                                NO. COA13-323

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 1 April 2014


CHARLES D. BROWN,
          Plaintiff,

       v.                                    Orange County
                                             No. 11 CVS 1204
TOWN OF CHAPEL HILL, CHAPEL HILL
POLICE OFFICER D. FUNK, in his
official and individual capacity,
and OTHER CHAPEL HILL POLICE
OFFICERS, in their individual and
official capacities, to be named
when their identities and level of
participation becomes known,
          Defendants.


       Appeal by defendants from order entered 18 September 2012

by Judge Carl R. Fox in Orange County Superior Court.              Heard in

the Court of Appeals 28 August 2013.


       McSurely and Turner, PLLC, by Alan McSurely, for plaintiff-
       appellee.

       Cranfill Sumner & Hartzog LLP, by Dan M. Hartzog and Dan M.
       Hartzog, Jr., for defendants-appellants.


       HUNTER, Robert C., Judge.


       Officer D. Funk (“defendant” or “Officer Funk”) and the

Town   of   Chapel   Hill   (“the   Town”)    (collectively    “defendants”)

appeal from an order denying in part their motion for summary
                                            -2-
judgment as to the claim of plaintiff Charles D. Brown for false

imprisonment.        Only Officer Funk’s appeal from the trial court’s

denial   of    his    motion    for    summary          judgment    based       on   public

official     immunity    is    properly      before       us.      Because      plaintiff

failed to forecast evidence that Officer Funk acted with malice,

we reverse.

                                   Background

      This    lawsuit    arises       out    of    the    stop     and       detention    of

plaintiff by Officer Funk and other officers of the Chapel Hill

Police     Department    (“CHPD”)       on        the    night     of    1    June    2009.

Plaintiff, a black male, is the owner of Precise Cuts & Styles

Barber Shop located at 136 E. Rosemary Street in Chapel Hill,

North Carolina.

      According to plaintiff’s verified complaint and deposition,

on 1 June 2009, after closing his shop at 10:00 p.m., plaintiff

stayed late to do some cleaning and remodeling.                          When plaintiff

was finished, around 11:25 p.m., he locked the shop’s front door

and walked west on Rosemary Street towards his fiancé’s house in

Carrboro.

      At around 11:35 p.m., plaintiff was walking along the north

side of West Rosemary Street when he saw two officers in police

cars parked in the convenience store lot on the south side of

the   street    across    from    Breadman’s            Restaurant.           One    of   the
                                        -3-
officers pulled out on Rosemary Street and into an empty lot on

the south side of the street.               As he walked past the officer,

plaintiff raised his right arm across his face, scratching the

left side of his face with his right hand.                 Plaintiff continued

walking on the north side of the street past the Breadman’s

parking lot, and heard someone say, “Stop.”                Not realizing that

the person was talking to him, plaintiff continued walking.

    Plaintiff      then    heard      the   same   voice    again,     this   time

directly behind him, saying, “I said stop!”                     Plaintiff turned

and saw Officer Funk with his hand on his weapon about five feet

away.    Plaintiff asked, “Stop for what? What did I do?”                 Officer

Funk responded, “[Y]ou are under arrest, Mr. Farrington [sic]”

as he grabbed plaintiff’s hand, spun him around, pushed him

against the back of a second police car that had just pulled in

front of plaintiff.        Officer Funk pulled plaintiff’s other arm

behind     his   back     and   tightly       fastened     the    handcuffs     on

plaintiff’s wrists, inflicting pain.

    Plaintiff     informed      the    officers    that    he    was   not    Cuman

Fearrington (“Mr. Fearrington”) and that his actual name was

Charles Brown.     When plaintiff did not receive any response from

the officers, he asked, “[A]re you sure you want to do this? My

name is not Mr. Farrington [sic].”             Again, the officers did not

respond.     Instead, Officer Funk pushed plaintiff against the
                                            -4-
trunk of the police car and patted plaintiff down, checking for

weapons.       Plaintiff      told    Officer       Funk    to    look    in    his     pants

pocket for his ID cards.              Defendant pulled out a set of cards

held together with a rubber band, flipped through them, and

threw them on the trunk of the police car.

       When    Officer     Funk      asked       plaintiff       from    where     he    was

walking, plaintiff told him that he had just left work.                            Officer

Funk questioned plaintiff: “From work at this time of night?”

Plaintiff explained that he               owned      a    barber shop on Rosemary

Street.       Officer Funk replied in a sarcastic and incredulous

tone: “Oh? You own a business?”                   Plaintiff responded, “If I was

white, this would not be happening.”                       Officer Funk then asked

whether      plaintiff     would     “feel       better”    if    he    called     a    black

officer.      Because plaintiff again thought Officer Funk was being

sarcastic, he replied, “No.”

       In the meantime, five police cars gathered, and several

cars   and    pedestrians        slowed     or    stopped    to     observe       what   was

happening.      A black police officer, Officer D. Williams, asked

plaintiff,      “If    I   had     pulled     you,       would    you    feel     better?”

Plaintiff then heard Officer Williams say to the other officers,

“I hate the ones like him.”

       At    12:14    a.m.,   Officer        Funk’s      partner,       Officer    Castro,

called Orange County Communications to verify the information on
                                          -5-
plaintiff’s identification card.                 When the operator confirmed

plaintiff’s      identification,         Officer   Castro      asked,     “[D]oes    he

have anything on the NCIC?                Or anything on other surrounding

indices?”       The operator replied, “I don’t show anything in NCIC

but I’m going to check surrounding . . . I’ll have to send a

message . . . it will take a few . . . .”                            Eventually the

operator responded that there was “no positive response,” and

the 16-minute call ended at 12:30 a.m.                     A few minutes later,

Officer Funk removed plaintiff’s handcuffs, and he and the other

officers drove off without apologizing or saying anything else

to plaintiff.

       The following day, plaintiff and his fiancé drove to the

CHPD    to   file     a   complaint       and    ask     for   a   photograph       and

description      of   Mr.   Fearrington.           They    met     with   Lieutenant

Bradley who told them he did not have time to look up the

requested information and that Officer Funk was in training and

could not meet with them either.                Because of what plaintiff and

his    fiancé    perceived      as   a    discriminatory       and    disrespectful

attitude from Lt. Bradley, they did not file a complaint that

day, fearing it would be dismissed with the same attitude.

       Instead, on 16 June 2009, plaintiff reported the incident

to the local NAACP, who asked the CHPD for the incident report

of    plaintiff’s     arrest.        Plaintiff     was    provided    the   incident
                                        -6-
report on 24 June 2009.          Defendants admitted that the report was

not created until requested by the NAACP, two weeks after the

incident.     The report is unsigned by Officer Funk and states

that at 12:17 a.m. on 2 June 2009 the “State of North Carolina”

was the victim of a “Suspicious Person” on the 300 Block of West

Rosemary Street.

      The report lists Officers Castro and Sabanosh as “others

involved” in the incident.           Officer Sabanosh does not, however,

appear anywhere on the radio log from that night.                      Although the

radio log indicates that Officer Taylor was present at the scene

of   the   incident,     the   incident     report     does     not    mention    him.

Officer Williams, the black officer, is not mentioned in either

the radio log or on the incident report.

      On 2 June 2011, plaintiff filed suit against the Town and

Officer     Funk   in    his    official      and    individual        capacity   for

assault,     false      imprisonment,       and     violation     of     plaintiff’s

constitutional rights under Article I, Section 20, and Article

I, Section 19, of the North Carolina Constitution.                         Plaintiff

pled that the Town had waived sovereign immunity by the purchase

of liability insurance.          In its response, the Town admitted that

it “participates in a local government risk pool, which provides

certain     coverage     to    the   Town     with    respect     to     Plaintiff’s

claims.”
                                          -7-
      On 13 August 2012, defendants filed a motion for summary

judgment,     arguing     that    (1)    plaintiff       had    not     and    could   not

establish facts to support any of his causes of action, (2)

Officer Funk was entitled to public official immunity in his

individual capacity, (3) the claims against Officer Funk in his

official    capacity      are    duplicative       of    the    claims       against   the

Town,   and   (4)   the       claims    directly       under    the    North    Carolina

Constitution should be dismissed because plaintiff had adequate

state remedies available.              In support of the motion for summary

judgment, defendants submitted an affidavit from Officer Funk.

      According     to    Officer       Funk’s   affidavit,        he    did    not    see

plaintiff until 12:14 a.m.—he drove to the Keys Food Mart, where

plaintiff first saw the two officers parked, after responding to

a loud music complaint on Church Street at 12:04 a.m.                            Officer

Funk first saw plaintiff walking west on the south side of the

road as defendant was turning right onto Rosemary.                            As he made

his turn, Officer Funk saw plaintiff look up in his direction

and   immediately       put     his    right    hand    in     front    of    his   face.

Plaintiff continued to cover his face with his hand, moving his

hand slowly across his face as Officer Funk drove by to keep his

face from view.          After plaintiff passed Officer Funk, plaintiff

crossed from the south side to the north side of the street just

before reaching Officer Castro’s patrol car in the Keys Food
                                          -8-
Mart lot.      As he crossed the street, he switched from using his

right hand to cover his face to using his left hand so that

Officer Castro could not see his face.                        Officer Funk claimed

that plaintiff hid his face continuously.

       Based    on     Officer     Funk’s       belief        that    plaintiff        was

intentionally hiding his face and it being after midnight in a

high    call    volume      area   of     town,       Officer    Funk      decided      to

investigate further.            He turned his vehicle around to get a

closer look at plaintiff, and, when he got close enough, “the

individual resembled a subject [he] knew had active local arrest

warrants—Cuman        Fearrington.”             In    addition       to    the    arrest

warrants, Officer Funk noted that Mr. Fearrington had evaded

arrest in the “Central Business District” of Chapel Hill earlier

that   day.         Officer    Funk,    believing       that    plaintiff        was   Mr.

