                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1999


BRANDON PEGG,

                Plaintiff - Appellee,

           v.

GRANT HERRNBERGER, individually and in his capacity as agent
and employee of the West Virginia State Police,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.  John Preston Bailey,
District Judge. (5:14-cv-00116-JPB)


Argued:   October 27, 2016                 Decided:   January 4, 2017


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Reversed and remanded with instructions by published opinion.
Judge Agee wrote the opinion, in which Judge Niemeyer and Judge
King joined.


ARGUED: Monte Lee Williams, STEPTOE & JOHNSON PLLC, Morgantown,
West Virginia, for Appellant. Robert G. McCoid, MCCAMIC, SACCO
& MCCOID, P.L.L.C., Wheeling, West Virginia, for Appellee.   ON
BRIEF: Deva A. Solomon, Robert L. Bailey, STEPTOE & JOHNSON
PLLC, Morgantown, West Virginia, for Appellant. Paul J. Harris,
HARRIS LAW OFFICES, Wheeling, West Virginia, for Appellee.
AGEE, Circuit Judge:

      Brandon     Pegg       sued   West        Virginia    State     Trooper   Grant

Herrnberger, alleging that Herrnberger used excessive force in

effectuating     the     arrest     of    Pegg,    in   violation     of    state    and

federal law.      Herrnberger appeals the district court’s denial of

his motion for summary judgment based upon that court’s holding

Herrnberger was not, as a matter of law, entitled to qualified

immunity.      For the reasons that follow, we reverse the district

court’s order denying Herrnberger’s motion for summary judgment

and   remand    with     instructions       to    enter    judgment    in   favor    of

Herrnberger.



                              I. Factual Background

      On August 4, 2013, Herrnberger and another trooper, William

Beck, were examining an abandoned vehicle on the side of the

road when Brandon Pegg drove by slowly in his truck with the

driver’s side window open.               Herrnberger noticed the truck had an

expired inspection sticker and called out to Pegg to stop the

vehicle.      Pegg did not stop and sped away.                   The troopers then

left in pursuit of Pegg’s truck and eventually pulled him over.

      Beck    approached      the   driver’s       side     of   Pegg’s    vehicle   to

speak with Pegg while Herrnberger approached the passenger side

to    speak    with    the    front       passenger,       Robert   Beever.         When



                                            2
Herrnberger asked to see Beever’s identification, Pegg asked why

Beever needed to produce identification.

      Herrnberger contends that Pegg then reached for something

between his legs, a claim Pegg denies.                     Herrnberger asserts that

Pegg’s reaching motion appeared suspicious, so he approached the

driver’s door and ordered Pegg out of his truck.                          Pegg complied

and     followed       Herrnberger     to        the      rear    of    Pegg’s     truck.

Herrnberger      then    instructed     Pegg       to    face    the    truck,    put    his

hands behind his back, and lock his hands together.                         Before Pegg

turned    to    face    the   truck,    Herrnberger          demonstrated        how    Pegg

should lock his hands together.

      Pegg placed his left hand at the small of his back and

began    to    bring    his   right    arm       behind    his    back,   but     did    not

interlock his hands as instructed.                      Herrnberger grabbed Pegg’s

right arm.       Pegg then turned and said “Why is this happening or

something along those lines” to Herrnberger and pulled his right

arm away from the trooper.              J.A. 46.           Herrnberger then pushed

Pegg against the truck with his left arm, and attempted to pull

Pegg’s right arm back, which Pegg resisted.                            Herrnberger then

took Pegg to the ground, and both troopers pinned Pegg there and

handcuffed him in an event that took less than forty seconds

before Pegg was helped to his feet.                    As a result, Pegg claims he

suffered       minor   scrapes   and    abrasions          on    his   head,     which    he



                                             3
treated with peroxide and Neosporin, but did not seek medical

attention.

      The troopers arrested Pegg for assaulting a police officer

(W. Va. Code § 61-2-10b(e)), obstructing an officer (W. Va. Code

§ 61-5-17(a)), and driving with an expired inspection sticker

(W. Va. Code § 17C-16-9).           Pegg was jailed for 8–12 hours before

released.     A magistrate judge dismissed the assault charge for

lack of probable cause, and the prosecuting attorney dismissed

the rest of the charges for reasons not apparent on the record.

