                                UNPUBLISHED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Remanded by unpublished opinion.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.
Stefanie A. Smith, EKSTRAND    &   EKSTRAND,   LLP,   Durham,   North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                   2
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

                                            3
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.



                                                   4
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.



                                             5
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

                                               6
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



                                             7
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

                                                   8
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).



                                                 9
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

                                           10
           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


                                          11
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

                                               12
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

                                                  13
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

                                               14
immediately appealable.          We therefore dismiss the appeal for

lack   of   jurisdiction   and    remand    to   the   district   court   for

further proceedings.

                                                                   REMANDED




                                       15