Fearrington, thought that plaintiff was intentionally covering

his face based on those outstanding arrest warrants.

       According to Officer Funk, he got out of his police car and

asked plaintiff if he could speak to him, but plaintiff ignored

him and increased his pace.               Officer Funk denied placing his

hand on his weapon or threatening force.                     Officer Funk then told

plaintiff      to   stop,     repeating   his        order   several      times   before

plaintiff turned around and asked, “Why do I have to stop, just

because you say so?”            At that point, Officer Castro had pulled
                                       -9-
his vehicle in front of plaintiff, and it appeared to Officer

Funk   that       plaintiff   was   attempting     to    walk    around    Officer

Castro’s vehicle.         Defendant also claimed that he believed that

plaintiff might run away into an open alley nearby. Concerned

that plaintiff may attempt to run, Officer Funk placed his hands

on plaintiff’s left arm, and plaintiff jerked his arm away.

Officer Funk placed plaintiff in handcuffs with the assistance

of another officer; he claimed plaintiff continued to struggle

during the encounter.

       Officer Funk’s account of what happened after he handcuffed

plaintiff also differs from plaintiff’s account.                   Officer Funk

stated that while he was patting plaintiff down for weapons, he

asked plaintiff for his identification, and plaintiff told him

he   did    not    have   any.      Officer     Funk    claims   that     he    asked

plaintiff more than three times for his identification and that

each time plaintiff gave the correct name but the wrong date of

birth,     all    while   denying   that   he    had    identification         on   his

person.     Officer Funk also denies that any of the comments he

made to plaintiff regarding plaintiff working late and owning a

business were intended to express skepticism or to disparage

plaintiff.

       Officer Funk attributes the delay in the verification of

plaintiff’s        identification    to    the    fact    that   communications
                                        -10-
originally ran an incorrect birth date into the database.                         As

soon as communications ran the correct date of birth, they were

able to confirm plaintiff’s identity.                 Officer Funk claims that

plaintiff was only in investigative detention for 16 minutes,

from 12:14 a.m. to 12:30 a.m.

       Attached to Officer Funk’s affidavit was the radio log for

that night, which shows the self-reported status of the CHPD

officers.      The log stated that Officer Funk was dispatched to

500 Umstead Road at 11:32 p.m., and he arrived there at 11:42

p.m.    At 11:50 p.m., Officer Funk radioed dispatch that he was

available.          At   11:54,   he    was    dispatched    to    a    loud   noise

complaint      at    Church    Street    and    radioed     that   he    was   again

available at 12:04 a.m.           The log does not show that Officer Funk

ever radioed that he had arrived on the scene at Church street,

as it shows for the other locations to which he was dispatched

that night.         Finally, the log shows that Officer Funk arrived at

Breadman’s at 12:15 a.m. and radioed that he was available at

12:32 a.m.      Defendants also provided documentation of the call

between Officer Castro and Orange County Communications, which

shows that the call began at 12:14 a.m. and ended at 12:30 a.m.

       Judge    Carl     Fox    heard    defendants’      motion       for   summary

judgment and, on 18 September 2012, Judge Fox entered an order

allowing    defendants’        motion   as     to   plaintiff’s    constitutional
                                               -11-
claims and his claim for assault.                     Judge Fox denied the motion

as    to   plaintiff’s       claim       for     false    imprisonment        as    to    all

defendants.      Defendants appealed to this Court.

                                Grounds for Appeal

       Preliminarily,         we        note     that     Judge       Fox’s     order      is

interlocutory      and,      generally,         an    order     denying   a   motion      for

summary    judgment     is     not      immediately       appealable.         Schmidt      v.

Breeden, 134 N.C. App. 248, 251, 517 S.E.2d 171, 174 (1999).

“An interlocutory appeal is ordinarily permissible only if (1)

the trial court certified the order under Rule 54(b) of the

Rules of Civil Procedure, or (2) the order affects a substantial

right that would be lost without immediate review.”                                Boyd v.

Robeson Cnty., 169 N.C. App. 460, 464, 621 S.E.2d 1, 4 (2005).

       Officer Funk contends that the trial court erred in denying

his    motion     for   summary          judgment       based    on    public      official

immunity.       This Court has held that a public official’s right to

be    immune    from    suit       is    a     substantial       right    justifying       an

interlocutory      appeal.              See    Free     Spirit    Aviation,        Inc.   v.

Rutherford Airport Auth., 191 N.C. App. 581, 583, 664 S.E.2d 8,

10 (2008).       Therefore, defendant’s appeal of the denial of the

motion for summary judgment based on public official immunity is

properly before us.
                                                -12-
       Additionally,            both    defendant           and    the    Town     have     sought

immediate     review        of    the    denial        of    their       motion    for     summary

judgment on several non-immunity related grounds.                                       Defendants

argue that “it is well established that this Court will, in the

interests     of        judicial       economy,       entertain       the    entirety       of   an

appeal involving an issue which affects a substantial right,

though    the       remaining       issues       on     appeal       do     not,    in     and   of

themselves, affect such a right.”

       Defendants cite Block v. Cnty. of Person, 141 N.C. App.

273, 277, 540 S.E.2d 415, 419 (2000) (addressing the defendants’

argument      that        the    complaint        was        insufficient          to    sue     the

defendants         in    their     individual         capacity);          Houpe    v.     City   of

Statesville, 128 N.C. App. 334, 340, 497 S.E.2d 82, 87 (1998)

(addressing        “in     our    discretion”          the        defendant’s      non-immunity

related    arguments            “where     it    would       be     in    the     interests      of

judicial economy to do so”); Smith v. Phillips, 117 N.C. App.

378,   384,     451      S.E.2d     309,    314       (1994)       (holding       that    “in    the

interest      of    judicial       economy,       we        exercise      our     discretionary

power to suspend the rules pertaining to interlocutory appeals

and address the remainder of [the] defendants’ appeal”).

       However, this Court has noted that in cases where we have

exercised our discretion to also review non-immunity issues, the

Court has neither held “that non-immunity-related issues would
                                        -13-
always be considered on the merits in the course of deciding an

immunity-related        interlocutory      appeal”      nor     “recognize[d]      the

existence    of     a   substantial     right     to     have    multiple       issues

addressed in the course of an immunity-related appeal.                          On the

contrary,    in     most    immunity-related     interlocutory          appeals,    we

have declined requests that we consider additional non-immunity-

related issues on the merits.”               See Bynum v. Wilson Cnty., ___

N.C. App. ___, ___, 746 S.E.2d 296, 300, disc. review dismissed,

___   N.C.   ___,    748    S.E.2d   559   (2013).        In    this    case,    after

considering all of the circumstances, we decline to exercise our

discretion to consider the merits of defendants’ non-immunity

issues on appeal and dismiss defendants’ appeal with respect to

those issues as interlocutory.

                                     Arguments

      The sole issue properly before us is whether Judge Fox

erred   by   denying       Officer   Funk’s    motion    for     summary    judgment

based on public official immunity.

      Summary     judgment      shall   be     granted     “if    the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that any party is

entitled to a judgment as a matter of law.”                     N.C. Gen. Stat. §

1A–1, Rule 56 (2013).            When deciding the motion, “‘the trial
                                       -14-
judge must view the presented evidence in a light most favorable

to the nonmoving party.’”            In re Will of Jones, 362 N.C. 569,

573, 669 S.E.2d 572, 576 (2008) (quoting Dalton v. Camp, 353

N.C.   647,    651,   548   S.E.2d    704,    707   (2001)).      Additionally,

“‘[a]ll facts asserted by the [nonmoving] party are taken as

true   and    their   inferences     must    be   viewed   in   the   light   most

favorable to that party.’”           Woods v. Mangum, 200 N.C. App. 1, 5,

682 S.E.2d 435, 438 (2009) (quoting Dobson v. Harris, 352 N.C.

77, 83, 530 S.E.2d 829, 835 (2000)), aff’d per curiam, 363 N.C.

827, 689 S.E.2d 858 (2010). This Court reviews an appeal from

summary judgment de novo.          Id.      In applying Rule 56, this Court

has held that “[s]ummary judgment is appropriate . . . if the

non-moving party is unable to overcome an affirmative defense

offered by the moving party.”               Free Spirit Aviation, 191 N.C.

App. at 583, 664 S.E.2d at 10 (quoting Griffith v. Glen Wood

Co., Inc., 184 N.C. App. 206, 210, 646 S.E.2d 550, 554 (2007)).

I.     Public Official Immunity – Malice Exception

                   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. Thus, a public official is immune
              from suit unless the challenged action was
              (1) outside the scope of official authority,
              (2) done with malice, or (3) corrupt.
                                     -15-
Wilcox v. City of Asheville, __ N.C. App. __, __, 730 S.E.2d

226,    230   (2012)   (internal    citations   omitted),    disc.   review

denied, 366 N.C. 574, 738 S.E.2d 363 (2013).                Here, the only

exception to public official immunity plaintiff argued on appeal

is the malice exception.       Specifically, plaintiff has not cited

any authority separately addressing the corruption exception to

the public official immunity doctrine or provided any analysis

as to this in his brief.           Therefore, we will only address the

malice exception.      See Wilkerson v. Duke Univ., __ N.C. App. __,

__, 748 S.E.2d 154, 161 (2013) (noting that arguments not raised

on appeal are “deemed abandoned”).

       This Court has noted, with regard to the malice exception,

that:

              As   for  the   first  question,   the  most
              commonly-cited definition of malice in this
              context is from our Supreme Court’s decision
              in In re Grad v. Kaasa, which states that
              “[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.”    312
              N.C. 310, 313, 321 S.E.2d 888, 890 (1984).
              Thus, elementally, a malicious act is an act
              (1) done wantonly, (2) contrary to the
              actor's duty, and (3) intended to be
              injurious to another.