      Pegg then filed a complaint in the U.S. District Court for

the   Northern      District   of     West    Virginia    against    Herrnberger,

individually and in his official capacity pursuant to 42 U.S.C.

§   1983.     The    complaint      alleged     federal    claims    of     unlawful

arrest,     retaliatory     arrest,     and    excessive    force,        and   state

claims of outrage/intentional infliction of emotional distress

and battery.        Herrnberger filed a motion for summary judgment,

arguing that the suit was barred against him in his official

capacity    based     on   sovereign     immunity    and    in   his      individual

capacity because of qualified immunity.

      The district court granted Herrnberger’s motion for summary

judgment in part and denied it in part.                    All claims against

Herrnberger in his official capacity were dismissed as barred by

sovereign     immunity.        Pegg    does    not   challenge      the    district



                                         4
court’s      ruling    as    to    the    official   capacity   claims. 1         The

district court denied summary judgment for the claims against

Herrnberger       in   his    individual        capacity,    ruling   he    was   not

entitled to qualified immunity.

       Herrnberger filed a timely appeal, and we have jurisdiction

of the appeal under 28 U.S.C. § 1291. See Am. Civil Liberties

Union, Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th Cir. 1993)

(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (stating

questions of law surrounding qualified immunity are appealable

as final decisions within the meaning of § 1291).



                                    II.    Analysis

       “We review de novo a district court’s denial of summary

judgment and qualified immunity, construing all facts in the

light most favorable to the nonmovant.”                     Orem v. Rephann, 523

F.3d 442, 445 (4th Cir. 2008).               Thus, for purposes of our review

here, we construe all facts in the light most favorable to Pegg

as non-moving party.              For issues concerning qualified immunity,

we have jurisdiction to consider purely legal questions, but not

over       the   district    court’s       “determination     that    the    summary

judgment record in this case raised a genuine issue of fact”

       1A fifth claim, for false imprisonment, was dismissed as
barred by the statute of limitations and is also not at issue on
appeal.



                                            5
because that is not a final decision for purposes of 28 U.S.C. §

1291.     Johnson v. Jones, 515 U.S. 304, 313 (1995). 2                            Put another

way, “we possess no jurisdiction over a claim that a plaintiff

has not presented enough evidence to prove that the plaintiff’s

version     of     the        events      actually            occurred,      but      we    have

jurisdiction over a claim that there was no violation of clearly

established law accepting the facts as the district court viewed

them.”     Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997).

Consequently,          we    accept      the       facts       as    the     district      court

articulated them when it determined whether summary judgment was

appropriate,      and       then    we   determine            “whether,    based     on     those

facts, a reasonable person in the defendant’s position could

have believed that he or she was acting in conformity with the

clearly established law at the time.”                            Gray-Hopkins v. Prince

George’s Cty., 309 F.3d 224, 229 (4th Cir. 2002).

     “Qualified             immunity          protects          officers       who         commit

constitutional          violations        but          who,     in    light     of      clearly

established      law,       could   reasonably            believe     that    their     actions

were lawful.”           Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc).              When evaluating whether a right was clearly

established       at    the    time      of    a       violation,     courts    do    not    ask

“whether    the    right       allegedly        violated        was    established         ‘as   a

     2 The opinion omits internal quotation marks, alterations,
and citations here and throughout, unless otherwise noted.


                                                   6
broad general proposition’ but whether ‘it would be clear to a

reasonable          official    that     his       conduct    was     unlawful       in    the

situation he confronted.’”               Raub v. Campbell, 785 F.3d 876, 882

(4th Cir. 2015) (quoting Saucier v. Katz, 533 U.S. 194, 201–202

(2001)).

                A.       Qualified Immunity for Unlawful Arrest

       The district court determined that Herrnberger’s arrest of

Pegg     was    unlawful       because      it     believed     Herrnberger          did    not

“principally” arrest Pegg for the expired inspection sticker.

Instead,       the       district    court         opined    the      arrest     was       “for

obstructing         an    officer    only      after    he    asked      [Herrnberger]        a

question during the traffic stop.”                    J.A. 376.

       Herrnberger         denies    that      motivation       and,     in    any     event,

argues       that    purported      subjective        reasons      for    arresting        Pegg

should not enter into the qualified immunity analysis because

Pegg’s violation of West Virginia law constituted probable cause

for    the     arrest.       Therefore,        with    probable       cause    to    arrest,

Herrnberger contends he is entitled to qualified immunity.                                   We

agree with Herrnberger.

