        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                              September 2015 Term
                                _______________                      FILED
                                                                November 10, 2015
                                                                     released at 3:00 p.m.
                                  No. 14-1113                        RORY L. PERRY II, CLERK

                                _______________                    SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA



                         DEPUTY J.K. MASTON,

                 TYLER COUNTY SHERIFF’S DEPARTMENT,

                        TROOPER S. CURRAN, and

                     WEST VIRGINIA STATE POLICE,

                        Defendants below, Petitioners


                                       v.

                       THOMAS JEFFERSON WAGNER,

                          Plaintiff below, Respondent


      ____________________________________________________________

                  Appeal from the Circuit Court of Tyler County

                    The Honorable David W. Hummel, Judge

                            Civil Action No. 11-C-12


                                  AFFIRMED


      ____________________________________________________________

                         Submitted: September 23, 2015

                           Filed: November 10, 2015


Gary E. Pullin, Esq.                        David A. Jividen, Esq.
Emily L. Lilly, Esq.                        Chad D. Haught, Esq.
Michelle Rae Johnson, Esq.                  Jividen Law Offices, PLLC
Pullin, Fowler, Flanigan,                   Wheeling, West Virginia
Brown & Poe, PLLC                           Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioners



JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “A circuit court’s denial of summary judgment that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the ‘collateral order’ doctrine.” Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679

S.E.2d 660 (2009).

              2.     “A motion for summary judgment should be granted only when it is

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is

not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Cas. & Sur.

Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

              3.     “The ultimate determination of whether qualified or statutory

immunity bars a civil action is one of law for the court to determine. Therefore, unless

there is a bona fide dispute as to the foundational or historical facts that underlie the

immunity determination, the ultimate questions of statutory or qualified immunity are

ripe for summary disposition.” Syllabus Point 1, Hutchison v. City of Huntington, 198

W.Va. 139, 479 S.E.2d 649 (1996).

              4.     “Government officials performing discretionary functions are

shielded from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known. A policeman’s lot is not so unhappy that he must choose between being charged

with dereliction of duty if he does not arrest when he has probable cause, and being




                                             i
mulcted in damages if he does.” Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465

(1987).

              5.     “To the extent that governmental acts or omissions which give rise

to a cause of action fall within the category of discretionary functions, a reviewing court

must determine whether the plaintiff has demonstrated that such acts or omissions are in

violation of clearly established statutory or constitutional rights or laws of which a

reasonable person would have known or are otherwise fraudulent, malicious, or

oppressive in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d

591 (1992). In absence of such a showing, both the State and its officials or employees

charged with such acts or omissions are immune from liability.” Syllabus Point 11,

W.Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014).

              6.     “The subjective motivations of a police officer are not relevant to a

determination of whether qualified immunity exists in connection with allegations of an

unreasonable search and seizure, an unlawful detention, or the use of excessive force.”

Syllabus Point 4, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009).




                                            ii
Justice Ketchum:


              In this appeal from the Circuit Court of Tyler County, a plaintiff contends

that he was improperly arrested by a deputy sheriff and a state trooper. The plaintiff

claims that a reasonable jury could find that the law enforcement officers arrested him

without probable cause to do so, and that they unreasonably used excessive force that

injured him during the arrest, in violation of his constitutional and statutory rights. The

law enforcement officers (and their employers) contend that their actions were protected

by the doctrine of qualified immunity.

              In an order dated September 24, 2014, the circuit court refused to afford the

law enforcement officers qualified immunity and denied the officers’ motion for

summary judgment. The circuit court determined that there were numerous disputes

about the material facts supporting the immunity determination, disputes that should be

resolved by a jury.

              On appeal by the law enforcement officers (and their employers), we too

find substantial questions of material fact exist in the record for jury resolution. As set

forth below, we affirm the circuit court’s order declining to afford the officers qualified

immunity.


                                    I.

                   FACTUAL AND PROCEDURAL BACKGROUND


              Shortly after midnight on Saturday, April 11, 2009, plaintiff Thomas J.