Wilcox, __ N.C. App. at __, 730 S.E.2d at 230.              Thus, the only

issue is whether plaintiff sufficiently forecasted evidence for

each element of malice.      See Schlossberg v. Goins, 141 N.C. App.
                                            -16-
436, 446, 540 S.E.2d 49, 56 (2000) (“[T]o survive [a] police

officer[‘s] motion for summary judgment on the issue of their

individual       liability,         [plaintiff]          must       have     alleged       and

forecasted evidence demonstrating the officers acted corruptly

or with malice.”).            If so, there is a genuine issue of material

fact as to whether Officer Funk is entitled to the defense of

public official immunity, and the trial court did not err in

denying summary judgment.                  However, if not, then Officer Funk

would be immune from civil liability.

          A. Contrary to Duty

       The first element of malice is whether Officer Funk acted

contrary to his duty when he detained plaintiff.                              To determine

this    issue,         we   must        decide     whether       plaintiff’s         seizure

constituted an investigatory stop or an arrest.                              See State v.

Carrouthers, 200 N.C. App. 415, 419, 683 S.E.2d 781, 784 (2009)

(“Generally,      a     person      can    be    ‘seized’      in     two   ways     for   the

purposes    of     a    Fourth      Amendment       analysis:         by    arrest    or    by

investigatory          stop.”).                  Although       police       officers      are

authorized    during        an    investigatory         stop    to    take    measures      to

protect their personal safety and maintain status quo, State v.

Campbell,    188       N.C.      App.     701,   708-709,       656    S.E.2d      721,    727

(2008),    this    Court      has       noted    that   “[w]here       the    duration      or

nature of the intrusion exceeds the permissible scope, a court
                                            -17-
may determine that the seizure may evolve into a de facto arrest

. . . even in the absence of a formal arrest,” State v. Milien,

144 N.C. App. 335, 340, 548 S.E.2d 768, 772 (2001).

     Here,     it      is     undisputed         that    Officer     Funk     immediately

handcuffed     plaintiff           once     he     reached     him     without       asking

plaintiff to identify himself or providing any explanation for

why plaintiff was being stopped.                   Furthermore, plaintiff claimed

that Officer Funk immediately told him that he was under arrest.

While Officer Funk claims that he handcuffed plaintiff during an

investigatory         stop    to    keep    him     from     fleeing,       Officer       Funk

admitted   that       he     mistakenly     believed       that     plaintiff       was   Mr.

Fearrington,      a    person      whom     arrest       warrants    had     been    issued

against.         However,          once     plaintiff’s        true        identity        was

established, Officer Funk released plaintiff.                         For purposes of

this appeal, because “[r]easonable suspicion is a less demanding

standard than probable cause and requires a showing considerably

less than preponderance of the evidence[,]” State v. Styles, 362

N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (internal quotation

marks omitted), we conclude that plaintiff’s seizure constituted

a   de   facto        arrest       and     not,     as     defendants       contend,       an

investigatory stop.            Thus, Officer Funk must have had probable

cause; otherwise, he would be acting contrary to duty.                                     See
                                      -18-
Milien, 144 N.C. App. at 339, 548 S.E.2d at 771 (noting that “a

de facto arrest . . . must be justified by probable cause”).

       In the present case, it is undisputed that Officer Funk had

probable cause to arrest Mr. Fearrington.                 “[W]hen the police

have     probable    cause    to   arrest    one     party,   and    when   they

reasonably mistake a second party for the first party, then the

arrest    of   the   second   party    is    a    valid   arrest.”     Hill    v.

California, 401 U.S. 797, 802, 28 L. Ed. 2d 484, 489 (1971).

Thus, the issue is whether Officer Funk’s mistake was reasonable

based on the totality of the circumstances.                   Subjective good-

faith belief is not sufficient on its own; instead, the Supreme

Court noted that “sufficient probability, not certainty, is the

touchstone of reasonableness under the Fourth Amendment.”                     Id.

at 804, 28 L. Ed. 2d at 490.          Along these lines, this Court, in

Robinson v. City of Winston-Salem, 34 N.C. App. 401, 406-07, 238

S.E.2d 628, 631 (1977), noted that with regard to civil claims

for false imprisonment against police officers who arrest the

wrong person: “liability for false imprisonment will be imposed

only when the arresting officer has failed to use reasonable

diligence to determine that the party arrested was actually the

person described in the warrant.”                This concept was reinforced

by this Court in State v. Lynch, 94 N.C. App. 330, 333, 380

S.E.2d 397, 399 (1989), which noted, relying on Robinson, that:
                                      -19-
even though a police officer reasonably mistakenly arrests the

wrong person, the officer must still take “reasonable steps to

confirm the identity of the individual under suspicion.”

    With     regard    to   the   reasonableness    analysis     required   by

Hill, the Fourth Circuit has noted that

             the    qualified    immunity     reasonableness
             determination    is    based     on    evidence
             reasonably available to the police officer
             and in light of any exigencies present. And
             importantly, this inquiry must not result in
             a second-guessing of the officer’s actions
             with the benefit of 20/20 hindsight.       This
             is so because officers executing a warrant
             are     not    required      to     investigate
             independently every claim of innocence, or
             to be absolutely certain that the person
             arrested is the person identified in the
             warrant.    Instead, sufficient probability,
             not   certainty,    is   the    touchstone   of
             reasonableness under the Fourth Amendment.
             Mistaken identity errors, of course, will
             inevitably occur from time to time, but the
             law sensibly recognizes that not every mix-
             up in the issuance of an arrest warrant,
             even though it leads to the arrest of the
             wrong person . . . automatically constitutes
             a constitutional violation for which a
             remedy may be sought under . . . [section]
             1983. In sum officers who mistakenly arrest
             the wrong person are immune from § 1983
             liability unless they act in an objectively
             unreasonable manner in the circumstances, as
             for example, in failing to investigate
             readily available exculpatory evidence.

Brown   v.    Wiita,   7    F.    App’x   275,   278-79   (4th   Cir.   2001)

(alteration in original) (internal quotation marks and citations

omitted).
                                             -20-
       Here, under         Hill and Robinson, the evidence taken in a

light    most        favorable     to     plaintiff      establishes      that    Officer

Funk’s mistaken belief that plaintiff was Mr. Fearrington was

reasonable and that Officer Funk used reasonable diligence to

determine whether plaintiff was who he claimed to be.                                  With

regard     to     Officer        Funk’s      mistaken       belief,    the    undisputed

evidence, as established by Officer Funk’s affidavit attached to

the motion for summary judgment, shows that Officer Funk knew

Mr. Fearrington had active local arrest warrants out on him and

that    Mr.     Fearrington       had     evaded     arrest     earlier   that    day    in

Chapel     Hill.          After      telling       plaintiff     to   stop,    plaintiff

continued       to     walk   away      from      Officer     Funk.    Once    plaintiff

stopped, according to his own complaint, Officer Funk stated:

“You are under arrest, Mr. Fearrington.”                          Photos of both Mr.

Fearrington and plaintiff were attached to the affidavit, and

the individuals appear similar.

       Under     the      totality      of   the    circumstances,      Officer       Funk’s

mistaken      belief       was    reasonable.           Plaintiff     admitted    in    his

complaint that he did not stop the first time Officer Funk told

him to.       Once he did, Officer Funk approached him and called him

“Mr. Fearrington”; thus, even though Officer Funk was only a few

feet    away,        he   still    held      on    to   his    mistaken      belief    that

plaintiff was Mr. Fearrington.                     Furthermore, even though there
                                         -21-
are some differences in the appearance of plaintiff and Mr.

Fearrington, the encounter took place late at night.                          Thus,

under the totality of the circumstances, plaintiff has failed to

forecast evidence that Officer Funk’s mistake was unreasonable.

Finally, although plaintiff immediately told Officer Funk that

he was not Mr. Fearrington, “aliases and false identifications

are not uncommon,”         Hill, 401 U.S. at 803, 28 L. Ed. 2d at 489.

Accordingly, it was reasonable for Officer Funk to not believe

plaintiff’s claim until he saw plaintiff’s identification and

was able to verify it through NCIC.

       We   find   Lynch    provides      guidance.      In    Lynch,    a    police

officer     mistakenly      stopped       the     defendant,     believing      the

defendant was someone for whom arrest warrants had been issued.

Id. at 333, 380 S.E.2d at 399.             Relying on Hill, this Court held

that   because     “[p]ictures      of    [the]    defendant     and    the   other

individual show that they are sufficiently similar in appearance

that the officer's mistake was not unreasonable,” the officer

had “a reasonable basis to stop [the] defendant and require him

to identify himself.”         Id.    Then, after the defendant attempted

to flee, officers were then authorized to arrest the defendant

in order to “ascertain his identity.”              Id.

       Initially,     we     note     that      since    Lynch     involved       an

investigatory stop that transformed into a formal arrest and in
                                            -22-
the    present      case      plaintiff’s       seizure       constituted        a    de     facto

arrest, Lynch’s guidance is limited to showing how the Court

determines       the    “reasonableness”          of     a    mistaken      belief.          Like

Lynch,     pictures         introduced      at     summary         judgment          show    that

plaintiff      and      Mr.     Fearrington        are       sufficiently        similar       in

appearance.         Based on the circumstances noted above in addition

to the similar photographs, Officer Funk’s misidentification was

understandable and reasonable.