       The Supreme Court has stated unequivocally that “[i]f an

officer has probable cause to believe that an individual has

committed even a very minor criminal offense in his presence, he

may,     without         violating     the       Fourth      Amendment,        arrest       the

offender.”          Atwater v. City of Lago Vista, 532 U.S. 318, 354

                                               7
(2001).          In    Atwater,       the     arrestee    committed         a     seat    belt

violation punishable only by a fine.                      Nonetheless, the Supreme

Court     held        that   the      Fourth       Amendment   does     not          forbid    a

warrantless arrest for such a minor violation.                        Id.

      Here,       Pegg       admits     that       his   vehicle      had       an     expired

inspection sticker in violation of West Virginia law. 3                                See W.

Va. Code § 17C-16-9.            Further, he admits this violation occurred

in   Herrnberger’s           presence.         Therefore,      just    as       in    Atwater,

though Pegg’s offense was minor, the Fourth Amendment does not

forbid a warrantless arrest for such a violation.

      The   Supreme          Court    specifically       rejected      in       Atwater       the

argument Pegg makes here: that the Fourth Amendment would forbid

“custodial       arrest,      even     upon    probable     cause,     when       conviction

could not ultimately carry any jail time . . . .”                               Atwater, 532

U.S. at 346.           Under Atwater, therefore, whether or not a § 17C-

16-9 violation is a jailable offense is irrelevant for purposes

of the application of qualified immunity.

      Pegg attempts to distinguish Atwater by arguing that unlike

the Texas seatbelt statute at issue in that case, § 17C-16-9 is

not an offense subject to a custodial arrest or punishable by

incarceration.           He argues that § 17C-16-9 is not among the list

      3 “Request No. 1: Admit that on August 4, 2013, at
approximately 11:30 a.m., you were operating a vehicle that had
an expired inspection sticker. Response: Admitted.” J.A. 101.



                                               8
of    traffic    offenses         that    a      separate          statute,      §     17C-19-3,

enumerates as warranting arrest.                   But that contention –- even if

a correct recitation of state law –- is of no consequence under

Atwater for Fourth Amendment qualified immunity purposes.                                 Id.

       In any event, under West Virginia law, police officers have

the authority to effect an arrest for minor traffic violations,

including the one at issue here.                        The language of § 17C-19-3

does not support the reading of the statute that Pegg advances.

See § 17C-19-3 (prescribing arrest for traffic violations in

“any of the following cases,” not in “only the following cases”)

(emphasis      added).       Similarly,           the    statute         that    controls       the

procedure for issuing traffic citations, § 17C-19-4, does not

prohibit an officer from making an arrest instead of issuing a

citation.       That these two provisions do not prohibit an officer

from making arrests for certain minor offenses is supported by

yet    another        West   Virginia         statute          pertaining         to     traffic

regulations,      §    17C-19-5,         which     provides         that    “the       procedure

prescribed [in Chapter 17] shall not otherwise be exclusive of

any    other     method      prescribed           by     law       for     the    arrest        and

prosecution of a person for an offense of like grade.”                                      Such

alternative      method      is     described           in     §    15-2-12(b)(1),         which

empowers      West     Virginia      State        Troopers         to     make       warrantless

arrests when witness to “any offense or crime” (emphasis added).

As    noted    earlier,      Pegg    does     not       deny       that    his       offense    of

                                              9
operating a motor vehicle with an expired inspection sticker

occurred in the presence of Herrnberger.                            As a result, under

Atwater and the West Virginia statutes, Herrnberger had probable

cause       to    arrest     Pegg      for    the    expired        inspection        sticker

violation.

        The       district       court’s      determination            that      Herrnberger

arrested Pegg “in practicality” for assault and obstruction of

justice,         instead    of   the     expired    inspection          sticker,      is    also

ultimately        irrelevant.          J.A.   375.         The    proper      focus    of   the

inquiry is not any subjective reason for arresting Pegg, but

only the objective facts surrounding the arrest.                           As the Supreme

Court       has    previously       explained,       the    “subjective         reason      for

making the arrest need not be the criminal offense as to which

the known facts provide probable cause.”                          Devenpeck v. Alford,

543     U.S.      146,     153   (2004).       Instead,          the    Fourth     Amendment

requires an analysis under which a police officer’s action is

not     invalidated          “‘as      long    as    the         circumstances,        viewed

objectively,         justify      that     action.’”         Id.       (quoting    Whren      v.

