Court of Appeals panel: High Point cop isn’t shielded from assault-and-battery claim by public official immunity doctrine.

A High Point police officer accused of assault and battery, malicious prosecution and false arrest has sought to get a lawsuit against him dismissed under an esoteric legal doctrine known as public official immunity.

The state courts have so far said no, with a split panel of the NC Court of Appeals ruling 2-1 that a lawsuit by High Point resident Bruce Bartley against Detective Matt Blackman can go forward. The split ruling allows Blackman to appeal to the Supreme Court; if the high court agrees the officer isn’t protected by public official immunity, the case can go to trial.

“In North Carolina, if you’re a public official — that means someone who has discretion in their job, as opposed to a regular employee like the driver of a truck — any public official, whether it’s a police officer or any other department, can only be sued in their individual capacity if they’ve acted maliciously, if they were corrupt, or they were acting in a scope outside of their official authority,” said Seth Cohen, a lawyer in Greensboro who is representing Bartley. “In this case, we said the officer was acting maliciously.”

Blackman, a detective in the High Point Police Department’s violent crimes unit, followed the 60-year-old Bartley to his home on the north side of High Point as he was returning from a veterinarian visit in August 2017. Bartley parked his car in his driveway and got out. Blackman, who was wearing plainclothes and driving an unmarked car, ordered Bartley to get back in his car, but did not identify himself as a police officer or explain the reason for the traffic stop, according to a narrative included in the Court of Appeals July 7 ruling.

Bartley ignored Blackman’s orders, telling him he was on private property as he walked to the back of his car to retrieve his sick cat. (Blackman would later testify that he had observed Bartley passing a slow-moving truck over a double yellow line, and that he activated his blue strobe lights and siren. Bartley, in turn, testified that he hadn’t heard the siren or noticed the blue lights on Blackman’s car and did not realize he was a police officer.)

When Bartley ignored Blackman’s order to get back in the car, the police officer used his radio to call in backup and then, according to Bartley’s testimony, “body slammed’ him against the trunk of the car, handcuffed him and told him he was being detained. Blackman charged Bartley with resisting, delaying or obstructing an officer and passing on a double yellow line, and held him in the backseat of his patrol car until he finished writing the citation. The charges were eventually dropped after Bartley completed driving school.

In appealing a decision by Superior Court Judge Eric C. Morgan to allow the lawsuit against him to go forward, Blackman argued that because he was a public official conducting his duty, he was entitled to the protection of public official immunity.

In the majority opinion authored by Judge John Arrowood, the Court of Appeals recognized that Bartley “alleges Officer Blackman acted with malice by body slamming him into the truck of his car and charging and arresting him for resisting an officer without probable cause.” Citing a 1984 case that established precedent, the court said, “A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.”

Arrowood, who was joined by Judge Richard Dietz, concluded, “Blackman’s rough use of force in arresting an elderly, non-threatening man in an attempt to cite him for a traffic offense raises a genuine dispute as to whether Officer Blackman acted with malice.”

In his dissent, Judge John M. Tyson wrote that the burden is on Bartley to show that Blackman was not acting in good faith when he forcibly detained him. Citing a 1995 decision by the state Supreme Court in Leete v. city of Warren, Tyson wrote, “It is well settled that absent evidence to the contrary, it will always be presumed that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. This presumption places a heavy burden on the party challenging the validity of public officials’ actions to overcome this presumption by competent and substantial evidence.”

Tyson wrote that Bartley “has failed to allege any facts to forecast Officer Blackman’s conduct was wanton or done with reckless indifference to plaintiff’s rights, when compared to what any reasonable police officer would have done in Officer’s Blackman’s position, given [Bartley’s] admitted conduct.”

Cohen said if the case makes it to trial, his client will have to clear a double hurdle.

“We allege that by throwing him against the trunk of the car, that force was not needed at all,” he said. “He wasn’t running away. He didn’t have weapons. On top of that, we have to show that not only was there more force than needed, but it was malicious.”

Bartley’s case won’t set precedent in the case law that determines when law enforcement officers are shielded from legal liability in North Carolina, Cohen said, noting that all three appellate are in agreement on the three elements of malice.

“Generally, the courts, in my view, have been more likely than not to rule on the side of the police unless it’s really, really bad,” Cohen said. “If it’s a close call, they side with the police.”

A similar legal doctrine at the federal level known as “qualified immunity” has recently come under scrutiny as the eruption of nationwide protest in the wake of the murder of George Floyd has focused new attention on police accountability. The George Floyd Justice in Policing Act of 2020, passed by the Democratic-controlled US House on June 25, “expressly bars the defense of qualified immunity” in federal lawsuits under Section 1983 of the US code “against state and local law enforcement by prohibiting defense based on the ‘good faith’ of the official,” according to a congressional analysis.

While Bartley’s lawsuit against Detective Blackman won’t change any legal standards, Cohen said the outcome will still help define the outer limits of acceptable police conduct.

“I would say it’s an important case given what’s going on with Black Lives Matter and police use of excessive force,” Cohen said. “This doesn’t change the standard. It’s how we apply the rule. How bad does it have to be before we hold them accountable?”

Even with the groundswell of movement towards overhauling policing, there’s still fierce resistance to reforming the patchwork of federal and state legal doctrines shielding police officers from legal liability.

At the federal level, the US Senate has yet to take up the Justice in Policing Act, and White House Press Secretary Kayleigh McEnany has reportedly called repeal of qualified immunity a “total and complete nonstarter.”

The Colorado General Assembly eliminated the use of qualified immunity in that state’s courts earlier this month, and the Connecticut state House passed reform bill on July 24 that prompted Connecticut Fraternal Order of Police President John Krupinski to declare: “Policing as everyone knows it is over.”

Cohen said he’s aware of no bill filed in the North Carolina General Assembly to eliminate public official immunity — the state equivalent.

In North Carolina, the police are shielded from accountability in another way: Although the lawsuit against Detective Blackman has been allowed to go forward, the superior court judge dismissed the claims against the city of High Point because under state law the city has sovereign immunity. The state courts have recognized, however, that cities and counties may waive immunity by purchasing liability insurance. Mayor Jay Wagner told Triad City Beat that there has been no discussion among city council members about purchasing liability insurance.

Cohen said if Bartley wins in court, the outcome could hold the city accountable, if only indirectly.

“The city of High Point is representing [Blackman],” Cohen said. “If we win, I believe the city of High Point would pay the damages.”

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