       Furthermore, plaintiff has failed to forecast any evidence

that Officer Funk did not use due diligence in ascertaining

plaintiff’s true identity.                 While it is undeniable that there

was some delay given the mix-up in plaintiff’s birthdate, the

call    log   indicates         that    Officer     Funk      was    dispatched         to    the

location      at       12:14     a.m.     and      that       he    was     available          at

approximately          12:32    a.m.      Thus,     from      the    time       Officer       Funk

noticed       plaintiff        until      the     time        he    was     released          was

approximately          18   minutes.        Given      the     mix-up      in    plaintiff’s

birthdate, the evidence shows that Officer Funk used reasonable

diligence      to    ascertain         plaintiff’s       identity.          Plaintiff         has

offered no evidence to the contrary as to the length of this

detention      nor      any    evidence     that       Officer      Funk     did       not    act

diligently.         Accordingly, under Robinson, plaintiff has failed
                                               -23-
to forecast evidence to refute Officer Funk’s claim that he

diligently attempted to verify plaintiff’s identity.

       While the dissent contends that the rule of law in Robinson

requires that an officer use reasonable diligence to ascertain

the    person’s         identity         before        arresting        him,    given        the

differences          between      how    the       plaintiff    in    Robinson      and     how

plaintiff in the present case were arrested, we do not believe

that the rule of law in Robinson would not be satisfied in the

present case.          In Robinson, the police officers went to a house

to serve a warrant on the plaintiff.                        Id. at 403, 238 S.E.2d at

630.      Here, Officer Funk was not specifically dispatched to

arrest    plaintiff;         instead,         he     saw    plaintiff    walking       on   the

street    and    believed         him    to     be    Mr.    Fearrington,      a    man     whom

Officer Funk “knew” and who had evaded arrest earlier that same

day.     Thus, Officer Funk thought that plaintiff was on the verge

of running.          Consequently, he did not have the same type of time

prior to arresting plaintiff to exercise due diligence as the

officers did in Robinson.                     However, in totality, Officer Funk

exercised       due    diligence         by    asking       plaintiff    to    stop,      which

plaintiff    refused         to    do,    and      immediately       running   plaintiff’s

name through NCIC to see if he was, in fact, who he claimed to

be.    Consequently, Officer Funk “use[d] reasonable diligence[,]”

Robinson,       34    N.C.     App.      at    406-407,       238    S.E.2d    at   631,     to
                                         -24-
determine      whether     plaintiff     was     Mr.    Fearrington         under     these

circumstances.

       In summary, under Hill and Robinson, plaintiff has failed

to forecast any evidence, besides mere unsupported allegations,

that   Officer     Funk    acted      contrary    to       his    duty;    specifically,

plaintiff       offered    no    evidence       showing          that    Officer    Funk’s

mistaken       belief     that     plaintiff         was     Mr.        Fearrington    was

unreasonable, as set out in Lynch, or that Officer Funk did not

act diligently in determining plaintiff’s true identity.

          B.        Wantonness and Intent to Injure

       “An act is         wanton when it is done of wicked purpose, or

when done needlessly, manifesting a reckless indifference to the

rights of others.”          Yancey v. Lea, 354 N.C. 48, 52, 550 S.E.2d

155, 157 (2001).          In order to establish that Officer Funk acted

with intent to injure, this Court has noted that:

               a plaintiff may not satisfy her burden of
               proving   that   an  official's   acts   were
               malicious through allegations and evidence
               of mere reckless indifference.    Rather, as
               discussed supra, the plaintiff must show at
               least that the officer's actions were so
               reckless or so manifestly indifferent to the
               consequences . . . as to justify a finding
               of [willfulness] and wantonness equivalent
               in spirit to an actual intent

Wilcox,    __    N.C.     App.   at    __,     730     S.E.2d       at    232   (internal

citations and quotation marks omitted).
                                     -25-
    According to plaintiff’s complaint, Officer Funk “roughly

pulled”   plaintiff’s      arm   behind     his     back    in   an    attempt     to

“inflict great pain” while he was handcuffing plaintiff.                        After

plaintiff claimed that he was not Mr. Fearrington, Officer Funk

kept plaintiff in handcuffs while his fellow officers checked

plaintiff’s    identification       card.      At   one    point,     Officer    Funk

sarcastically asked plaintiff: “Oh? You own a business?”                         When

plaintiff told Officer Funk that this would not be happening if

he were white, Officer Funk asked plaintiff if it would make him

feel better if he called a black officer.                   After NCIC verified

plaintiff’s identity, Officer Funk released plaintiff without

apologizing.      At the hearing, plaintiff’s counsel attempted to

cast the situation as a result of “race discrimination” based on

the history and “general situation” of how black people are

treated by Chapel Hill police.

    Viewing       these   allegations     in    a   light    most     favorable    to

plaintiff, the evidence tends to show that Officer Funk may have

acted disrespectfully and unprofessionally while attempting to

verify plaintiff’s identity or even refusing to apologize after

the incident.      However, once plaintiff’s identity was confirmed

through   NCIC,    Officer   Funk    released       plaintiff.        Furthermore,

there is nothing that establishes a reckless indifference to

plaintiff’s rights during the encounter.                  As discussed, Officer
                                             -26-
Funk’s de facto arrest of plaintiff was based on his mistaken,

yet reasonable, belief that he was Mr. Fearrington; accordingly,

under Hill, his de facto arrest was “valid.”                              In order to verify

plaintiff’s claim that he was not Mr. Fearrington, Officer Funk,

along with other Chapel Hill police officers, ran plaintiff’s

name through central command.                 As with routine traffic stops, an

officer     “may     request           a     driver's           license           and    vehicle

registration,      run   a    computer         check,          and       issue    a   citation.”

United States v. Green, 740 F.3d 275, 280 (4th Cir. 2014); see

also State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132

(1999) (“After a lawful stop, an officer may ask the detainee

questions     in    order         to       obtain        information             confirming    or

dispelling the officer's suspicions.”).                             Here, since the basis

for the initial de facto arrest of plaintiff was valid and it

was not unreasonable to continue detaining plaintiff under the

circumstances after his identity was verified, Officer Funk was

entitled to run plaintiff’s name to determine whether he had any

outstanding warrants.

    Moreover,       although           plaintiff         alleges         that     Officer     Funk

“roughly” put him in handcuffs and tried to inflict great pain,

plaintiff has failed to allege any facts that Officer Funk’s

conduct   was   wanton       or    done      with        a    reckless      indifference       to

plaintiff’s     rights       as   compared          to       what    a    reasonable     police
                                         -27-
officer     would     do   in    Officer          Funk’s    position.      Believing

plaintiff      was    someone     else      who    had     arrest   warrants    issued

against him and had evaded police earlier that day, Officer Funk

seized plaintiff while confirming his belief.                       It is undeniable

that the act of being handcuffed could hardly be characterized

as anything but uncomfortable and, likely, painful.                         However,

plaintiff has failed to plead any facts to suggest that Officer

Funk took additional steps while handcuffing plaintiff to make

the experience any more painful, besides unsupported allegations

that Officer Funk “intended” to inflict pain.                         Without more,

plaintiff’s bare contention that the handcuffs were painful is

not enough to rise to the level of wanton or show an intent to

injure.

      Consequently, plaintiff has failed to produce any evidence

showing that Officer Funk acted with a reckless indifference to

plaintiff’s rights.        Besides vague allegations that Officer Funk

spoke     to         plaintiff        sarcastically           and     treated      him

disrespectfully—what plaintiff’s counsel classified as “arrogant

and   chauvinist       talk”     at   the    motion        hearing—and   unsupported

claims that Officer Funk handcuffed him in such a way as to

cause him “great pain,” plaintiff has failed to forecast any

evidence that Officer Funk acted wantonly or with an intent to

injure.
                                        -28-
       In summary, while the initial burden was on Officer Funk to

show the absence of any genuine issue of material fact that he

did not act with malice, we believe that he met this burden, and

he was entitled to the affirmative defense of public official

immunity.      Specifically, the foregoing evidence, taken in the

light most favorable to plaintiff, is insufficient to raise a

genuine issue of fact as to the existence of the elements of

malice, i.e., that Officer Funk’s actions were contrary to his

duty, wanton, and so reckless as to justify a finding of intent

to injure.      While we do not disagree that the evidence may show

that    Officer      Funk   acted    with   reckless     indifference       prior    to

arresting      plaintiff       and   during     his     interactions      with     him,

plaintiff      has    failed    to    establish       Officer     Funk   acted     with

malice, even with all discrepancies resolved in his favor, which

is a required showing to overcome the public official immunity

doctrine.      See Griffith v. Glen Wood Co., Inc., 184 N.C. App.

206,    210,   646    S.E.2d    550,    554    (2007)    (“Summary       judgment   is

appropriate if . . . the non-moving party is unable to overcome

an     affirmative      defense      offered      by     the    moving     party.”).

Therefore,     the     trial    court   erred    in     denying    his    motion    for

summary judgment on this basis.

                                     Conclusion
                                    -29-
      Based on the foregoing reasons, taking the evidence in a

light   most    favorable   to   plaintiff,       plaintiff    has    failed   to

forecast      evidence    that   Officer     Funk     acted     with    malice.

Therefore, Officer Funk was entitled to the affirmative defense

of   public    official   immunity,    and   the    trial     court    erred   in

denying his motion for summary judgment on this basis.



      REVERSED.

      Judge McCULLOUGH concurs.

      Judge       GEER      dissents         by       separate         opinion.
                                NO. COA13-323

                     NORTH CAROLINA COURT OF APPEALS

                              Filed: 1 April 2014


CHARLES D. BROWN,
          Plaintiff,

     v.                                   Orange County
                                          No. 11 CVS 1204
TOWN OF CHAPEL HILL, CHAPEL HILL
POLICE OFFICER D. FUNK, in his
official and individual capacity,
and OTHER CHAPEL HILL POLICE
OFFICERS, in their individual and
official capacities, to be named
when their identities and level of
participation becomes known,
          Defendants.


     GEER, Judge dissenting.


