Appeals court sides with cop in lawsuit

Apr. 02, 2014 @ 06:17 PM

A divided N.C. Court of Appeals panel sided this week with a Chapel Hill police officer who’s trying to fend off a false-imprisonment lawsuit from a man who claims he was racially profiled.
The panel’s majority said Officer David Funk wasn’t acting out of malice when he arrested barbershop owner Charles Brown on West Rosemary Street in June 2009.
Funk instead had a mistaken belief Brown was Cuman Fearrington, a man with an arrest warrant pending against him who’d evaded police in downtown Chapel Hill earlier the same day, Judge Robert C. Hunter said.
Given the facial resemblance between Brown and Fearrington, Funk’s error was “understandable,” the officer mitigating it by using “reasonable due diligence” to check Brown’s ID and release him on the spot, Hunter said for himself and Judge Doug McCullough.
But the decision drew a strongly worded dissent from Judge Martha Geer, who among other things faulted her colleagues for giving more weight to Funk’s account than judges normally should when deciding whether to dismiss a lawsuit before trial.
Geer also said Funk lacked probable cause to make an arrest because he hadn’t known for sure he was arresting Fearrington.
Hunter and McCullough’s ruling sanctioned an “arrest first, investigate later” approach to law enforcement, she said.
Geer’s dissent ensured that Brown and his lawyer, Al McSurely, can take the case to the N.C. Supreme Court.
By law, the high court has to hear cases decided by divided Court of Appeals panels if the losing party asks it to; it doesn’t have to review them when panels are unanimous.
Tuesday’s decision was noteworthy in that all three judges disagreed with attempts by lawyers for the town to characterize Brown’s detention as the kind of short “investigatory stop” courts allow when police aren’t sure they have probable cause to arrest someone.
Accepting Brown’s story as true, it was evident Funk placed him under arrest, the officer having said as much as he handcuffed the barber, Hunter said.
The pending arrest warrant automatically gave Funk probable cause to arrest Fearrington, and the officer called Brown “Mr. Fearrington” when he first detained him, Hunter said.
And while Brown immediately protested the mistake, Funk had the authority to insist on an ID check because “aliases and false identifications are not uncommon,” Hunter said.
Geer, however, said a jury should decide whether Funk really thought he was about to arrest Fearrington.
When police make an investigatory stop, they’re allowed to ask questions and check IDs, she said.
But to take the next step and make an arrest, they need more to go on than a mere desire “to obtain additional information to confirm or dispel” their suspicions, Geer said.
She noted that Funk’s own account implied he wasn’t sure of Brown’s identity, as he claimed the barber had tried to hide his face from officers as he walked toward Carrboro.
Given the competing claims, it’s possible a jury could decide Funk stopped Brown “merely because he was a black man walking in the vicinity of … where Mr. Fearrington had evaded arrest earlier in the day,” she added.
The panel majority overruled a lower-court decision by Superior Court Judge Carl Fox that would have allowed the false-imprisonment claim to go forward against Funk.
Brown’s suit also targets the town government, and Hunter and McCullough declined a request that they stop that end of the case too. Funk’s appeal claimed governmental immunity; the town’s did not.
The panel included two Democrats in Hunter and Geer. McCullough is a Republican.