Wagner walked out of Big C’s Lounge in the small town of Middlebourne, West


                                            1

Virginia. Mr. Wagner was then a fifty-year-old, heavy-set, balding boilermaker who

owned the apartment building across from the Tyler County courthouse and owned and

operated a local feed store. Mr. Wagner lived in his apartment building. Both Mr.

Wagner and a bartender say he had two or three beers in the two or three hours he was at

the bar. Both also attested that it was raining when he left.

              Big C’s Lounge is located on Main Street about 70 yards north of Mr.

Wagner’s apartment. The bar is at 212 Main Street; Mr. Wagner’s residence was one

block down at 120 Main Street, across from the courthouse.

              Mr. Wagner walked south on the sidewalk until he reached the intersection

of Main and a crossroad. On Mr. Wagner’s side of Main, the crossroad is named Dodd

Street; on the opposite side of Main, it is called Court Street. Mr. Wagner stopped to

look for traffic before crossing Dodd Street and saw a State Police cruiser parked on

Court Street with two officers inside who were watching him. He contends that he turned

to the police cruiser and asked “[i]f everything was okay” or if something was wrong that

he should be aware of for himself and his tenants.          As Mr. Wagner testified in his

deposition, “There’s the cruiser with the engine running, [head]lights on. Hasn’t budged

an inch since the whole time I get down the street. I own this apartment building right

here (indicating [on map]). My concern is for these people here. Is there something I

should be aware of[?]” When he did not receive a response to his inquiry, Mr. Wagner

“[a]sked again, is everything all right[?]”        Mr. Wagner observed the police cruiser

window come halfway down, but heard no response.



                                              2

              At this point, it began to rain harder. Mr. Wagner says he pulled his

sweatshirt hood up over his head and “hustled down the street” to his residence that was

15 to 20 yards down the sidewalk. As he reached the apartment building, he turned down

a gravel driveway that paralleled the building’s porch.

              The next thing Mr. Wagner recalled was someone “crashing” into his back,

simultaneously grabbing his right arm and slamming his face into the spindles of the

porch railing. As his arm was being pulled behind his back, Mr. Wagner said he felt an

explosion of extreme pain. Mr. Wagner quickly realized that he was being confronted by

the two law enforcement officers he had seen moments before.

              Defendant Joshua Maston, a sheriff’s deputy working for the Tyler County

Sheriff’s Department, was the individual who had pushed and grabbed Mr. Wagner.

Defendant Shaun Curran, a trooper (now corporal) working for the West Virginia State

Police, had been driving the State Police cruiser and helped Deputy Maston handcuff Mr.

Wagner.

              A tenant of the apartment building, Lillian (Burch) Leeson, heard a

commotion and went out on the porch to investigate.         According to her deposition

testimony, Mr. Wagner was pressed up tight to the porch by the officers. She said, “He

couldn’t have moved if he wanted to.” At the same time, she heard Mr. Wagner ask the

officers why they were hurting him. She also heard Mr. Wagner tell the two officers he

lived in the building and was going home. Mrs. Leeson said it was pouring down rain;

when the officers asked Mr. Wagner “why he was running” he replied “that he was trying

to get in out of the rain.” Mrs. Leeson never heard Mr. Wagner yell at the officers.

                                             3

              Mr. Wagner said he believed the officers had broken his arm and asked

them to take him to the hospital. Thereafter, the officers transported him to a hospital

where blood was cleaned from his face. Mr. Wagner also received an injection of pain

medication and an arm sling.     Mr. Wagner then spent the remainder of the night in a

regional jail before appearing before a magistrate in the morning.

              Subsequent medical testing revealed that Mr. Wagner had suffered a

complete tear of the common extensor tendon and radial collateral ligament in his right

elbow. He later underwent reconstructive surgery on his elbow with an allograft cadaver

Achilles tendon, and healed wearing a cast and elbow brace.