     The sole issue on appeal is whether there exists a genuine

issue of material fact regarding whether Officer Funk acted with

malice    and,   therefore,    is   not   entitled   to   public   official

immunity.    I believe that the majority opinion has shown only

that no issue of genuine fact exists regarding whether Officer

Funk had reasonable suspicion to stop plaintiff.             Yet, because

Officer Funk arrested plaintiff, he was required to have more

than a suspicion; he could not arrest plaintiff without probable

cause.    The majority -- which concludes that Officer Funk in

fact arrested plaintiff -- bases its holding that Officer Funk

did not act improperly in arresting plaintiff almost entirely on
                                      -2-

an investigatory stop case, State v. Lynch, 94 N.C. App. 330,

380 S.E.2d 397 (1989), that concluded only that the officer had

reasonable     suspicion.       The     majority      holds       that     it    is

permissible,    when   an   officer   suspects      that   an   individual       is

another   person,      to    arrest     that    person      and     then        seek

identification.     That holding is an extraordinary undermining of

the protections of the Fourth Amendment.

    In addition, I believe that the majority improperly applies

the applicable standard of review by (1) failing to require

defendant Officer Funk to meet his initial burden of showing an

absence of any genuine issue of material fact and (2) failing to

view the evidence, including that presented by Officer Funk, in

the light most favorable to plaintiff, the non-moving party.

Because the majority failed to properly apply the standard of

review and, at most, merely determined that Officer Funk had a

reasonable     suspicion      sufficient       to    stop       plaintiff,        I

respectfully dissent.

                                Discussion

    It is well established that:

          [r]egardless of who has the burden of proof
          at trial, upon a motion for summary judgment
          the burden is on the moving party to
          establish that there is no genuine issue of
          fact remaining for trial and that he is
          entitled to judgment as a matter of law.
          Thus,   a   defendant  moving  for   summary
                                      -3-

               judgment assumes the burden of producing
               evidence of the necessary certitude which
               negatives the plaintiff's claim. Until the
               moving party makes a conclusive showing, the
               non-moving party has no burden to produce
               evidence.

Marlowe v. Piner, 119 N.C. App. 125, 127-28, 458 S.E.2d 220, 222

(1995)       (emphasis    added)      (internal       citations   omitted).

Generally, "summary judgment is not appropriate when there are

conflicting versions of the events giving rise to the action, or

when there is no conflict about the events that occurred, but

the    legal    significance    of   those   events   is   determined    by   a

reasonable person test."         Griffith v. Glen Wood Co., 184 N.C.

App. 206, 210, 646 S.E.2d 550, 554 (2007).

       With respect to malice, the exception to public official

immunity at issue in this case, our Supreme Court has held: "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, 312 N.C. 310, 313, 321 S.E.2d

888,   890     (1984).   This    Court   has   recently    interpreted   this

definition to mean that "a malicious act is an act (1) done

wantonly, (2) contrary to the actor's duty, and (3) intended to

be injurious to another."        Wilcox v. City of Asheville, ___ N.C.

App. ___, ___, 730 S.E.2d 226, 230 (2012), appeal dismissed and
                                          -4-

disc. review denied, ___ N.C. ___, 738 S.E.2d 363, 401 (2013).

       Regarding whether Officer Funk acted contrary to his duty,

the    majority     concludes      that     under        the   totality   of    the

circumstances, Officer Funk's mistaken belief that plaintiff was

Mr.    Fearrington       was   reasonable        and,    therefore,    plaintiff's

arrest was not contrary to Officer Funk's duty.                  I disagree.

       Whether a police officer has acted contrary to his duty

when   arresting        an   individual    is     determined    by    whether   the

officer has complied with N.C. Gen. Stat. § 15A-401 (2013) and

the Fourth Amendment.          See Bailey v. Kennedy, 349 F.3d 731, 746

(4th Cir. 2003) (holding officer not entitled to public official

immunity for false arrest claim when arrest not in accordance

with N.C. Gen. Stat. § 15A-401 and "contrary to [officer's]

duty"); Glenn-Robinson v. Acker, 140 N.C. App. 606, 615, 538

S.E.2d   601,     609    (2000)   ("'The        Fourth   Amendment    prohibits   a

police officer from arresting a citizen except upon probable

cause.'" (quoting Rogers v. Powell, 120 F.3d 446, 452 (3d Cir.

1997))); N.C. Gen. Stat. § 15A-401(b)(2) (providing in pertinent

part that officer may make warrantless arrest if he has probable

cause to believe individual has committed felony or committed

misdemeanor and will not be apprehended or may cause physical

injury to self or others or property damage if not immediately

arrested).      As this Court explained in Glenn-Robinson, "'[a]
                                      -5-

false arrest is an arrest without legal authority and is one

means of committing a false imprisonment.'"                 140 N.C. App. at

624, 538 S.E.2d at 615 (quoting Marlowe, 119 N.C. App. at 129,

458 S.E.2d at 223).

      As this Court has explained, "there are generally two ways

in which a person can be 'seized' for Fourth Amendment purposes:

(1) by arrest, which requires a showing of probable cause; or

(2) by investigatory detention, which must rest on a reasonable,

articulable      suspicion      of   criminal       activity."           State   v.

Carrouthers, 213 N.C. App. 384, 388, 714 S.E.2d 460, 463 (2011).

      In this case, the parties disagreed on whether Officer Funk

arrested plaintiff or whether Officer Funk merely conducted an

investigatory stop.          I agree with the majority that the evidence

is sufficient to allow a jury to find that Officer Funk arrested

plaintiff     and     that    plaintiff's      seizure     was   not      just   an

investigatory stop.          Nevertheless, I believe that the majority,

despite     holding      that     Officer      Funk      arrested      plaintiff,

essentially applies the standards for an investigatory stop in

deciding that Officer Funk did not act contrary to his duty.

Because of its failure to recognize the differences between the

two types of seizures, the majority erroneously concludes that

the   evidence      necessary   to   support    a   stop   based    on    mistaken

identity is sufficient to support an arrest based on mistaken
                                          -6-

identity.

      "An investigatory stop is a 'brief stop of a suspicious

individual[] in order to determine his identity or to maintain

the status quo momentarily while obtaining more information.'"

State v. White, 214 N.C. App. 471, 476, 712 S.E.2d 921, 925

(2011) (quoting Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed.

2d 612, 617, 92 S. Ct. 1921, 1923 (1972)).                When, however, "the

duration     or   nature    of   the    intrusion   exceeds      the    permissible

scope [of an investigatory stop], a court may determine that the

seizure constituted a de facto arrest that must be justified by

probable cause, even in the absence of a formal arrest."                       State

v. Milien, 144 N.C. App. 335, 340, 548 S.E.2d 768, 772 (2001).

The   distinction    between       an    investigatory    stop    and    an   arrest

reveals that an officer cannot justify an arrest by the need to

obtain more information -- probable cause necessarily must mean

more than a need to obtain additional information to confirm or

dispel an officer's belief or concern.

      With    respect      to    the    issue   whether   plaintiff       presented

sufficient evidence to raise an issue of fact regarding whether

Officer Funk had probable cause to arrest him, this Court has

noted:

             "The existence or nonexistence of probable
             cause is a mixed question of law and fact.
             If the facts are admitted or established, it
                                        -7-

               is a question of law for the court.
               Conversely, when the facts are in dispute
               the question of probable cause is one of
               fact for the jury."

Glenn-Robinson, 140 N.C. App. at 619, 538 S.E.2d at 612 (quoting

Pitts v. Pizza, Inc., 296 N.C. 81, 87, 249 S.E.2d 375, 379

(1978)).        Where   the   parties    present    substantially    different

versions of the facts relating to probable cause, as is true in

this case, summary judgment is inappropriate and instead the

issue must go to the jury who, as "[t]he trier of fact[,] must

determine exactly what transpired and, based on those facts,

determine if probable cause existed."              Id. at 621, 538 S.E.2d at

612.

       "'The     test   for   whether    probable     cause     exists   is   an

objective one -- whether the facts and circumstances, known at

the time, were such as to induce a reasonable police officer to

arrest,    imprison,      and/or   prosecute       another.'"       Thomas    v.

Sellers, 142 N.C. App. 310, 315, 542 S.E.2d 283, 287 (2001)

(emphasis added) (quoting Moore v. Evans, 124 N.C. App. 35, 43,

476 S.E.2d 415, 422 (1996)).             The majority, however, fails to

consider the facts and circumstances as known to Officer Funk at

the time of the detention.          Instead, the majority, in effect,

determines post hoc what Officer Funk could have concluded given

the information before this Court.            Furthermore, contrary to the
                                             -8-

approach    adopted       by   the    majority,      we   must,     on    a    motion    for

summary judgment, determine what Officer Funk knew by viewing

the evidence in a light most favorable to plaintiff.                             We do not

take Officer Funk's assertions at face value when the record

contains evidence drawing those assertions into doubt.

       Officer Funk justifies his arrest of plaintiff on his claim

that   he   mistakenly         believed      plaintiff      was    a     man    named    Mr.

Fearrington.         In    cases      of     an    arrest    based       upon     mistaken

identity, if "'the police have probable cause to arrest one

party, and [if] they reasonably mistake a second party for the

first party, then the arrest of the second party is a valid

arrest.'"      Hill v. California, 401 U.S. 797, 802, 28 L. Ed. 2d

484,    489,   91    S.    Ct.       1106,    1110    (1971)       (quoting       Hill    v.

California, 96 Cal. 2d 550, 553, 72 Cal. Rptr. 641, 643, 446

P.2d 521, 523 (1968)).               Under the reasonable mistake test, an

officer's "subjective good-faith belief alone is insufficient to

validate the arrest."            United States v. Glover, 725 F.2d 120,

122 (D.C. Cir. 1984).            Rather, the Court must determine whether

the arrest was objectively reasonable in light of the totality

of the circumstances.           Id.

