolina’s vehicle registration requirements burden in-
13

-- 13 of 15 --

state residents, not vice-versa.7 See Am. Trucking Assocs., Inc.
v. Mich. Public Serv. Comm'n, 545 U.S. 429, 434 (2005)
(upholding fee assessed only against intrastate transactions).
As the district court observed, the vehicle registration
statutes “are necessary to insure public safety.” J.A. 359
(quoting Arizona v. Richey, 762 P.2d 585, 587 (Ariz. Ct. App.
1988)). As such, they are nothing more “than an unobjectionable
exercise of the State's police power.” Am. Trucking Assocs.,
545 U.S. at 434.
For the foregoing reasons, South Carolina Code Ann. § § 56-
3-150(B) and 56-3-160 are constitutional, both facially and as
7 Although the district court did not mention it, we note
the record contains no factual evidence that the registration
requirement “imposes any significant practical burden upon
interstate trade.” Am. Trucking Assocs., 545 U.S. at 434.
Johnson has thus not shown that the vehicle registration
statutes “involve burdens placed on the interstate movement of
goods, materials, or other articles of commerce.” Brown, 561
F.3d at 365.
14

-- 14 of 15 --

15
applied.8 Accordingly, we affirm the judgment of the district
court.
AFFIRMED
8 Because we find the vehicle registration statutes at issue
constitutional, we need not address the district court’s
alternative finding that, even if the statutes were
unconstitutional, the individual defendants would be entitled to
qualified immunity and Horry County was not subject to liability
under Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978). We
note, however, that the defense of qualified immunity only
“protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Pearson v. Callahan, 555 U.S. ___, 129 S.
Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (emphasis added)). The defense is not available in
“cases against individuals where injunctive relief is sought
instead of or in addition to [monetary] damages.” Id. at 822
(emphasis added). Thus, while the defense of qualified immunity
may have protected the individual defendants from judgment
awarding money damages, a determination of the constitutionality
of the statutes was still required because Johnson also sought
“[a] preliminary and permanent injunction enjoining [Horry
County] and [the] Individual County Defendants from executing
established practices and procedures enforcing” the vehicle
registration statutes. J.A. 35 (emphasis omitted).

-- 15 of 15 --