              Deputy Maston and Trooper Curran offer an account of the arrest that

conflicts with that of Mr. Wagner. Additionally, factual differences exist between the

story told by Deputy Maston and the one told by Trooper Curran, and between each

officer’s written statement made shortly after the arrest and the officer’s later deposition

testimony.

              Deputy Maston and Trooper Curran received a call at 12:07 a.m. of an

altercation at 301 Main Street in Middlebourne, about a block north of Big C’s Lounge.

They responded in Trooper Curran’s police cruiser with Deputy Maston riding as a

passenger. Upon arriving at the scene they found no altercation and no people. By 12:19

a.m., the officers told the dispatcher they had cleared the scene and found nothing.

However, as the officers drove south down Main Street they noticed a man and woman

leaving Big C’s Lounge, in an intoxicated state, walking toward a vehicle. Trooper

Curran turned onto Court Street, turned around, and parked in a position to watch Big C’s

                                             4

Lounge and see if the intoxicated couple attempted to drive the vehicle.1 The intoxicated

couple, likely seeing the police cruiser, then walked back into the bar.

              Several minutes later, Mr. Wagner walked out of Big C’s Lounge. Deputy

Maston “had a pretty good idea [] from the physical features” that it was Mr. Wagner,

and “[f]or sure I knew who it was when he got to the corner” of Dodd and Main Street.

Mr. Wagner’s sister was employed as a Tyler County magistrate assistant, and his brother

owned a local medical supply business. Deputy Maston had exchanged pleasantries with

Mr. Wagner in the courthouse (when Mr. Wagner visited his sister) and around town on a

number of occasions, and never knew him to be violent or a danger to others. Deputy

Maston said to Trooper Curran, “I believe that’s Mr. Wagner.” Trooper Curran testified

that he too recognized Mr. Wagner from talking to him at the magistrate court but was

not as familiar with him as Deputy Maston.

              Trooper Curran’s written report described Mr. Walker as “walking” from

the bar to the intersection of Dodd and Main Streets, and his criminal complaint said Mr.

Walker was “traveling on foot south along the sidewalk.” Only Deputy Maston’s report

said he was “staggering.” However, neither officer had any intention of stopping or

arresting him. Both officers agree that Mr. Wagner stopped to look for traffic, but then

turned toward the police cruiser, raised his arms, and said something. The officers


              1
                A written report by a State Police supervisory trooper gives a different
reason for why Trooper Curran parked his cruiser: “TFC Curran stated that he did not
see any fight in Middlebourne along [M]ain [S]treet. He decided to park his vehicle and
see if anyone came walking down the street or if the victim came to his cruiser.”


                                             5

testified they heard sound but could not understand what Mr. Wagner was saying because

their windows were up, so Trooper Curran rolled down his window. Deputy Maston

wrote that Mr. Wagner “yelled if we need anything,” but Trooper Curran said he heard

Mr. Wagner “shouting profanities and acting in a manner to provoke an altercation.”

Again, at this point the officers said they had no intention of stopping or arresting Mr.

Wagner.

             The officers say that Trooper Curran told Mr. Wagner to go home,2 and

both agree the trooper had to yell in an attempt for Mr. Wagner to hear him. The officers

assert that Mr. Wagner yelled something back and threw his arms up in the air. Trooper

Curran may have again told Mr. Wagner to go home. According to the officers, Mr.

Wagner did not move and yelled something toward the cruiser. Trooper Curran testified

to clearly hearing obscenities and immediately telling Deputy Maston what he heard;

Deputy Maston says the trooper said nothing about hearing obscenities until several days

later.

             Next, Trooper Curran allegedly told Mr. Wagner to “stay right there,” but

again both officers testified they had no intention of stopping or arresting him.3 Mr.