       Here,   the     majority        relies      almost     exclusively         on     the

photographs of plaintiff and Mr. Fearrington in the record which

establish,     in    the   majority's         opinion,      that   the     two    men    are
                                        -9-

similar in appearance.             Based on the photographs, the majority

concludes that it would be objectively reasonable for Officer

Funk    to   confuse     one   for    the   other.       By    relying      on     these

photographs, the majority has not required that Officer Funk

meet his initial burden as the moving party.                        Officer Funk did

not, in arguing that he mistakenly believed plaintiff was Mr.

Fearrington, come forward with evidence that no issue of fact

existed as to his opportunity to see plaintiff's face and that

he had a reasonable basis for believing plaintiff was, in fact,

Mr. Fearrington.

       In considering the totality of the circumstances, a variety

of factors may be relevant.             For example, in Hill, Glover, and

State v. Frazier, 318 N.W.2d 42 (Minn. 1982) (relied upon by the

court   in     Glover),     the    courts   looked      at    (1)    the    basis   and

specificity        of    the   officer's      knowledge       of      the   suspect's

appearance, (2) how clearly the officer was able to observe the

individual, (3) the discrepancies between the description of the

suspect      and   the     individual   the      officer      observed,      (4)    the

officer's reasons for believing the subject would be present in

the location arrested, including proximity in time and distance

of   suspect's      last    known    location,    and    (5)    the     individual's

behavior.

       Here,    Officer     Funk    presented    no   evidence        regarding     the
                                         -10-

basis for his knowledge of Mr. Fearrington's appearance.                              While

the majority asserts that Officer Funk "knew" Mr. Fearrington,

nothing      in    Officer    Funk's    affidavit       supports      the     majority's

claim.         Officer      Funk    stated     only     that   he     knew     that     Mr.

Fearrington        had   outstanding     warrants       and    that    he    had    evaded

arrest earlier in the day.              Officer Funk provides no explanation

of how he knew what Mr. Fearrington looked like.

       Moreover, Officer Funk provided no specific explanation of

what    about      plaintiff       resembled    Mr.     Fearrington.          He    merely

asserted that plaintiff and Mr. Fearrington both "have similar

facial features," citing photographs attached to his affidavit,

without expressly indicating whether he had that knowledge at

the time of the arrest or what facial features he considered

similar.          Significantly,       the   photographs       did    not     come     into

existence until several months after the arrest.                            As indicated

by the URLs at the bottom of the photographs of both plaintiff

and    Mr.   Fearrington,       these    photographs       came      from    an    article

published in the periodical The Independent Weekly.                               In other

words, the only basis presented by Officer Funk in support of

his    claim      that   plaintiff     and     Mr.   Fearrington      resembled        each

other was a newspaper article published three months after the

arrest.           Because    Officer    Funk     bore    the    initial       burden     of

establishing a lack of any issue of fact and because, in any
                              -11-

event, we must view the evidence in a light most favorable to

plaintiff, we may not infer, as the majority implicitly does,

that Officer Funk was familiar with Mr. Fearrington's appearance

or knew of the similarities at the time of the arrest.

    As for Officer Funk's opportunity to observe plaintiff's

facial features, the evidence, when viewed in the light most

favorable to plaintiff, gives rise to a genuine issue of fact to

be resolved by the jury.   Officer Funk's own evidence indicates

that plaintiff's hand obscured plaintiff's face and that Officer

Funk decided to follow plaintiff from his patrol car because

"[w]ithout seeing his face I could not be certain that this

subject was not the same individual who had been avoiding arrest

all day."   According to Officer Funk, after stepping out of his

patrol car and approaching plaintiff from behind, he "had still

not been able to verify if this was in fact Cuman Fearrington."

    Indeed, the majority specifically notes that Officer Funk

claimed that plaintiff concealed his face continuously and that

Officer Funk acknowledged that without seeing plaintiff's face,

he could not be certain that plaintiff was Mr. Fearrington.       I

believe a jury could infer from this evidence that Officer Funk

did not get a clear view of plaintiff's face until after he had

proceeded with the arrest.    A jury could find Officer Funk's

claim that he reasonably mistook plaintiff for Mr. Fearrington
                                  -12-

not credible when Officer Funk claimed both that he could not

see plaintiff's face and that the two men had similar facial

features.

    Also pertinent in this case is whether Officer Funk had

reason to believe that Mr. Fearrington would be present in the

location where plaintiff was arrested, including the proximity

in time and distance of Mr. Fearrington's last known location to

the time and place of plaintiff's arrest.             Here, Officer Funk

indicated only that Mr. Fearrington had evaded arrest in the

"Central Business District" of Chapel Hill earlier that day.

The jury could decide that the fact that Mr. Fearrington was

trying to avoid being arrested somewhere in downtown Chapel Hill

during the day did not make it reasonably likely that he was the

African-American male walking down a main street in front of a

convenience store and restaurant that night.

    In addition, if an officer has any doubt as to whether the

individual is the suspect in the arrest warrant, "the officer

must make immediate reasonable efforts to confirm the suspect's

identity."   Glover, 725 F.2d at 123.        See also Lynch, 94 N.C.

App. at 333, 380 S.E.2d at 399 ("When an officer is unsure of

the identity of a suspect, he must take reasonable steps to

confirm the identity of the individual under suspicion.").

    Here,    while   Officer   Funk   admitted   to   uncertainty   as   to
                                            -13-

plaintiff's identity, he proceeded with the arrest before making

any efforts to confirm plaintiff's identity.                              He did not ask

plaintiff to identify himself until after he had placed him in

handcuffs,     and        when   plaintiff      told    him     that     he    was    not   Mr.

Fearrington         and    Officer      Funk    viewed     his     identification,           he

disregarded     it.         A    reasonable     juror     could     find       that    it   was

unreasonable         to    disregard      the      identification          and       that   the

"verification"        of     plaintiff's       identity       --   and    the       subsequent

search of NCIC for outstanding warrants -- was really an attempt

to cover up the officers' mistake in hopes of manufacturing

probable cause to detain plaintiff.

       While    the        majority     opinion        states      that       "it     was   not

unreasonable for Officer Funk to not believe plaintiff's claim

[that he was not Mr. Fearrington] until he saw identification,"

that    fact    at        most    might    justify        Officer        Funk's       stopping

plaintiff and asking for identification.                        The majority cites no

authority      --    and     I   have     found    none    --      that       authorizes     an

officer, with doubts about the identity of a suspect, to arrest

the individual and ask questions later.

       I believe that the totality of the circumstances in this

case -- based on the evidence viewed in the light most favorable

to plaintiff -- would permit a jury to find that Officer Funk

had not acted reasonably when mistakenly arresting plaintiff.
                                               -14-

Defendant,      however,         contends       that    the    United        States       Supreme

Court's decision in Hill requires a different result.

       In    Hill,     the      United    States       Supreme       Court        held    that      a

mistaken arrest was valid when the officers went to the address

of the suspect and, in that apartment, which had a locked door,

found a person matching the description of the suspect.                                         401

U.S. at 803, 28 L. Ed. 2d at 489, 91 S. Ct. at 1110.                                     Although

the person claimed to be someone else, the Supreme Court noted

that "aliases and false identifications are not uncommon" and

that   the     person      in    the   apartment        did    not       have     a    convincing

explanation regarding how he entered the apartment if he was not

the suspect.         Id.     Further, the person denied knowing about any

firearms being in the house, although a pistol was sitting in

plain view.          Id.     Based on this evidence -- a man matching the

suspect's      description        at     the    suspect's          known    address       --    the

Court concluded that "the officers' mistake was understandable

and the arrest a reasonable response to the situation facing

them at the time."              Id. at 804, 28 L. Ed. 2d at 490, 91 S. Ct.

at 1111.

       Here,    in    contrast,        the     arrest    did       not     take       place    at   a

location where Mr. Fearrington was known to be, the evidence is

not specific regarding the degree to which plaintiff matched Mr.

Fearrington's         description         as     known        to     Officer          Funk,     and
                                       -15-

plaintiff's       explanation   for    why    he     was    walking   up   Rosemary

Street at that particular time was not lacking in credibility.

Moreover, plaintiff's evidence indicated that he did not act

suspiciously.

      I find this case more analogous to Frazier, 318 N.W.2d at

44,   in    which    the   Minnesota    Supreme       Court    concluded     that   a

mistaken arrest was unreasonable.                 In Frazier, the officers saw

the defendant at night outside a bar where the actual suspect

had been seen within the previous three days.                         The officers

viewed her from 500 feet away in a dimly lit area, decided that

it was the suspect, and arrested her.                      The Minnesota Supreme

Court concluded that "[g]iven the hastiness of the deputies in

concluding that defendant was [the intended arrestee], given the

evidence of the defendant's differing appearance, and given the

fact that the arrest did not occur at [the intended arrestee's]

residence or even at a place which police reliably knew she

frequented, we conclude that the deputies acted unreasonably in

believing that defendant was [the intended arrestee]."                     Id.

      The    Minnesota     Supreme     Court,      therefore,     concluded      "the

arrest     was    illegal."     Id.      I    find    Frazier     persuasive      and

supportive of a conclusion that plaintiff, in this case, has

presented        sufficient   evidence       to    raise     an   issue    of    fact

regarding whether his arrest was valid.
                                     -16-

     While I have not found -- and the parties have not cited --

any North Carolina case specifically addressing the issue in

this case, this Court's decision in State v. Cooper, 186 N.C.

App. 100, 649 S.E.2d 664 (2007), supports my conclusion that

plaintiff's   evidence     shows    that    Officer    Funk   lacked   probable

cause to arrest plaintiff.          The issue in Cooper was whether a

police officer had reasonable suspicion to stop an individual he

suspected of robbing a convenience store.

     In Cooper, the officer heard a report that there was a

convenience store robbery committed by a black male.                     Id. at

101, 649 S.E.2d at 665.       The officer knew that there was a path

running from the convenience store to Lake Ridge Drive, and five

to   10   minutes    after   the     robbery,    the    officer    found    the

defendant, a black male, walking down Lake Ridge Drive near the

path.     Id. at 102, 649 S.E.2d at 665-66.             The officer stopped

and frisked the defendant.         Id., 649 S.E.2d at 666.

