                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-2016


PEGGY RUSS; TAFFY GAUSE,

                Plaintiffs - Appellees,

           v.

SID CAUSEY; ED MCMAHON; LACHLAN MACNEISH; DOUG PRICE; ERIC
BROWN; VERNON JORDAN; OHIO CASUALTY INSURANCE COMPANY;
BRANDON MATT JORDAN,

                Defendants - Appellants.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
Chief District Judge. (7:09-cv-00017-FL)


Argued:   October 26, 2011            Decided:   February 24, 2012


Before KING, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished opinion.      Judge Gregory wrote the
majority opinion, in which Judge Wynn joined. Judge King wrote
a dissenting opinion.


ARGUED: James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC, Winston-Salem, North Carolina, for Appellants.    Matthew
William Buckmiller, SHIPMAN & WRIGHT, LLP, Wilmington, North
Carolina, for Appellees.    ON BRIEF: Bradley O. Wood, Julie B.
Bradburn, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem,
North Carolina, for Appellants.     Gary K. Shipman, SHIPMAN &
WRIGHT, LLP, Wilmington, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                  2
GREGORY, Circuit Judge:

      In    this     case,    Plaintiffs-Appellees              Peggy   Russ    and   Taffy

Gause asserted a number of claims for relief against the former

sheriff of New Hanover County, Sid Causey, and a number of his

deputies        in   both    their       individual       and    official      capacities.

Their claims are premised on the defendants’ conduct during the

arrest     of    their      son    and   brother,        respectively,      Gladwyn   Taft

Russ, III (“GT Russ III”) 1 at the funeral of their husband and

father, Gladwyn Taft Russ Jr. (“GT Russ Jr.”).                            Specifically,

Russ and Gause alleged (1) deprivation of their Fourth Amendment

right to privacy in violation of 42 U.S.C. §                       1983, (2) assault;

(3) intentional infliction of emotional distress, (4) negligent

infliction of emotional distress, (5) invasion of privacy, and

(6)   negligence.            The    defendants          asserted    various      defenses,

including governmental immunity and public officer’s immunity,

and moved for summary judgment.                 On August 5, 2010, the district

court granted in part and denied in part the defendants’ motion

for summary judgment.

      At    issue     on     appeal      is   the       district   court’s      denial   of

defendants Eric Brown, B. Matt Jordan, and Doug Price’s motion

for summary judgment as to the Plaintiffs-Appellees’ state law


      1
          GT Russ III is not a party to this action.




                                                    3
claims       for        intentional         infliction         of    emotional      distress,

negligent infliction of emotional distress, and negligence.                                 In

addition       to       allowing       these    claims         to    proceed    against    the

defendants         in    their     official     capacities, 2         the   district      court

allowed       these       claims       to    proceed       against      defendants     Brown,

Jordan,       and       Price     in    their       individual        capacities,      denying

defendants’         affirmative        defense       of    public     officer’s     immunity.

Defendants argue that the district court erred in concluding

that       Brown,       Jordan,    and      Price    were      not    entitled    to   public

officer’s       immunity          as   a    matter        of   law    because    Plaintiffs-

Appellees failed to produce evidence that the deputies’ actions

were corrupt, malicious, or outside the scope of their official

duties.        We disagree.                Because Plaintiffs-Appellees have put

forth facts sufficient to create a genuine issue of material

fact as to whether the officers acted with malice, an exception


       2
       As to the claims against the defendants in their official
capacities -- which are in fact claims against the New Hanover
County Sheriff’s Office –- the district court determined that
the defendants were entitled to governmental immunity for
damages in excess of $25,000 but that the Plaintiffs-Appellees
could   recover   against   the   defendants in   their  official
capacities for intentional infliction of emotional distress,
negligent infliction of emotional distress, and negligence up to
$25,000. Because there is no proper basis for an interlocutory
appeal of the claims against the defendants in their official
capacities,    we   decline    to   exercise  pendant   appellate
jurisdiction over the denial of summary judgment as to these
claims.




                                                     4
to public officer’s immunity, we affirm the denial of summary

judgment. 3



                                        I.

       We begin our analysis with a reconstruction of the events

that transpired and gave rise to these claims.            We then examine

the malice exception to public officer’s immunity as applied to

Plaintiffs-Appellees’ claims.

                                        A.

       On     August   6,   2008,   Glenda    Sellars     swore    out    a

communicating-threats       complaint   against   her   husband,   GT   Russ

III.       A magistrate judge then issued a warrant for his arrest.

Between August 8, 2008, and November 8, 2008, New Hanover County

sheriff’s deputies attempted to serve the warrant on GT Russ III

at his mobile home located directly behind his parents’ home.

On each of these occasions, the deputies were unable to locate




       3
        Thus, although the existence or absence of public
officer’s immunity may be established, where appropriate, as a
matter of law, it is also true that in other cases this issue
presents a question of fact to be resolved by the jury.     See,
e.g., Showalter v. North Carolina Dept. of Crime Control and
Public Safety, 183 N.C. App. 132, 137, 643 S.E.2d 649, 652
(2007) (affirming denial of summary judgment because of open
genuine issues of material fact in relation to officer’s alleged
malice precluded judgment as a matter of law on the basis of
public officer’s immunity).




                                        5
GT Russ III or otherwise serve the warrant.             Russ, the mother of

GT Russ III, personally saw sheriff’s deputies attempt to serve

the warrant three times and informed the deputies that GT Russ

III and Sellars had reconciled and were in Tennessee and that

Sellars wanted to withdraw her complaint and drop the charges

against GT Russ III.