             2
                 Deputy Maston’s report indicated that “Trooper Curran advised [Mr.
Wagner] nothing was needed and go home,” at which point Mr. Wagner “threw his arms
up in the air and yelled something else.” Trooper Curran testified he “told [Mr. Wagner]
to go to his residence or [] get off the street,” but Mr. Wagner did not move.
             3
                Deputy Maston described why he had no intention of arresting Mr.
Wagner at that point in time:

                                                                         (continued . . .)
                                           6

Wagner, however, began to jog or run south down the sidewalk. At this point, the

officers decided to stop Mr. Wagner because, as Deputy Maston said, “Whenever

somebody starts running from you after we tell them to stay there, then something’s not

right.” Trooper Curran decided to arrest Mr. Wagner “when he started to run” because,

he said, “Innocent people don’t run.”

             Trooper Curran immediately drove his police cruiser left onto Main Street.

However, the trooper did not activate his lights or siren, actions that would have

automatically triggered an in-car audio and video system to start recording. The trooper

also did not manually activate the audiovisual recording system. According to a written

State Police policy, the recording system “shall be used for the purposes of accurately

documenting the events, actions, conditions and statements made during . . . arrests,” and

“shall remain activated from the time that a [trooper] initiates contact with a traffic

violator or other offender / suspect until such time as the violator has been released or

placed in custody.”




             Q.     . . . At this point, did you believe that Mr. Wagner was
             going to be under arrest, or were you just going to talk to him
             as he was going on?

             A.     At this point in time, actually, we knew who he was,
             we’re friends with his sister due to the fact that we work with
             her, along those lines, not outside, social . . . and we would
             have got him just to his house or wherever he needed to go to
             get him out of the public view and get it over with. No, we
             didn’t want to arrest him at that time.


                                            7

              Deputy Maston jumped out of the cruiser and began chasing Mr. Wagner

down the street. Deputy Maston says he told Mr. Wagner to stop, but that seemed to

make him run faster. As they reached the apartment complex, Deputy Maston was able

to pin Mr. Wagner against the covered porch railing. Deputy Maston testified Mr.

Wagner was holding his hands in front of his body, so the deputy used a wristlock that he

was taught at the West Virginia State Police Academy to gain control of Mr. Wagner’s

hands. The officers contend Mr. Wagner was resisting Deputy Wagner’s efforts, and was

screaming and cussing. Once Deputy Wagner gained control of Mr. Wagner’s right arm,

Trooper Curran restrained the left arm when he reached the porch. Still, the officers

assert Mr. Wagner continued to resist before he could be handcuffed.

              Once Mr. Wagner was restrained, the officers say he refused to answer

questions until he received medical treatment and questioned the “officers’ reasoning for

attempting to stop him.” However, after Mr. Wagner was handcuffed, the officers could

smell an alcoholic beverage on his breath. They also noted his speech was slurred and

his eyes red and glassy.

              When Mr. Wagner complained of arm pain, the officers immediately

transported him to a nearby hospital. Hospital medical personnel noted a strong smell of

alcohol on the plaintiff’s breath. Mr. Wagner’s sister also said he appeared intoxicated

when she arrived at the hospital.

              A senior, supervisory trooper was called to the hospital to conduct a use of

force investigation, and he too noted a strong odor of alcohol on Mr. Wagner’s breath.

He asked Mr. Wagner if he wished to give a statement “on how he came into contact with

                                            8

the officers that had arrested him.” Mr. Wagner told the supervisory trooper he “was not

qualified to take his statement and he did not want to talk” to him. The supervisory

trooper also spoke with Trooper Curran and Deputy Maston, and later drafted a report

(titled “Response to Resistance and Aggression – Hands On”) concluding that the use of

force against Mr. Wagner complied with department policy and procedures.

             The ostensible reasons for Mr. Wagner’s arrest shifted, from the time he

was handcuffed until he was formally charged. Trooper Curran stated in his deposition

that, initially, he orally advised Mr. Wagner that he was under arrest for two offenses:

fleeing from a police officer on foot and disturbing the peace. Deputy Maston’s written

report describing the arrest said Mr. Wagner was advised he was being arrested for

fleeing on foot and for public intoxication. Trooper Curran’s written report expands

those charges to four, and said that Mr. Wagner’s actions led him “to be arrested and

charged with Public Intoxication, Disturbing the peace, fleeing on foot, and refusal of a

PBT.”4

             Sometime on April 11, 2009, after Mr. Walker was transported from the

hospital to the regional jail, Trooper Curran filed a criminal complaint in the Magistrate

Court of Tyler County. The criminal complaint formally stated four charges against Mr.