     This Court found that due to the vague description of the

suspect as a "black male," lack of information that the robber

had fled in the direction of the path, and the fact that the

defendant    did    not   engage   in   suspicious      behavior   and     fully

cooperated with the officer, the officer did not have reasonable

suspicion to believe that the individual he saw was the robber.

Id. at 107, 649 S.E.2d at 669.          The Court explained that to hold
                                             -17-

otherwise     would       be    to    hold   that     "police,      in    the    time     frame

immediately following a robbery committed by a black male, could

stop any black male found within a quarter of a mile of the

robbery."     Id.

       Similarly, here, a jury could reasonably infer from the

lack     of   evidence         presented      by    Officer      Funk      regarding        his

knowledge     of    Mr.        Fearrington's       appearance       that       Officer     Funk

suspected plaintiff could be Mr. Fearrington merely because he

was a black man walking in the vicinity of the general area

where Mr. Fearrington had evaded arrest earlier in the day.                                  As

established by Cooper, these facts would be insufficient to show

reasonable suspicion to justify an investigatory stop, much less

an arrest.        Id.     See State v. Peele, 196 N.C. App. 668, 670, 675

S.E.2d     682,     685    (2009)       ("Reasonable         suspicion          is   a    'less

demanding standard than probable cause and requires a showing

considerably        less        than     preponderance         of        the     evidence.'"

(quoting State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439

(2008))).

       Officer      Funk        and    the    majority,       however,          claim      that

plaintiff     was       intentionally        hiding    his   face,       ignored         Officer

Funk's repeated requests to stop, increased his pace of walking,

and had unspecified similar facial features to Mr. Fearrington.

In making this argument, the majority and defendant are viewing
                                       -18-

the    evidence   in   the   light     most   favorable      to    Officer   Funk,

contrary to the proper standard of review for summary judgment.

We are required to accept as true plaintiff's account that he

did not hide his face, but merely scratched his head; that he

never increased his walking pace; and that he stopped as soon as

he realized that Officer Funk was talking to him.

       The majority, nonetheless, points to Lynch as establishing

that   photographs     suggesting      that   two    men    looked    similar   is

sufficient for a mistaken arrest, especially if the officer then

attempts to verify the arrestee's identity after the arrest.

This Court, however, specifically noted in Lynch that it was not

providing any guidance as to how the Court should determine the

reasonableness of a mistaken identity arrest: "Under the facts

of this case, we need not decide whether the officer's initial

mistake   justified    an    arrest;    it    was    at    least   sufficient   to

establish a reasonable basis to stop defendant and require him

to identify himself."        94 N.C. App. at 333, 380 S.E.2d at 399.

The Court proceeded to say, with respect to an investigatory

stop, that "[w]hen an officer is unsure of the identity of a

suspect, he must take reasonable steps to confirm the identity

of the individual under suspicion."            Id.

       Contrary to the majority opinion's assertion, nothing in

Lynch suggests that a mistaken identity arrest is reasonable so
                                        -19-

long as the officers use diligence to confirm the identity of

the   individual    after        initiating    the      arrest.     The   majority

misreads    Lynch    when        it   states   that      "after   the     defendant

attempted to flee, officers were then authorized to arrest the

defendant   in   order      to    'ascertain      his    identity.'"      (Quoting

Lynch, 94 N.C. App. at 333, 380 S.E.2d at 399.)                   In Lynch, after

upholding the stop of the defendant as constitutional, the Court

then concluded that the arrest was permitted -- not to discover

the defendant's identity -- but because the defendant actually

fled:   "Because    defendant         had   not    identified     himself     [when

stopped], the officers had no choice but to apprehend him in

order to ascertain his identity."                 Lynch, 94 N.C. at 333, 380

S.E.2d at 399.      Nothing in Lynch suggests that it is appropriate

to arrest someone who has not fled and who has not yet been

asked to identify himself.

      The majority's holding, in effect, allows police officers

to proceed with an arrest based upon less than probable cause

and arrest first, investigate later.                 I believe that this is an

improper interpretation of the rule adopted by this Court in

Robinson v. City of Winston-Salem, 34 N.C. App. 401, 238 S.E.2d

628 (1977).

      Robinson addressed the question "whether in an action for

false arrest or false imprisonment the officer who arrests the
                                         -20-

wrong person is strictly liable or is liable only in the absence

of reasonable diligence."              Id. at 406, 238 S.E.2d at 631.             The

Court in     Robinson     acknowledged that the rule adopted by the

majority of courts is that "the officer will not be liable for

false   imprisonment        for   mistaking      the    identity    of   the   person

named   in   a    warrant    if   he    exercises      reasonable    diligence     to

ascertain the identity correctly before he serves the warrant."

Id.   (emphasis     added).        Noting       that    the   alternative      strict

liability     approach      "imposes     an   unreasonable      burden    upon    the

officer who is both careful and diligent," Robinson adopted the

majority rule.      Id.

      The majority in this case asserts that "when the officer

must use reasonable diligence is not specifically enunciated in

Robinson."       (Emphasis added.)        In support of this assertion, the

majority     opinion     plucks   an    isolated       quotation   from   Robinson,

disregarding the Court's primary articulation of the majority

rule quoted above and disregarding the cases relied upon by the

Court as support for the rule.                The majority rule as initially

articulated in Robinson, expressly and unambiguously states that

an officer must exercise reasonable diligence "before he serves

the warrant."      Id.

      The Court then, "[f]or examples of cases following this

rule" refers to three decisions from other jurisdictions.                        Each
                                            -21-

of   those    decisions        expressly       holds      that       the       officer      must

exercise     due    diligence       prior    to     effecting        the       arrest.        See

Miller v. Fano, 134 Cal. 103, 109, 66 P. 183, 185 (1901) (noting

an officer "owes a duty to the public and to the party about to

be arrested" and "should use prudence and diligence to find out

if the party arrested is the party described in [the] warrant"

(emphasis added)), disapproved of by Hagberg v. California Fed.

Bank FSB, 32 Cal. 4th 350, 81 P.3d 244 (2004); Wallner v. Fid. &

Deposit Co. of Maryland, 253 Wis. 66, 70, 33 N.W.2d 215, 217

(1948)    ("The     officer     is    liable       if    he    fails      to    take       proper

precaution     to    ascertain        the   right       person,      or    if    he      refuses

information offered that would have disclosed his mistake, or if

he detains the person an undue length of time without taking

proper     steps    to    establish         his    identity.");            State      ex    rel.

Anderson v. Evatt, 63 Tenn. App. 322, 328, 471 S.W.2d 949, 952

(1971) (finding evidence sufficient to support jury's finding

officers     guilty      of   "gross     negligence           in   failing       to    make    an

additional investigation or inquiry as to the true identity of

plaintiff before placing him under arrest" (emphasis added)).

     In      concluding        that     issues      of    fact       precluded           summary

judgment     regarding        whether    the      defendant        police      officers       had

exercised     due     care     in     arresting         the    plaintiff,          the     Court

specifically pointed to evidence -- including contradictions in
                                          -22-

the defendants' evidence and omissions on key factors in the

defendants'       affidavits      --   regarding    the   lack     of    efforts     to

determine whether the plaintiff was the individual named in the

warrant prior to arresting the plaintiff.                    Robinson, 34 N.C.

App. at 407-08, 238 S.E.2d at 632.                 The Court did not discuss

what the officers could have done post-arrest.                          Instead, the

Court noted as additional evidence of liability that "even after

the    officers    knew    that    they    had   arrested   the    wrong     person,

plaintiff was still held in jail overnight before he was allowed

to go free."        Id. at 408, 238 S.E.2d at 632.               In other words,

the defendants could be held liable for further detaining the

plaintiff after they knew of the mistaken arrest.

       Nothing in        Robinson suggests that an officer may                   -- as

occurred here -- arrest and then conduct the due diligence after

the fact.      The Court's purpose in adopting the due diligence

rule    in   Robinson     was   to     ensure    that   officers    who    are     both

"careful and diligent" will not be held civilly liable for an

unlawful arrest. Id. at 406, 238 S.E.2d at 631.                    The majority's

interpretation of Robinson would allow an officer who was not

"careful and diligent" in ascertaining the arrestee's identity

prior to initiating an arrest to avoid liability so long as he

later uses "due diligence" to confirm the identity afterwards.

See    id.     I    do    not   believe     that    the   majority       opinion    is
                                        -23-

consistent with either the express holding in Robinson or its

reasoning.

       Here,   while       Officer   Funk   admitted    to    uncertainty    as     to

plaintiff's identity, he proceeded with the arrest before making

any efforts to confirm plaintiff's identity.                    He did not ask

plaintiff to identify himself until after he had placed him in

handcuffs      and    declared     plaintiff    was   under    arrest,     and    when

plaintiff told him that he was not Mr. Fearrington and Officer

Funk    viewed       his   identification,      he    disregarded    it.         While

Officer Funk may have had reasonable suspicion to stop plaintiff

and ask him to identify himself based on what he knew and should

have then conducted due diligence before arresting plaintiff,

Lynch and Robinson do not support the majority's assumption that

the same level of knowledge -- without any due diligence in

verifying plaintiff's identity -- is sufficient to support both

an arrest and an investigatory stop.

       The majority claims that Robinson is distinguishable on the

facts.    The "facts" on which the majority relies are, however,

either unsupported by the record or represent Officer Funk's

version of what occurred.              Contrary to the majority opinion's

assertion, there is no evidence that Officer Funk "knew" Mr.