United States, 517 U.S. 806, 813 (1996)) (emphasis added).                                   The

objective and undisputed fact of Pegg’s violation of § 17C-16-9

is fully sufficient, in and of itself, to justify his arrest. 4


        4
       Pegg’s violation of § 17C-16-9 established probable cause
for his arrest and a search incident to that arrest.
Accordingly, we need not consider whether Herrnberger’s actions
(Continued)
                                              10
Thus, Herrnberger did not violate the Fourth Amendment and he is

entitled to qualified immunity on this claim as a matter of law.

The district court erred in failing to grant summary judgment to

Herrnberger on Pegg’s claim of unlawful arrest.

           B.     Qualified Immunity for Retaliatory Arrest

      The probable cause inherent in Pegg’s violation of § 17C-

16-9 also defeats his First Amendment retaliatory arrest claim.

The Supreme Court “has never recognized a First Amendment right

to   be   free   from   a     retaliatory      arrest   that   is   supported   by

probable cause.”         Reichle v. Howards, 132 S. Ct. 2088, 2093

(2012).     Since the Reichle decision, no such right has been

recognized, so the Reichle principle is fully controlling here.

Pegg’s violation of § 17C-16-9 gave Herrnberger probable cause

to arrest Pegg; therefore his arrest was not retaliatory.

      Contrary    to    the    district    court’s      conclusion,   it   is   not

enough, that Pegg “simply plead ‘an absence of probable cause’”

for his claim to survive summary judgment.                 J.A. at 377 (citing

Tobey v. Jones, 706 F. 3d 379, 392 (4th Cir. 2013)).                   The basis

for that rule is the assumption that “‘probable cause or its



were also permitted under Terry v. Ohio, 392 U.S. 1 (1968). See
United States v. Robinson, 414 U.S. 218, 235 (1973) (“A
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under U.S. Const. amend. IV; that intrusion
being lawful, a search incident to the arrest requires no
additional justification.”).



                                          11
absence will be at least an evidentiary issue in practically all

cases.’”       Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013)

(quoting Hartman v. Moore, 547 U.S. 250, 265 (2006)).                          But in

distinction from the appeal in Tobey from the denial of a motion

to dismiss, the instant case is a decision on summary judgment.

This case is not one where probable cause remains an evidentiary

issue; it is undisputed that Pegg violated § 17C-16-9 in the

arresting officer’s presence, thereby establishing the probable

cause for his arrest.            Herrnberger is thus entitled to qualified

immunity on this claim as well and the district court erred in

not granting his motion for summary judgment.

               C.       Qualified Immunity for Excessive Force

     The      district       court    concluded     that    Herrnberger    was    not

entitled to qualified immunity for Pegg’s claim of excessive

force    on    the      basis    of    its    finding      that   Herrnberger     was

“potentially        .    .   .   pre-disposed      to   using     force   to   arrest

[Pegg].”      Herrnberger denies any such subjective predisposition,

but argues again that any subjective motivations in the mind of

the police officer do not factor into the qualified immunity

analysis.      We again agree with Herrnberger.

        An inquiry into any predisposition for force on the part

of Herrnberger is an improper mode of analysis for a Fourth

Amendment excessive force claim.                  “Subjective factors involving



                                             12
the    officer’s       motives,        intent,        or     propensities          are    not

relevant.”      Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).

       To    determine      whether    a     police       officer    applied      excessive

force in violation of the Fourth Amendment, we instead examine

officers’      actions      “in   light      of     the     facts    and    circumstances

confronting them, without regard to their underlying intent or

motivation.”           Graham     v.    Connor,       490    U.S.    386,    397    (1989).

Specifically, we examine “the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.”                             Id. at 396.

As when examining the lawfulness of an arrest, “[w]hether an

officer has used excessive force is analyzed under a standard of

objective reasonableness.”              Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011).