             4
                 Trooper Curran’s mention of a “refusal of a PBT” means a preliminary
breath test for alcohol. However, a breath test is only legally required when a defendant
is suspected of driving a vehicle under the influence of alcoholic beverages. Trooper
Curran admitted this was a mistake, and he never charged Mr. Wagner with this offense.


                                            9

Wagner: public intoxication; disturbing the peace; fleeing on foot; and a new offense,

obstructing and resisting an officer.

              The prosecutor,5 however, did not prosecute the charges. When the court

issued a rule for the prosecutor to show cause for why the charges were not being

pursued, the prosecutor did not respond. All four criminal charges were dismissed with

prejudice on September 22, 2010.

              On March 31, 2011, Mr. Wagner filed the instant civil suit seeking

damages against Deputy Maston and Trooper Curran, as well as their respective

employers, the Tyler County Sheriff’s Department and the West Virginia State Police.

The complaint generally alleged that the officers, in the scope of their employment,

worked together to intentionally, recklessly, and/or negligently attack, assault and/or

batter the plaintiff and to intentionally inflict emotional distress. The complaint also

alleged that the two employers had failed to properly hire, train, discipline, and/or

reprimand the officers, and had failed to adopt policies and customs to prevent similar

conduct. Lastly, Mr. Wagner’s complaint alleged that the acts and omissions of the

defendants violated his rights under the West Virginia Constitution.6


              5
                 Prosecution of the charges was assigned to a special prosecutor, Judith
McCullough, because the Tyler County Prosecutor had a conflict of interest arising from
his rental of a building from Mr. Wagner.
              6
               The plaintiff’s complaint also alleged that the officers engaged in abuse of
process and in malicious prosecution. The circuit court dismissed any part of the
plaintiff’s complaint pertaining to “false arrest/imprisonment” by order dated June 5,
2012.


                                            10

              After conducting discovery, the four defendants filed a motion for summary

judgment. The defendants asserted that the officers’ actions in arresting Mr. Wagner

were entitled to qualified immunity, that is, the immunity afforded to government

agencies, officials, and employees for discretionary activities taken in an official

capacity. See Syllabus Point 1, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465

(1987). The defendants argued that Deputy Maston and Trooper Curran acted in an

objectively reasonable and legal manner when, acting within their discretion, they

arrested Mr. Wagner. The State Police and Tyler County Sheriff’s Department argued

that the immunity extended to them as the officers’ employers.

              Mr. Wagner, however, contended that the officers’ actions were not lawful,

and asserted that government agencies and officials can be held liable when their

discretionary conduct violates a person’s established statutory or constitutional rights.

Mr. Wagner argued that the evidence could be read to show that the two officers had

neither an objectively nor a subjectively legitimate reason to detain Mr. Wagner as he

was walking down the street. The officers repeatedly said they had no reason or intent to

stop him. It was only when Mr. Wagner began running to his apartment – because, as he

and two other witnesses said, it was raining heavily – that the officers decided to detain

him. And only after he was detained and injured did the officers formulate specific

charges against him, such as for public intoxication. Put succinctly, the plaintiff asserted

that questions of fact about the reasonableness of the defendants’ actions remained for

jury resolution.



                                            11

              In an order entered September 25, 2014, the circuit court denied the

defendants’ motion for summary judgment. The circuit court found that any question

regarding the truthfulness of the witnesses was for jury resolution.              While law

enforcement officers must, on a daily basis, make swift decisions to carry out their duties,

the circuit court noted that those officers have a concomitant responsibility to do so

reasonably and without violating a citizen’s constitutional rights.      The circuit court

therefore declined to afford qualified immunity to the defendants because the record was

“laden with genuine issues of material fact.”7

              The defendants now appeal the circuit court’s summary judgment order

refusing to dismiss the plaintiff’s claims on the ground of qualified immunity.