Fearrington,         plaintiff's     evidence   indicated     that   he    was    not

about to flee, and according to plaintiff, Officer Funk did not
                                            -24-

have    to    order    him     to   stop    "several       times,"    as    the       majority

states,      but     rather    he    stopped     immediately        after       he    realized

Officer       Funk    was     talking      to   him.       Further,       the    majority's

purported distinction of Robinson does not explain why Officer

Funk, in this case, could not have stopped plaintiff and asked

for his identification prior to arresting him.

       Moreover,       the     majority's       reasoning        cannot    be    reconciled

with this State's choice not to enact a "stop and identify"

statute.        The United States Supreme Court in Hiibel v. Sixth

Judicial Dist. Court of Nevada, 542 U.S. 177, 187, 159 L. Ed. 2d

292, 303, 124 S. Ct. 2451, 2459 (2004), recognized that under

the Fourth Amendment, an individual is not required to answer an

officer's questions or identify himself during an investigative

stop.         Nevertheless,         a   State      "stop    and     identify"         statute

"requiring a suspect to disclose his name in the course of a

valid        Terry     stop     is      consistent         with      Fourth          Amendment

prohibitions against unreasonable searches and seizures."                                  Id.

at 188, 159 L. Ed. 2d. at 304, 124 S. Ct. at 2459.

       North       Carolina,        however,     does      not    have     a     "stop     and

identify" statute.             Therefore, although Officer Funk could have

asked plaintiff to identify himself, he could not have compelled

plaintiff to do so.             See In re D.B., 214 N.C. App. 489, 495-96,

714 S.E.2d 522, 526-527 (2011) (noting North Carolina does not
                                                -25-

have a "stop and identify" statute and holding that during a

Terry stop, an officer is not permitted to search for a person's

identification           in   order       to    protect        himself     or   to     seize   an

identification           card,      but     may     ask    for    identification).             The

majority,         however,     holds        that    it    is    within    the    scope    of   an

officer's          duty       to      arrest        a     person        and     then     demand

identification.

    Further,            Officer      Funk      should      not    have    been       allowed   to

extend       a    mistaken         arrest      to   investigate         plaintiff,       without

reasonable suspicion of any criminal activity, to see if he

could justify the arrest after the fact.                               As the United States

Supreme Court has explained:

                 The scope of the intrusion permitted will
                 vary to some extent with the particular
                 facts and circumstances of each case. This
                 much, however, is clear: an investigative
                 detention must be temporary and last no
                 longer than is necessary to effectuate the
                 purpose of the stop.         Similarly, the
                 investigative methods employed should be the
                 least intrusive means reasonably available
                 to verify or dispel the officer's suspicion
                 in a short period of time.

Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 103 S.

Ct. 1319, 1325-26 (1983).                      Certainly, if an investigative stop

must end as soon as its purpose is completed, then an arrest

should cease as soon as the officers learn that it was mistaken.

Since    I       know   of    no    authority       that       would    allow    a   mistakenly
                                             -26-

arrested person, not subject to a traffic stop, to be detained

to conduct a database search for other charges, Officer Funk

should have released plaintiff as soon as he knew he had made a

mistake.

       In sum, I would hold that the evidence is sufficient to

support the conclusion that defendant acted contrary to his duty

by arresting plaintiff without probable cause.                             Plaintiff must

also    show,     however,      that    defendant          acted       wantonly       and   with

intent to injure.             "[E]vidence of constructive intent to injure

may    be     allowed    to    support       the    malice       exception       to    [public

official] immunity."            Wilcox, ___ N.C. App. at ___, 730 S.E.2d

at     232.      "[A]     showing       of     mere       reckless       indifference         is

insufficient, and a plaintiff seeking to prove malice based on

constructive          intent   to     injure       must    show    that    the        level   of

recklessness of the officer's action was so great as to warrant

a finding equivalent in spirit to actual intent."                               Id.     Such a

showing       would    necessarily      also       satisfy       the    first    requirement

that the defendant act wantonly.                    See In re Grad, 312 N.C. App.

at 313, 321 S.E.2d at 890-91 ("'An act is wanton when it is done

of    wicked     purpose,       or    when     done       needlessly,      manifesting         a

reckless       indifference      to    the     rights       of    others.'"           (quoting

Givens      v.   Sellars,       273    N.C.     44,       50,    159    S.E.2d    530,        535

(1968))).
                                           -27-

       With regard to the intent to injure prong of malice, the

Fourth Circuit has noted that "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."          Russ v. Causey, 468 F. App'x 267, 276 (4th

Cir.   2012)    (finding        that   officer's          conduct    in   executing     an

arrest warrant at funeral demonstrates an intent to injure).

Additionally,      in     the    context    of       a    civil    suit   for   malicious

prosecution,       our    Supreme      Court      has     noted    that   it    is    "well

settled that malice may be inferred from want of probable cause,

e.g., as where there was a reckless disregard of the rights of

others in proceeding without probable cause."                         Cook v. Lanier,

267 N.C. 166, 170, 147 S.E.2d 910, 914 (1966).

       I   would   find    that     there      are       further    questions    of    fact

regarding whether defendant acted wantonly and with intent to

injure plaintiff.           The injury in this case is an injury to

plaintiff's Fourth Amendment right to be free from unreasonable

search and seizure.             I believe that the evidence is sufficient

to allow a jury to find that Officer Funk acted with an actual

intent     to   unlawfully        detain       plaintiff          while   Officer     Funk

attempted to manufacture after-the-fact justification for the

arrest.

       The majority dismisses any claim of an intent to injure,
                                           -28-

reasoning: "Believing plaintiff was someone else who had arrest

warrants issued against him and had evaded police earlier that

day, Officer Funk seized plaintiff while confirming his belief."

This        assertion        underscores        the    majority's        merging      of

investigatory stops and arrests.                  Controlling authority required

Officer Funk to attempt to "confirm[] his belief" that plaintiff

was Mr. Fearrington prior to arresting him.

       In addition, according to plaintiff's verified complaint

and deposition, Officer Funk spoke to plaintiff sarcastically

and disrespectfully in response to plaintiff's assertion that he

was    a    business    owner.      The     evidence     also    shows    that     after

plaintiff told Officer Funk that he was not Mr. Fearrington and

Officer      Funk     viewed    plaintiff's       identification,       Officer     Funk

continued        to   keep    plaintiff    in     handcuffs     while    his   partner

contacted        communications     to     "verify"     his     identification       and

gather further information that might justify an arrest.                            When

communications verified plaintiff's identification and could not

find       any   outstanding     warrants       that   would    justify    the     stop,

Officer Funk removed the handcuffs and left without apologizing

to plaintiff.

       Under these circumstances, a reasonable juror could infer

that Officer Funk            acted with a level of recklessness toward

plaintiff's rights equivalent in spirit to an actual intent to
                                              -29-

injure, as required by Wilcox.                       See Walker v. Briley, 140 F.

Supp.2d 1249, 1263 (N.D. Ala. 2001) (plaintiff made sufficient

showing of malice to survive motion for summary judgment on

immunity grounds where "[t]he evidence, viewed most favorably to

[plaintiff], suggest[ed] that [police officer] had no grounds to

believe    [plaintiff]            had   committed       any   offense     whatsoever        but

rather simply did not like [plaintiff] questioning his authority

or suggesting racist motivations").

      Unlike the doctrine of qualified immunity in federal cases,

which requires the court to examine the objective reasonableness

of   an   official's         action,        "[i]mmunity       of    public   officials       to

state     law    claims       .    .    .    involves     a        determination     of     the

subjective       state       of    mind      of   the    governmental        actor,       i.e.,

whether his actions were corrupt or malicious."                                 Andrews v.

Crump, 144 N.C. App. 68, 76, 547 S.E.2d 117, 123 (2001).                                    We

must "determine the defendants' actual knowledge or intentions

regarding the violation of plaintiffs' rights."                           Id. at 77, 547

S.E.2d at 123.               In   Andrews, plaintiff's allegation that the

defendants acted with the knowledge that the act was unlawful

and in violation of plaintiff's rights was sufficient to create

an   issue      of    fact    regarding       whether     the       official    acted      with

malice.      Id. (observing that "defendants knew [plaintiff] had no

involvement          in   criminal      activity,       yet    proceeded       to   file    the
                                             -30-

liens against him anyway").

       There are discrepancies in Officer Funk's affidavit, the

radio log from that night, and the incident report prepared two

weeks later, only after an inquiry by the NAACP, and unsigned by

Officer Funk.          These discrepancies, among other things, attempt

to shorten the time period that plaintiff was detained.                         If the

jury    chooses       to   believe     plaintiff's      testimony     regarding     the

length    of    the    detention,       it    could   find   that     Officer   Funk's

attempt to hide how long the detention lasted was evidence that

the continued detention was without legitimate justification and

in bad faith.

       Further, the African-American officer who arrived at the

scene of plaintiff's arrest after plaintiff questioned whether

he was stopped because of his race does not appear on either the

radio log or in the incident report as being present.                       Plaintiff

has also presented evidence of comments suggestive of racial

bias.

       This evidence could lead a reasonable juror to conclude

that    Officer    Funk     did   not    act    in    good   faith    and   acted   for

improper       motives     when   he    continued      to    detain    plaintiff     in

handcuffs after seeing plaintiff's identification.                      I would hold

that because the evidence supports a finding that Officer Funk

not only acted without probable cause, but additionally that he
                                     -31-

did so knowingly, this creates a genuine issue of fact as to

whether he acted with intent to injure plaintiff.                         See also

Glenn-Robinson,    140    N.C.     App.   at      626,   538    S.E.2d        at   616

(evidence   that   officer       arrested      plaintiff       without    probable

cause, appeared angry, and grabbed plaintiff's arm sufficient

evidence that officer acted with malice and was not entitled to

summary judgment on the basis of public official immunity).

    I,    therefore,     would   affirm     the    trial     court's     denial    of

Officer   Funk's   motion    for    summary       judgment     based     on    public

official immunity.     Accordingly, I respectfully dissent.