     On November 1, 2008, GT Russ III returned to North Carolina

to   be    with   his    father,    GT   Russ   Jr.,     whose     health    was

deteriorating rapidly.        Upon his return, GT Russ III did not

attempt to surrender or turn himself in, nor did Russ inform

anyone from the sheriff’s office that GT Russ III was back in

town.     Plaintiffs-Appellees and GT Russ III appeared to believe

-–   incorrectly    --    that     the   criminal      complaint    had     been

withdrawn, and they were otherwise preoccupied with the failing

health of GT Russ Jr.

     On November 8, 2008, the sheriff’s office responded to a

9-1-1 call from GT Russ III’s son, who stated that his father

had slashed the tires and smashed the windows of his car and

locked himself inside the house of Russ.               Deputy Gonzalez, who

had previously attempted to serve the arrest warrant on GT Russ

III on a number of occasions, was the first to arrive on the

scene.    He verified the property damage and hoped to be able to

serve the arrest warrant on GT Russ III.                 GT Russ III’s son

advised Deputy Gonzalez that GT Russ III was alone in the house

                                         6
and that he had access to firearms.               Deputy Gonzalez radioed for

backup.

     After backup arrived, Deputy Gonzalez knocked on the door

of the house and demanded that GT Russ III surrender to him, but

GT Russ III refused to do so.                Plaintiffs-Appellees arrived on

the scene but were directed to stay away from the house.                    Russ

gave the deputies the keys to her house so that they could enter

and arrest GT Russ III.            Chief Deputy Sheriff Ed McMahon, who

was second in command at the time (now Sheriff of New Hanover

County), came to the house and spoke with GT Russ III over the

telephone.    GT Russ III informed McMahon that he had returned to

North    Carolina   to   be     with   his    father   during   surgery    to   be

performed on November 10, 2008.              McMahon verified this with the

Plaintiffs-Appellees and other family members, who also informed

him that Sellars was not in North Carolina at the time.                    After

speaking    with    GT   Russ    III   and    Plaintiffs-Appellees,       McMahon

agreed to allow GT Russ III to turn himself in following his

father’s surgery.        The deputies left the scene and Russ, Gause,

and GT Russ III went to GT Russ Jr.’s bedside at the hospital.

        GT Russ III did not turn himself in on November 10, 2008.

On that day, GT Russ Jr.’s condition worsened and on November

11, 2008, he died.        Deputy Gonzalez arrived at Russ’s house on

November 11, 2008, seeking to serve the warrant on GT Russ III.

During his visit, Russ notified the deputy that her husband had

                                              7
died and asked the deputy to notify Chief Deputy McMahon of that

fact.      On    Wednesday,   November   12,   or   Thursday,    November    13,

2008, Russ and GT Russ III spoke with McMahon.                   During those

conversations both notified him that GT Russ Jr. had died and

that the family was busy making funeral arrangements for GT Russ

Jr., who was to be buried with military honors.                 McMahon agreed

to allow GT Russ III to turn himself in after his father’s

funeral.        McMahon recounted his conversation with Russ where he

admits agreeing to have GT Russ III turn himself in after the

funeral:

     Q: Do you remember saying, “Okay, that is fine”?                What
        did you say in response to that?

     A: I am sure I said, “Okay.”

Consistent with that discussion, no efforts were made by the

sheriff’s office to serve the warrant or to contact GT Russ III

about     the      warrant.      Further,      sheriff’s    deputies        were

specifically instructed not to go back to the house.

     However, on November 13, 2008, McMahon and other senior law

enforcement officers in the sheriff’s office, worried that GT

Russ III would not turn himself in, decided that their best

chance to serve the arrest warrant would be to do so after the

funeral service, which they were confident GT Russ III would

attend.     McMahon, after speaking with Causey, authorized the

arrest of GT Russ III at some point after the funeral, to be



                                          8
carried out as discretely and quickly as possible, but left the

details of the arrest plan to Price.                             Price created the Incident

Action Plan that details the arrest plan.                                  Deputies Brown and

Jordan were to wear plain clothes as they approached GT Russ III

and arrest him in the parking lot of Andrews Valley Mortuary

immediately          following        his      father’s          funeral        service.      Price

relayed this plan to McMahon.

      The funeral of GT Russ Jr. was set for November 15, 2008,

and   it    was      intended       to    be     a    private       ceremony.         Plaintiffs-

Appellees and GT Russ III went to the mortuary early in the

morning         together       to     ensure          everything          was     being    set    up

appropriately for the service.                         GT Russ III drove his truck to

the funeral service at Andrews Valley Mortuary.                                      The service

began      at    1:00   or     2:00       p.m.       with    family    members       and   friends

paying their respects to GT Russ Jr. and the Russ family.

      Prior to the funeral service, Brown and Jordan, who were

wearing civilian suits and ties, drove to an adjacent animal

hospital        to   observe        the     funeral         home    and    then     parked    their

unmarked car in an empty parking space in the funeral home’s

parking lot once all of the funeral attendees had gone inside.

No one from the sheriff’s office had notified Andrews Valley

Mortuary        that    they    would       attempt         to     serve    a    warrant     at   the

funeral service.



                                                        9
      After    the    service    concluded,    Plaintiffs-Appellees      exited

the funeral home through the front entrance and went into the

limousine.     The parties differ as to exactly what happened after

GT Russ III exited the funeral home at the conclusion of the

service,      although     their    versions     of    events   do     overlap.