              7
                We note that the circuit court’s order denying summary judgment contains
few findings of fact and little discussion of the law. “[A] lower court’s factual findings
when ruling on summary judgment—whether denying or granting—must be sufficient to
elucidate to this Court the basis for its ruling.” W.Va. Dep’t of Health & Human Res. v.
Payne, 231 W.Va. 563, 569, 746 S.E.2d 554, 560 (2013). As we said in Syllabus Point 4
of Payne:

                     A circuit court’s order denying summary judgment on
              qualified immunity grounds on the basis of disputed issues of
              material fact must contain sufficient detail to permit
              meaningful appellate review. In particular, the court must
              identify those material facts which are disputed by competent
              evidence and must provide a description of the competing
              evidence or inferences therefrom giving rise to the dispute
              which preclude summary disposition.

See also, Syllabus Point 3, Fayette Cty. Nat’l Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d
232 (1997) (overruled on other grounds by Sostaric v. Marshall, 234 W.Va. 449, 766
S.E.2d 396 (2014)) (“Findings of fact, by necessity, include those facts which the circuit
court finds relevant, determinative of the issues and undisputed.”).


                                            12

                                       II.

                               STANDARD OF REVIEW


              “This Court reviews de novo the denial of a motion for summary judgment,

where such a ruling is properly reviewable by this Court.” Syllabus Point 1, Findley v.

State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). An order denying

a motion for summary judgment on the ground of qualified immunity is just such a

“properly reviewable” order. As we said in Syllabus Point 2 of Robinson v. Pack, 223

W.Va. 828, 679 S.E.2d 660 (2009), “A circuit court’s denial of summary judgment that is

predicated on qualified immunity is an interlocutory ruling which is subject to immediate

appeal under the ‘collateral order’ doctrine.”

              A circuit court should grant summary judgment “only when it is clear that

there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syllabus Point 3, Aetna Cas. & Sur. Co.

v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).               Summary

judgment is proper only “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 the moving party is entitled to a judgment as a matter of

law.” W.Va. R. Civ. P., Rule 56(c) [1998]. “A material fact is one that has the capacity

to sway the outcome of the litigation under the applicable law.” Syllabus Point 5, in part,

Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). In considering the evidence of

record at the summary judgment stage, courts must apply the following guidelines:

              The circuit court’s function at the summary judgment stage is
              not to weigh the evidence and determine the truth of the

                                             13
              matter but to determine whether there is a genuine issue for
              trial. Consequently, we must draw any permissible inference
              from the underlying facts in the most favorable light to the
              party opposing the motion. In assessing the factual record,
              we must grant the nonmoving party the benefit of inferences,
              as credibility determinations, the weighing of the evidence,
              and the drawing of legitimate inferences from the facts are
              jury functions, not those of a judge. Summary judgment
              should be denied even where there is no dispute as to the
              evidentiary facts in the case but only as to the conclusions to
              be drawn therefrom. Similarly, when a party can show that
              demeanor evidence legally could affect the result, summary
              judgment should be denied.

Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995) (citations

and quotations omitted).

              Similarly, we have generally recognized that, “The ultimate determination

of whether qualified or statutory immunity bars a civil action is one of law for the court

to determine.” Syllabus Point 1, in part, Hutchison v. City of Huntington, 198 W.Va.

139, 479 S.E.2d 649 (1996). Furthermore, a ruling on qualified immunity should be

made early in the proceedings so that the expense of trial is avoided where the defense is

dispositive. First and foremost, qualified immunity is an entitlement not to stand trial,

not merely a defense from liability. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)

(“The entitlement is an immunity from suit rather than a mere defense to liability; and

like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to

trial.”).