       Though    Pegg’s      crime     was    not     severe,       he   admits    that    he

resisted arrest. 5        We conclude Herrnberger applied no more force

than       necessary   to    overcome        that     resistance.           Viewing       the

evidence in the light most favorable to Pegg, after Pegg placed

his left hand behind his back he failed to interlock his hands

as Herrnberger had just demonstrated to him seconds earlier.

       5“Request No. 6: Admit that you resisted Trooper
Herrnberger’s attempt to secure your hands behind your back.
Response: Admitted.” J.A. 101.



                                             13
Pegg then attempted to withdraw his right arm from Herrnberger's

grasp.          Herrnberger then briskly, but safely, took Pegg to the

ground.          Pegg remained on the ground for less than a minute and

no    longer          than   the     time    Herrnberger           needed        to   handcuff       him.

According to Pegg’s own statements, Herrnberger did not strike,

kick, or verbally abuse him.                           Instead, Herrnberger performed a

simple maneuver               to    ensure       Pegg’s       compliance.             Once    Pegg    was

handcuffed,            Herrnberger          assisted           Pegg       back    to     a    standing

position and refrained from any further physical contact.                                            As a

result of the encounter, Pegg claims abrasions minor enough that

he treated them at home with Neosporin and peroxide and did not

seek       medical       assistance.              An    efficient,         lawful      arrest        of    a

resisting         suspect          that    causes       the    suspect      to    suffer       only       de

minimis          injuries           does         not        constitute       excessive           force.

Herrnberger’s            actions          were    objectively           reasonable       and     he       is

entitled to qualified immunity as a result.                                  The district court

erred in holding to the contrary.

      D.        Qualified Immunity for West Virginia State Law Claims

       Pegg’s          complaint          also     alleged         West    Virginia          state    law

claims          for    battery        and    outrage          (intentional            infliction          of

emotional distress) against Herrnberger.                                   Under West Virginia

law, a police officer is not entitled to qualified immunity when

his        or     her        conduct        results           in    a      clearly       established

constitutional or statutory violation.                                  See Hutchinson v. City

                                                       14
of Huntington, 479 S.E.2d 649, 659 (W. Va. 1996).                                     A police

officer is also not entitled to qualified immunity under West

Virginia law if his or her conduct is “fraudulent, malicious, or

otherwise oppressive.”             Id.

                                       1.        Battery

     Battery under West Virginia law tracks the elements set

forth    in    the   Restatement          (Second)      of     Torts:          an   individual

commits battery when “(a) he acts intending to cause a harmful

or offensive contact with the person of the other or a third

person, or an imminent apprehension of such a contact, and (b) a

harmful       contact      with    the      person      of    the    other       directly    or

indirectly results.”              W. Va. Fire & Cas. v. Stanley, 602 S.E.2d

483, 494 (W. Va. 2004) (quoting the Restatement).                                     Moreover,

lawful    arrests       are    excluded      from     the     scope       of   West   Virginia

battery.       A person lawfully performing an arrest is afforded a

privilege       to   engage       in     arrests      within        the    limit      of   their

jurisdiction,        so       long     as     the       force       is     not      excessive.

Restatement (Second) at § 118; 132.

     Relying on its analysis of the claims for unlawful arrest

and excessive force, the district court held that a reasonable

trier of fact could conclude “the force [Herrnberger] used was

unreasonable in the instant case.”                           J.A. 383.         As should be

evident       from   our      analysis      of    the    foregoing         federal     claims,

Herrnberger did not apply excessive force when arresting Pegg.

                                                 15
Accordingly,        his    contact    with      Pegg   would      be    privileged      for

qualified immunity purposes so long as it was not fraudulent,

malicious,     or    otherwise       oppressive.         Pegg     has    made     no   such

argument and there is nothing in the record that would allow a

conclusion that Herrnberger’s alleged actions were malicious or

oppressive.               Herrnberger      remained        calm        throughout      the

interaction and applied no more force than necessary to effect a

lawful arrest.            Moreover, that force was momentary and slight.

Herrnberger is thus entitled to qualified immunity on this claim

as well.      The district court erred in finding otherwise.

  2.     Outrage, or Intentional Infliction of Emotional Distress

       Pegg    argued,        and    the     district       court        agreed,       that

Herrnberger effected an unlawful arrest with excessive force,

which Pegg characterized as a violation of the special trust

society bestows upon law enforcement officers egregious enough

to support an outrage claim.                  Herrnberger responded that the

arrest was lawful and performed with only the necessary force

and    therefore      cannot    form    the      basis    of    an      outrage    claim.