Accepting Plaintiffs-Appellees’ version as true where there are

differences, the arrest occurred as follows:                GT Russ III was

the pallbearer for his father’s casket and the casket went out

the side door of the mortuary where the hearse was parked under

the carport.         Ronald Simmons was also a pallbearer on the left

side with GT Russ III and John Hoy from Andrews Valley Mortuary

was   assisting      the   pallbearers   in    the    transportation    of   the

casket.    As GT Russ III was putting his father’s casket into the

hearse, two gentlemen in suits and ties approached.                  Price had

given permission for Deputies Brown and Jordan to approach the

funeral at this time.           Ronald Simmons was an arm’s length away

from GT Russ III and initially thought that the men were friends

or family that had attended the funeral.

      Brown then violently grabbed GT Russ III and threw him up

against the hearse.          Deputy Brown never identified himself as

law enforcement nor did he inform GT Russ III that he was under

arrest.    GT Russ III broke loose from Brown, not knowing who he

was, and Hoy and Simmons thought they were criminals attacking

GT Russ III.

                                         10
      As Plaintiffs-Appellees were seated in the limo they heard

a loud noise from GT Russ III being thrown against the hearse

and   a   lot     of    screaming.       They    went      over    to   the    commotion

surrounding the hearse.               During the scuffle with GT Russ III,

Brown’s back-up firearm had become dislodged and had fallen to

the pavement.           In an attempt to control the crowd, defendant

Jordan drew his Taser, which to Plaintiffs-Appellees appeared to

be a firearm.           Neither defendant Jordan nor defendant Brown had

identified themselves at this point.                       When asked by Russ and

Gause     who    they    were   and   what    they    were    doing,     the    deputies

refused      to    identify       themselves         and    threatened         to   shoot

bystanders.        Plaintiffs-Appellees contend that during this time

the deputies were waving their Tasers wildly at the attendees

and pointing them at Plaintiffs-Appellees faces as they stood a

few feet away.           Brown then employed his Taser against GT Russ

III in order to subdue him.                  Plaintiffs-Appellees allege that

during     all    this     time    neither      Brown      nor     Jordan     identified

themselves and that they and others at the funeral feared for

their lives.

      At some point during the arrest of GT Russ III, Brown and

Jordan radioed for assistance.                  Price and another deputy, who

had   been      maintaining       positions     around       the    funeral     home   to

prevent escape, responded and arrived at the scene at about the

time GT Russ III was placed in handcuffs.                     After seeing GT Russ

                                                11
III handcuffed, attendees understood that these individuals were

law    enforcement        officers.        The    attendees         wanted    answers      from

Price as to why this happened, to which he responded that he

would take everyone to jail if they did not calm down.                                    It is

further     alleged       that     Price    was     rude      during      this    discussion,

further      exacerbating        the   situation.              Eventually,         Brown    and

Jordan transported GT Russ III to New Hanover County Detention

Center.

       It    took     Andrews       Valley        Mortuary        approximately          thirty

minutes     to     restore    order    to     the       service     and    many    people    in

attendance did not continue to the cemetery for the burial.                                 The

Plaintiffs-Appellees went to the cemetery in shock.                                    The next

day,   or    shortly      thereafter,        Russ       and   her    family      requested    a

meeting with McMahon where McMahon apologized and indicated that

there was a miscommunication and that the arrest was supposed to

have occurred after the burial.                     The law enforcement officers

involved      in    the    arrest      were       orally      reprimanded         by    Sheriff

Causey.

       The events at the funeral were “the most horrible thing”

Russ   has    ever     gone      through     and     neither        she    nor    Gause    have

received      closure        for     their        husband       and       father’s       death.

Consistent         with      Plaintiffs-Appellees’                  experience,         funeral

attendees were mortified and shocked by what happened.



                                                   12
                                             B.

        Brown, Jordan, and Price are public officers shielded from

personal    liability      under     North   Carolina’s   doctrine    of   public

officer’s immunity unless it is alleged and proved that their

actions, or lack thereof, were of a nature that pierces the

cloak of this immunity. 4             Accordingly, in order to sustain a

personal or individual capacity suit against Brown, Jordan, and

Price     for   the    state   law    claims,     Plaintiffs-Appellees        “must

initially       make   a   prima     facie   showing   that   the     defendant-

official’s tortuous conduct falls within one of the immunity

exceptions.”       Trantham v. Lane, 488 S.E.2d 625, 627 (N.C.App.

1997).

      As a preliminary matter, defendants assert that Plaintiffs-

Appellees’ claims for negligent infliction of emotional distress

and     negligence     are,    by    their   very   definition,      claims    for


      4
        It is well established that federal courts, when
interpreting North Carolina law, “must rule as the North
Carolina courts would, treating decisions of the Supreme Court
of North Carolina as binding . . . .” Iodice v. United States,
289 F.3d 270, 275 (4th Cir. 2002).         Consistent with this
deference to state law, holdings by the North Carolina Court of
Appeals on a point of North Carolina law are “not to be
disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would decide
otherwise.”   West v. Amer. Tel. & Tel. Co., 311 U.S. 223, 237
(1940); see also Comm’r of Internal Revenue v. Bosch, 387 U.S.
456, 465 (1967); Sanderson v. Rice, 777 F. 2d 902, 905 (4th Cir.
1985), cert. den., 475 U.S. 1027 (1986).