              However, if there is a “bona fide dispute as to the foundational or historical

facts that underlie the immunity determination,” the determination of immunity shifts to a

jury. Syllabus Point 1, in part, Hutchison, 198 W.Va. at 144, 479 S.E.2d at 654. “In this

                                             14

connection, it is the jury, not the judge, who must decide the disputed ‘foundational’ or

‘historical’ facts that underlie the immunity determination, but it is solely the prerogative

of the court to make the ultimate legal conclusion.” 198 W.Va. at 149, 479 S.E.2d at 659.

Accordingly, a circuit court may not summarily dispose of a claim on grounds of

qualified or statutory immunity where there is a genuine issue of material fact underlying

the immunity determination.


                                           III.

                                        ANALYSIS


              The defendants – Deputy Maston and Trooper Curran, as well as their

respective employers – assert that the circuit court erred when it found that the two

officers were not entitled to qualified immunity as a matter of law. They assert the

officers had an “articulable suspicion” that motivated them to stop plaintiff Wagner for

questioning. When the officers instructed Mr. Wagner to stop, he ran until he was

stopped after a pursuit. The evidence – from the perspective of the officers, hospital

staff, a supervisory trooper, and the plaintiff’s sister – indicated that the plaintiff’s eyes

were red and glassy, his speech was slurred, he smelled of alcohol, and he appeared

intoxicated. The defendants contend that any fair reading of these factors gave the

officers probable cause to stop and arrest Mr. Wagner.

              The plaintiff, however, asserts that his alleged intoxication did not motivate

his arrest, but was only discovered by the officers after he was improperly detained and

injured. Mr. Wagner contends that the two officers had identified him as he walked in

the rain and knew he was no threat to them or the public. Further, the officers repeatedly

                                             15

testified that they had no intention of stopping or arresting Mr. Wagner as he walked

down the sidewalk, even though one of them may have perceived he was intoxicated.

The trooper said Mr. Wagner “walked” or “traveled,” while the deputy said he

“staggered,” yet neither officer thought Mr. Wagner was so impaired he could not

successfully negotiate the sidewalk or safely cross the street.       Even after the officers

heard Mr. Wagner yell something toward them – the trooper hearing obscenities, the

deputy hearing him ask if everything was alright – the officers again said they had no

facts to support a violation of the law and no reason to stop or arrest Mr. Wagner.

              The plaintiff argues that it was only after Mr. Wagner began to run to his

home that the officers say they thought something was amiss. The plaintiff’s contention

is that the officers arrested him solely because he ran to his home in the rain; that running

is not a crime; and that, under these circumstances, Mr. Wagner’s running could not

reasonably be the sole basis for suspecting he engaged in criminal conduct. Even though

the officers did not perceive Mr. Wagner as a threat, the arrest was accomplished by

pulling Mr. Wagner’s right arm from behind while slamming Mr. Wagner against the

spindles of his porch with such force that it cut and bruised Mr. Wagner’s face and tore

the ligaments and tendons in his right elbow. The plaintiff asserts the evidence suggests a

guilty conscience by the officers because they later assembled a hodgepodge of

unsupportable criminal charges which changed on three different occasions so as to

justify their use of force. These charges were all later dismissed.

              In sum, the plaintiff asserts that genuine questions of material fact exist as

to whether the two officers, through their unwarranted, unreasonable, and unlawful use of

                                             16

excessive force, violated the plaintiff’s clearly established right to be free from unlawful

arrest, seizure and injury under the West Virginia Constitution.8 The plaintiff therefore

argues that the circuit court correctly denied the defendants’ motion for summary

judgment, and correctly declined to afford them qualified immunity as a matter of law.

              After careful review of the record, and as we discuss below, we agree with

the plaintiff’s position that a jury question has been presented relating to qualified

immunity.



                                  A. Qualified Immunity

              Qualified immunity is an immunity afforded to government agencies,

officials, and/or employees for discretionary activities performed in an official capacity.