Herrnberger is correct.

       Under West Virginia law, to establish the tort of outrage,

more    commonly      known    as    intentional         infliction       of    emotional

distress, the plaintiff must establish four elements:

       (1)    that the defendant’s conduct was atrocious,
              intolerable, and so extreme and outrageous as to
              exceed the bounds of decency;

                                           16
      (2)    that the defendant acted with the intent to
             inflict emotional distress, or acted recklessly
             when it was certain or substantially certain
             emotional distress would result from his conduct;

      (3)    that the actions of the defendant caused                         the
             plaintiff to suffer emotional distress and;

      (4)    that the emotional distress suffered by the
             plaintiff was so severe that no reasonable person
             could be expected to endure it.

Loudin v. Nat’l Liab. & Fire Ins., 716 S.E.2d 696, 705 (W. Va.

2011).

      It    is    difficult    to     overstate      the    high    burden    of    proof

required to sustain a tort claim for intentional infliction of

emotional        distress/outrage.           West    Virginia      courts    only    find

liability for outrage “‘where the conduct has been so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.’                       This is a high

standard indeed.”           Keyes v. Keyes, 392 S.E.2d 693, 696 (W. Va.

1990) (quoting Harless v. First Nat’l Bank, 289 S.E.2d 692, 703–

04, n. 20 (W. Va. 1982)).

      Viewed objectively and in the light most favorable to Pegg,

his   outrage      claim    does    not   come      close   to   meeting     the    legal

threshold.        Herrnberger’s conduct does not rise to the level of

battery,     much    less     clear    the    much     higher      bar   required     for

outrage.     A lawful arrest performed without excessive force is,

at worst, conduct that is “merely annoying, harmful of one’s


                                           17
rights or expectations, uncivil, mean-spirited, or negligent.”

Courtney v. Courtney, 413 S.E.2d 418, 423 (W. Va. 1991), rev’d

on other grounds, Courtney v. Courtney, 437 S.E.2d 436 (W. Va.

1993)).       Herrnberger’s arrest of Pegg was lawful and without

excessive force and does not “constitute outrageous conduct.”

Id.     The facts of this case are markedly milder than the kind of

conduct courts applying West Virginia law have found necessary

to    support    an    intentional   infliction       of   emotional       distress

claim.    See, e.g., Heldreth v. Marrs, 425 S.E.2d 157, 161–62 (W.

Va. 1992) (allowing an outrage claim to proceed when a husband

suffered a heart attack after witnessing his wife get struck by

a car and die); Hutchinson v. W. Virginia State Police, 731 F.

Supp.    2d     521,   531   (S.D.   W.    Va.    2010)    (finding    a    legally

cognizable claim for outrage for a female suspect who was pulled

from the shower by the hair during the execution of a search

warrant and forced to lie down naked for at least 45 minutes in

the presence of eleven male law enforcement officers, one of

whom slapped her behind) aff’d sub nom. Hutchinson v. Lemmon,

436 F. App’x 210 (4th Cir. 2011).                But see Keyes, 392 S.E.2d at

694 (disallowing an outrage claim when a family excluded a son

from his father’s obituary, burial plans, and the car ride to

the funeral); Lee v. City of S. Charleston, 668 F. Supp. 2d 763,

779 (S.D. W. Va. 2009) (disallowing outrage claim based on a

roadside public strip search that exposed arrestee’s genitals to

                                          18
the arresting officer); Lowe v. Spears, 2009 WL 1393860, at * 6

(S.D. W. Va. May 15, 2009) (disallowing outrage claim when an

officer arrested an individual for a minor offense, possibly in

response to arrestee’s use of profanity toward the officer).

       Herrnberger is entitled to qualified immunity on this claim

and the district court erred in concluding otherwise.



                          III. Conclusion

       For the foregoing reasons, we reverse the district court’s

order denying Herrnberger’s motion for summary judgment.    He was

entitled to qualified immunity for all claims as a matter of

law.    The case is therefore remanded to the district court for

the entry of judgment in favor of Herrnberger on all claims.



                                             REVERSED AND REMANDED
                                                 WITH INSTRUCTIONS




                                 19