                                             13
negligence      and     because        public    officers       may     not     be     held

personally liable for negligence, the officers are entitled to

public officer’s immunity as to these claims.

       In support of this proposition, defendants’ cite to this

Court’s holding in Shaw v. Stroud that a “negligent infliction

of emotional distress claim, by its very definition, necessarily

alleges     only      negligence.         Therefore,      [the        defendant       state

trooper]       [wa]s    absolutely        immune       [individually]          from     any

negligent      infliction      of   emotional        distress   claim        under    North

Carolina law.”         Shaw v. Stroud, 13 F.3d 791, 803 (4th Cir. 1994)

(rejecting plaintiff’s claim that gross negligence is sufficient

to   pierce    public       official     immunity).       In    Shaw,    however,       the

plaintiff was arguing that gross negligence was sufficient to

pierce    an   officer’s      immunity.         There    were    no    allegations       of

malicious or corrupt actions or actions beyond the scope of the

officer’s duties, exceptions to public officer’s immunity that

this   Court     in    Shaw    explicitly       acknowledged.           Id.       (“While

intentional,       malicious,       or     corrupt      actions       may     pierce    an

officer’s immunity, the North Carolina Supreme Court has never

allowed a showing of gross negligence to suffice to pierce an

officer’s immunity . . . .”).              Further, the North Carolina Court

of Appeals has explicitly held that negligence actions can be

maintained      if,    in    addition     to    the   elements    of     a    negligence

claim, plaintiffs allege and prove that the officer’s actions

                                                14
were corrupt or malicious or beyond the scope of the officer’s

duties:

      While   we   recognize   that  generally,   claims   of
      negligence can not be maintained against public
      officials in their individual capacity, these actions
      may be maintained, if plaintiffs bring forth evidence
      sufficient to ‘pierce the cloak of official immunity.’

Prior v. Pruett, 550 S.E.2d 166, 171 (N.C.App. 2001) (emphasis

added); see also, Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C.

App. 2000) (quoting Slade v. Vernon, 429 S.E.2d 744, 747 (N.C.

App. 1993)) (“Under the public officers’ immunity doctrine, ‘a

public official is [generally] immune from personal liability

for mere negligence in the performance of his duties, but he is

not shielded from liability if his alleged actions were corrupt

or malicious or if he acted outside and beyond the scope of his

duties’.”).       It is not the elements of the claim that determine

whether     a    public    official     is    entitled       to   public    officer’s

immunity.         Rather,     it   is    whether       the    facts    alleged     are

sufficient to pierce the cloak of immunity, so as to strip the

official    of    that     immunity     and    allow    plaintiffs     to    sue   the

official “as if the suit had been brought against ‘any private

individual.’”      Id.

      Under North Carolina law, it is clearly established that

“where a defendant performs discretionary acts as part of his or

her   official     or     governmental       duties,   to    sustain   a    suit   for

personal or individual liability, a plaintiff must allege and

                                              15
prove    that    the       defendant’s           acts     were      malicious          or    corrupt.”

Schlossberg      v.    Goins,       540      S.E.2d          49    (N.C.App.       2000)       (citing

Wilkins v. Burton, 16 S.E.2d 406, 407 (N.C. 1941)).                                     Here, it is

undisputed that Brown, Jordan, and Price were on duty during the

afternoon of November 15.                   “Moreover the decisions made by [the

officers] in attempting to restrain and arrest [an individual]

were     discretionary            decisions             made       during       the         course    of

performing        their          official          duties          as     public            officers.”

Schlossberg,       540      S.E.2d      at       540.         Because       the    deputies          were

engaged in discretionary acts as part of their official duties

and     Plaintiffs-Appellees                do    not        allege      that     the        deputies’

actions were corrupt, the only relevant question for purposes of

the public officer’s immunity analysis is whether Plaintiffs-

Appellees       have       put    forth      sufficient            evidence        of       malice    to

survive summary judgment.

       The district court found that the plaintiffs “put forward

sufficient       evidence         of    extreme          and       outrageous          conduct       and

reckless     indifference”             to    support           a   showing        of    malice       and

overcome    the       defense      of       public       officer’s          immunity.           It    is

presumed    that       a    public      official             in    the   performance           of    his

official duties “acts fairly, impartially, and in good faith and

in the exercise of sound judgment or discretion, for the purpose

of     promoting       the       public          good     and      protecting           the     public

interest.”       Greene v. Town of Valdese, 291 S.E.2d 630, 632 (N.C.

                                                        16
1982) (citations omitted).                  “Thus, to overcome the presumption

of good faith in favor of a public official, the burden is on

the    plaintiff      to    offer     a    sufficient          forecast    of     evidence   to

establish . . . the public officials’ actions were malicious.

. . .”       Crocker v. Griffin, No. COA09-1000, 2010 WL 1961258 at

*6 (N.C.App. May 18, 2010).

       Acts of malice are one exception to the doctrine of public

officer’s immunity, a doctrine where “public officials cannot be

held individually liable for damages caused by mere negligence

in     the    performance        of     their         governmental      or      discretionary

duties.”       Meyer v. Walls, 489 S.E.2d 880, 889 (N.C. 1997).                              “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.”       In re Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984).

The Supreme Court of North Carolina explained that “[a]n act is

wanton       when    it     is   done       of    wicked        purpose,     or    when   done

needlessly, manifesting a reckless indifference to the rights of

others.”       Id. at 890-91 (quoting Givens v. Sellers, 159 S.E.2d

530,    535    (N.C.       1968)).         When       the    definition    of     “wanton”   is

grafted       into   the     definition          of    “malice,”    Grad     establishes      a

three pronged framework providing that malice, for the purposes

of    piercing       the    cloak     of    public          officer’s   immunity,     may    be

demonstrated by conduct: (1) “when done needlessly, manifesting

                                                      17
a reckless indifference to the rights of others,” 321 S.E.2d at

890-91; (2) “which a [person] of reasonable intelligence would

know to be contrary to [their] duty,” id. at 90 and (3) “which

[is] intend[ed] to be prejudicial or injurious to another.”                     Id.

      Regarding the first prong, we agree with the district court

that Plaintiffs-Appellees put forth sufficient evidence that the

officers needlessly engaged in conduct, manifesting a reckless

indifference to the rights of others.                 Our conclusion is based

on the Plaintiffs-Appellees’ evidence of the following conduct

of Brown, Jordan, and Price:            Brown and Jordan grabbed GT Russ

III during his father’s funeral while GT Russ III was putting

the   casket   into   the    hearse;    the    deputies     failed   to   identify

themselves     as   police   officers;       Jordan   threatened     to   use    his

Taser on elderly and particularly emotional bystanders attending

the funeral; Price planned the arrest and threatened to arrest

other funeral attendees who sought explanation; and the officers

and their supervisors were brutish and bullying toward grieving

family and friends.

      Further,      Plaintiffs-Appellees          have    presented       evidence

sufficient to show that the actions of Brown, Jordan, and Price

were actions an officer “of reasonable intelligence would know

to be contrary to his duty.”             Grad, 321 S.E.2d at 890.           Brown

and   Jordan   passed   a    Basic     Law    Enforcement    Training     (“BLET”)

course and exam, which provides the “minimum standards” for law

                                             18
enforcement officers in the state of North Carolina.                   The BLET

course discussed the proper procedure for arresting individuals.

The policies are listed as follows:             “(1) Identify Self as an

officer, (2) Inform suspect he or she is ‘under arrest’ and (3)

State reason(s) for the arrest.”             This evidence -- when viewed

in the light most favorable to Plaintiffs-Appellees –- makes

clear that defendants failed to follow even one of those basic

rules of law enforcement before effectuating the arrest of GT

Russ III.     In addition, N.C. Gen. Stat § 15A-401(c) supports the

BLET tenets for making an arrest:

     (2) Upon making an arrest, a law-enforcement officer must:

             a. Identify himself as a law-enforcement officer
                unless his identity is otherwise apparent

             b. Inform the arrested person that he is under
                arrest, and

             c. As  promptly   as  is  reasonable under  the
                circumstances, inform the arrested person of
                the cause of the arrest, unless the cause
                appears to be evident.

N.C. Gen. Stat § 15A-401(c).

     Contrary to the dissent’s assertion, the relevant “duty” of

the officers —- rather than a duty to refrain from arresting Mr.

Russ at the funeral home, post at 28 —- was the duty not to

engage in extreme and outrageous conduct intended to cause, and

in   fact    causing,    severe    emotional     distress    to   Plaintiffs-

Appellees.     In this regard, and thus in respect of the second

prong   of   malice,    it   is   relevant    that   the   officers’    alleged
                                         19
conduct occurred during a funeral.                      The Supreme Court of North

Carolina has long recognized that a funeral is a solemn event

that    creates       certain       rights    in    mourners         and    requires        that

special care be taken by third parties.                          Floyd v. Atl. Coast

Line Ry. Co., 83 S.E. 12, 12-13 (N.C. 1914) (“There is a duty

imposed by the universal feelings of mankind to be discharged by

someone toward the dead, a duty, and we may also say a right, to

protect from violation, and a duty on the part of others to

abstain from violation.”); cf. Parker v. Quinn-McGowen Co., 138

S.E.2d 214 (N.C. 1964) (noting that next of kin has a quasi-

property    right      in     a    deceased    body     for    its    burial        and   there

arises out of that right an emotional interest which should be

protected       and        which    others     have      a     duty        not     to     injure

intentionally         or    negligently);       Lamm     v.    Shingleton,          55    S.E.2d

810, 813 (N.C. 1949) (“The tenderest feelings of the human heart

center around the remains of the dead.”).

       Other states, and other courts, have similarly recognized

the    rights    and       protections       afforded     by    law    to        funerals    and

burials.        See, e.g., Holland v. Metalious, 198 A.2d 654, 656

(N.H. 1964) (“The right to ‘decent’ burial is one which has long

been recognized at common law, and in which the public as well

as the individual has an interest”); King v. Elrod, 268 S.W.2d

103, 105 (Tenn. 1953) (“[T]he right to decent burial is well

guarded by the law, and relatives of a deceased are entitled to

                                                   20
insist upon legal protection for any disturbance or violation of

this right.” (citation omitted)); Koerber v. Patek, 102 N.W. 40,

43 (Wis. 1905) (“We can imagine no clearer or dearer right in

the gamut of civil liberty and security than to bury our dead in

peace and unobstructed. . . . [N]one where the law need less

hesitate to impose upon a willful violator responsibility for

the uttermost consequences of his act.”); cf. Snyder v. Phelps

__ U.S. __, __, 131 S.Ct. 1207, 1227-1228 (2011) (Alito, J.,

dissenting)    (explaining     that     “the    emotional      well-being     of

bereaved    relatives    is   particularly       vulnerable”      at   funerals

because intrusions “may permanently stain their memories of the

final moments before a loved one is laid to rest,” and, as a

result, “funerals are unique events at which special protection

against    emotional    assaults   is   in     order”);   Nat’l    Archives    &

Records Admin. v. Favish, 541 U.S. 157, 167-70 (2004) (noting

that “[b]urial rites or their counterparts have been respected

in almost all civilizations from time immemorial,” and further

noting that funerals “are a sign of the respect a society shows

for the deceased and for the surviving family members”). 5



     5
       Indeed, a number of states have gone so far as to create a
special category within the common law tort of negligent
infliction of emotional distress for interference with proper
burials.   See Restatement (Third) Torts § 46 (Tentative Draft
No. 5 2007).



                                         21
     As to the third prong of malice under Grad, Plaintiffs-

Appellees     must     produce     at    least        some     evidence      that     the

defendants        “intend[ed]    to     be     prejudicial         or    injurious     to

another.”     Kaasa, 321 S.E.2d at 890; see Hawkins v. State of

North    Carolina,     453   S.E.2d     233,    242    (N.C.App.        1995).       North

Carolina courts have found summary judgment inappropriate where

there is a genuine issue of fact as to an officer’s state of

mind when engaging in allegedly tortious conduct. 6                          See, e.g.,

Showalter v. N.C. Dept. of Crime Control & Public Safety, 643

S.E.2d      649      (N.C.App.     2007)        (finding           summary       judgment

inappropriate on public officer’s immunity where trooper stated

he did not act maliciously but where trooper’s actions in macing

plaintiff and dragging him from car during traffic stop created

a genuine issue of fact as to whether actions were done with

malice);     Thompson    v.     Town    of     Dallas,       543    S.E.2d    901,    905




     6
       Although allegations of “reckless indifference” in the
complaint may be insufficient to survive a motion to dismiss,
see, e.g., Jones v. Kearns, 462 S.E.2d 245, 248 (N.C. App.
1995), evidence of conduct manifesting a reckless indifference
to the rights of others may in some cases be “substantial
evidence” from which a jury may properly infer specific intent
to injure. See, e.g., State v. Barlowe, 337 N.C. 371, 379, 446
S.E.2d 352, 357 (1994) (“Intent must normally be proved by
circumstantial evidence, and an intent to kill may be inferred
from the nature of the assault, the manner in which it was made,
the conduct of the parties, and other relevant circumstances.”
(quotation marks and alterations omitted)).




                                               22
(N.C.App. 2001) (finding that genuine issue of material fact as

to   whether      officer    acted   with    malice      in     arresting         motorist

precluded summary judgment on punitive damages claim).

        Arguably, the very act of selecting the moment a grieving

son places his father’s casket into a hearse to execute his

arrest in front of his family and innocent third party attendees

demonstrates an intent to injure him, his family, and anyone

else at the funeral grieving the decedent’s death.                                This is

especially        true      where,      as   here,       there     were           numerous

opportunities       to   serve    the    warrant     elsewhere,        the    sheriff’s

office    had    previously      promised    not   to    take    any    action      until

after the funeral, and the officers did not believe there was

any threat necessitating an immediate arrest.                       As Plaintiffs-

Appellees allege, the conduct of Brown, Jordan, and Price is

sufficient to create a genuine issue of fact material to the

issue    of     public   officer’s      immunity,       particularly         as    to   the

officers’ intent in creating and executing the arrest plan.



                                             II.

      For the reasons given above, we affirm the district court’s

denial of summary judgment.

                                                                                  AFFIRMED




                                             23
KING, Circuit Judge, dissenting:

      With the utmost respect for my distinguished colleagues in

the   majority,     I    dissent    from    their   decision          to     permit     the

plaintiffs to attempt to hold the arresting deputies and their

immediate    supervisor         individually      liable        at    trial     for     the

botched arrest at the funeral home.                 No reasonable jury could

conclude     from   the     record     on    summary       judgment          that     these

defendants      acted    with    the   requisite    malice           such    that     their

entitlement to the immunity routinely afforded public officials

under North Carolina law ought to be abrogated.                             Perhaps more

importantly, and no matter the deputies’ subjective intentions

toward GT Russ III (“Mr. Russ”) in taking him into custody,

there is simply no evidentiary basis to deduce that they meant

any harm whatsoever to the plaintiffs.

      The majority’s analysis correctly focuses on the question

of malice; there is no legitimate allegation that, in arresting

Mr. Russ, the deputies were corruptly influenced or undertook an

act   outside    their    job    description.       See     Grad       v.    Kaasa,     321

S.E.2d   888,    890     (N.C.   1984)     (“As   long     as    a    public        officer

lawfully exercises the judgment and discretion with which he is

invested by virtue of his office, keeps within the scope of his

official authority, and acts without malice or corruption, he is

protected from liability.”).               There is likewise no indication

that, in performing their jobs, the deputies lacked probable

                                             24
cause   to    arrest     Mr.        Russ    or    that     they      were    without     legal

entitlement        to   park    at       the     funeral      home    and     traverse      its

grounds.

     The      execution        of     the      arrest     warrant      was     indisputably

tactless and clumsy.                In denying the deputies summary judgment

on   the     individual-capacity             claims,      the      district    court       went

farther, observing that the plaintiffs “put forward sufficient

evidence      of    extreme         and     outrageous          conduct      and    reckless

indifference.”          Russ        v.    Causey,       732   F.     Supp.    2d    589,    613

(E.D.N.C.      2010).           Even        if    one     concurs      in     the    court’s

characterization, the difficulty with its ruling is that neither

“extreme     and    outrageous           conduct”       nor   “reckless       indifference”

equates to malice under North Carolina law.

     “Extreme and outrageous conduct” is an element of a claim

for intentional infliction of emotional distress, but the term

merely describes the necessary predicate act.                               See Johnson v.

Antioch United Holy Church, Inc., 714 S.E.2d 806, 811 (N.C. Ct.

App. 2011) (reciting essential elements of claim as “(1) extreme

and outrageous conduct by the defendant (2) which is intended to

and does in fact cause (3) severe emotional distress” (citation

and internal quotation marks omitted)).                            The conduct alone is

not actionable unless accompanied by a particular mental state,

i.e., the intent to inflict a cognizable psychic injury upon the

plaintiff, with the result that such injury consequently occurs.

                                                   25
     “Reckless indifference,” on the other hand, does describe a

mental   state     —    one   that    is    potentially     actionable        in    many

contexts — but one that falls short of the rigorous threshold

for malice.        Indeed, the North Carolina courts have squarely

held that “[a] plaintiff may not satisfy this burden [of showing

malice   or    corruption]        through     allegations       of   mere     reckless

indifference.”         Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C.

Ct. App. 2000).           A public official “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.”                Grad, 321 S.E.2d at 890

(citation     omitted).       A    “wanton”    act   is   one    “done       of   wicked

purpose,      or   when    done      needlessly,     manifesting         a    reckless

indifference to the rights of others.”                    Id. at 891 (citation

omitted).

     A considered reconciliation of the above excerpts from Grad

reveals that a wanton act, even one tending less toward wicked

and more toward needless (from which a general state of reckless

indifference       might      be      inferred),      is,       standing          alone,

insufficient to establish malice.                  Such an act must also be

objectively contrary to the officer’s duty and target a specific




                                              26
person for detriment. 1         Thus, although the deputies may have

callously and boorishly invaded the solemnity of the funeral

proceedings, it does not follow that their zeal translated into

malice.    It is also not determinative that the deputies may have

contravened    the   prescribed   arrest     procedure    by    neglecting   to

identify themselves prior to engaging Mr. Russ.                  The majority

elevates this technical breach to the violation of a statutory

duty, see ante at 17-18, but even assuming the correctness of

the majority’s position, it was a violation without meaning in

this case.

     The fracas did not occur because the deputies failed to

identify     themselves;   it   occurred     because     Mr.   Russ,   without

cause,    vigorously   resisted    arrest.      The    record    conclusively

establishes that Mr. Russ is, without question, a scofflaw who,




     1
       The majority errs in overemphasizing the initial component
of the Grad framework, making the unjustified logical leap that
“[w]hen the definition of ‘wanton’ is grafted into the
definition of ‘malice,’” ante at 16, the incorporation within
wantonness of an inchoate aura of reckless indifference is
determinative of malice if a police officer is found to have
breached any duty (not necessarily one related to the alleged
injury) and intends to harm or injure any person (not
necessarily the plaintiff).   See id. at 17-22.    The majority’s
approach, in effect, squarely contravenes the admonition in
Schlossberg that the conduct of police officers in the field be
evaluated under the rigorous causal and targeting requirements
accompanying the malice standard, and not under the more
amorphous, less accommodating reckless indifference standard.




                                       27
over the years, has made a habit of evading capture. 2               In this

particular instance, Mr. Russ was well aware that the Sheriff’s

Office possessed a warrant for his arrest.            Five days before the

funeral, Mr. Russ barricaded himself inside his parent’s house

to keep from being arrested, and, two days after that, broke a

promise to turn himself in.          There can be no credible contention

that       Mr.   Russ   did   not   understand   perfectly   well   who   was

accosting him at the funeral home, notwithstanding that he may

not have been personally acquainted with the arresting deputies.

See N.C. Gen. Stat. § 15A-401(c)(2) (disposing of identification

requirement        if   arresting    officer’s   “identity   is     otherwise

apparent”). 3      Furthermore, under the circumstances present here,




       2
       For example, Deputy Mario Gonzalez filed an uncontested
declaration that “Mr. Russ . . . was known within the New
Hanover County Sheriff’s Office to be an elusive individual who
could be very difficult to locate and apprehend . . . .       On
repeated occasions, he had promised me over the telephone that
he would turn himself in, but he invariably failed to do so.”
J.A. 70 (citations herein to “J.A. ___” refer to the contents of
the Joint Appendix filed by the parties to this appeal).
       3
       The plaintiffs’ own witness, Ronald Simmons, submitted an
affidavit that Mr. Russ, prior to being subdued, acknowledged
that the men engaging him were police officers by stating that
“I had permission to turn myself in.”      J.A. 833.    That the
bystanders were momentarily at sea concerning the deputies’
identity is immaterial, as it was solely Mr. Russ who was
responsible for escalating the encounter.         Mr. Simmons’s
particular expression of bewilderment:     “I thought what was
going on was some kind of [M]afioso type hit,” id., does not
(Continued)


                                          28
whatever duty the deputies might have short-circuited by virtue

of their subterfuge was countermanded by their overriding duty

to   take    Mr.     Russ   into    custody      before   he   could    leave   the

jurisdiction.        See State v. Harvey, 187 S.E.2d 706, 712 (N.C.

1972) (“When a warrant . . . is placed in the hands of an

officer for execution, it is his duty to carry out its demands

without     delay,    and   he     incurs   no     liability   for     its   proper

execution, however disastrous may be the effect on the person

against whom it is issued.”).           That duty the deputies fulfilled,

albeit inelegantly. 4




exactly inspire confidence in the plaintiffs’ contention that
Mr. Russ lacked culpability for the incident.
     4
       Though the majority plainly hangs its hat on the alleged
violation of the deputies’ duty to identify themselves, it
conflates that supposed misstep with several other actions it
considers “brutish and bullying” or otherwise objectionable,
ante at 17, to declare that the officers were bound to observe a
considerably broader “duty not to engage in extreme and
outrageous conduct.”   Id. at 18.   Such a general mandate might
constitute useful public policy in the realm of everyday tort
law. It is of limited utility, however, to guide the actions of
police officers, who routinely fulfill their duties by lawfully
engaging in conduct that would be considered extreme if done by
an ordinary citizen. Tellingly, none of the cases cited by the
majority as establishing a special legal status for funerals and
burials, see ante at 19-20, remotely involved police conduct,
and none have discussed the need for balancing society’s
interest   in  the   solemnity   of   death  rituals   with  the
countervailing interest in the effective execution of criminal
justice.




                                              29
      Perhaps more importantly for the purposes of our analysis,

any injury or prejudice that the deputies may have intended by

virtue of their actions was directed solely at Mr. Russ.                              There

is no indication in the record of any animosity or ill-will

between the deputies and the plaintiffs.                         See J.A. 379, 596

(documenting plaintiffs’ deposition admissions that defendants

bore them no personal animus).                To the contrary, all indications

are   that   the   Sheriff’s       Office       extended     the   plaintiffs         every

consideration and courtesy throughout the days leading up to the

incident     and   beyond.         See    id.    at    76    (memorializing        Deputy

Gonzalez’s condolences to Peggy Russ on her husband’s death and

forgoing confrontation concerning her son’s whereabouts); id. at

145 (setting forth Chief Deputy McMahon’s accession to Peggy

Russ’s     pleas   to     stay     away       from    residence    during        mourning

period);     id.    at     369     (acknowledging           McMahon’s      apology      to

plaintiffs).

      The majority pays little heed to the targeting requirement,

suggesting     that      the   deputies’        timing      of   Mr.    Russ’s     arrest

arguably “demonstrates an intent to injure him, his family, and

anyone else at the funeral grieving the decedent’s death.”                            Ante

at 22.       The majority’s supposition finds no support in North

Carolina law, and it in fact appears to be an attempt to engraft

the   negligence         concept     of        foreseeability          (which     usually

circumscribes      the    contours       of    duty   and    damages)     onto    a   very

                                                30
different type of claim, the successful prosecution of which has

heretofore required a specific malevolent or uncaring intent on

the part of the defendant. 5           This unwarranted expansion of the

universe of potential plaintiffs is also in contravention of the

state’s statutory scheme regarding the award of punitive damages

in cases where the defendant has acted maliciously.                   See N.C.

Gen. Stat. § 1D-15(a)(2).           In such instances, the plaintiff must

prove malice “toward the claimant that activated or incited the

defendant    to    perform    the   act   or    undertake   the   conduct   that

resulted    in    harm   to   the   claimant.”      Id.   § 1D-5(5)   (emphasis




     5
       The majority cites Prior v. Pruett, 550 S.E.2d 166 (N.C.
Ct. App. 2001), for the uncontroversial proposition, echoed in
Schlossberg, that “generally, claims of negligence can not be
maintained   against   public   officials   in   their   individual
capacity, [but] these actions may be maintained if plaintiffs
bring forth evidence sufficient to pierce the cloak of official
immunity.”   Id. at 171    (citation and internal quotation marks
omitted).   It was probably no accident that the court in Prior
distinguished   between   “claims   of   negligence”   and   “these
actions.” An action arises out of a specific occurrence or set
of circumstances that, under the applicable law, may engender
myriad claims supporting the imposition of liability.       When it
is demonstrated that a defendant public official has acted
culpably enough to pierce the cloak of immunity, the plaintiff
no longer has a claim for ordinary negligence; instead, the
claim is for an intentional tort (assault and battery in
Schlossberg, and here, infliction of emotional distress) or some
functional equivalent.    Indeed, the denial of summary judgment
to the police defendants in Prior was based on the court’s
determination that genuine issues of material fact remained with
respect to the officers’ allegedly wanton conduct and gross
negligence. See id. at 171-72, 174.




                                           31
added).       Here, the record is clear that, when the commotion

began,      the   plaintiffs     were    in   a     limousine   waiting      for   the

procession to the gravesite to commence.                   That they had to exit

their    vehicle    and   walk    around      the    building   to   see    what   was

happening belies the conclusion that the deputies intended them

any harm at all.

      I would hold that the district court erred in withholding

public officials immunity from the arresting deputies and their

supervisor, and I would reverse the denial of summary judgment

on   that    basis.       I   would     remand      with   instructions     to   grant

summary judgment to all defendants as to the entirety of the

plaintiffs’ action, including the negligence claims, concluding

that as distasteful as the entire episode undoubtedly was, the

defendants owed no cognizable legal duty to the plaintiffs to

refrain from arresting Mr. Russ at the funeral home.                       Because my

good friends in the majority disagree and will allow this matter

to proceed to trial, I respectfully dissent.




                                              32