As we summarized in the Syllabus to Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d

465 (1987), “Government officials performing discretionary functions are shielded from

liability for civil damages insofar as their conduct does not violate clearly established


              8
                The plaintiff cites to five different provisions in Article III of the West
Virginia Constitution to support his case: § 1 (“All men are, by nature, equally free and
independent, and have certain inherent rights, of which, when they enter into a state of
society, they cannot, by any compact, deprive or divest their posterity, namely: The
enjoyment of life and liberty, with the means of acquiring and possessing property, and of
pursuing and obtaining happiness and safety.”); § 3 (“Government is instituted for the
common benefit, protection and security of the people, nation or community. . . .”); § 6
(“The rights of the citizens to be secure in their houses, persons, papers and effects,
against unreasonable searches and seizures, shall not be violated. . . .”); § 7 (“No law
abridging the freedom of speech, or of the press, shall be passed; . . .”); and § 10 (“No
person shall be deprived of life, liberty, or property, without due process of law, and the
judgment of his peers.”).


                                            17

statutory or constitutional rights of which a reasonable person would have known. A

policeman’s lot is not so unhappy that he must choose between being charged with

dereliction of duty if he does not arrest when he has probable cause, and being mulcted in

damages if he does.” See also Syllabus, in part, State v. Chase Sec., Inc., 188 W.Va. 356,

424 S.E.2d 591 (1992) (“A public executive official who is acting within the scope of his

authority . . . is entitled to qualified immunity from personal liability for official acts if

the involved conduct did not violate clearly established laws of which a reasonable

official would have known.”).9 A public officer is entitled to qualified immunity for

discretionary acts, even if committed negligently. As we said in Syllabus Points 4 and 6

of Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995):

                     4. If a public officer is either authorized or required, in
              the exercise of his judgment and discretion, to make a
              decision and to perform acts in the making of that decision,
              and the decision and acts are within the scope of his duty,
              authority, and jurisdiction, he is not liable for negligence or
              other error in the making of that decision, at the suit of a
              private individual claiming to have been damaged thereby.

                                            ....

                     6. In the absence of an insurance contract waiving the
              defense, the doctrine of qualified or official immunity bars a
              claim of mere negligence against a State agency not within
              the purview of the West Virginia Governmental Tort Claims
              and Insurance Reform Act, W.Va.Code § 29–12A–1, et seq.,
              and against an officer of that department acting within the


              9
                In Chase Securities, this Court found the Bennett holding to be overbroad,
and stated that the holding of Bennett applied only to qualified immunity and not absolute
immunity. 188 W.Va. at 361–62 n. 14, 424 S.E.2d at 596–97 n. 14.


                                             18

              scope of his or her employment, with respect to the
              discretionary judgments, decisions, and actions of the officer.

              Under West Virginia law, qualified immunity is more than a defense to

liability because, in many cases, it confers upon governmental bodies and public officials

the right not to be subject to the burden of trial at all. The very heart of qualified

immunity is that it spares the defendant from having to go forward with an inquiry into

the merits of the case.     Unless expressly limited by statute, qualified immunity is

necessarily broad and protects “all but the plainly incompetent or those who knowingly

violate the law.” Hutchison, 198 W.Va. at 148, 479 S.E.2d at 658 (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)). Likewise, “[t]here is no immunity for an executive

official whose acts are fraudulent, malicious, or otherwise oppressive.” Syllabus, in part,

State v. Chase Sec., Inc., 188 W.Va. at 357, 424 S.E.2d at 592.

              The policy considerations driving the qualified immunity doctrine are

straightforward: “public servants exercising their official discretion in the discharge of

their duties cannot live in constant fear of lawsuits, with the concomitant costs to the

public servant and society.” Hutchison, 198 W.Va. at 148, 479 S.E.2d at 658. Such fear

stymies the work of state government, and will “dampen the ardor of all but the most

resolute, or the most irresponsible [public officials], in the unflinching discharge of their

duties.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (quoting Gregoire v. Biddle, 177

F.2d 579, 581 (2nd Cir. 1949). The doctrine “is justified and defined by the functions it

protects and serves, not by the person to whom it attaches.” W.Va. Reg’l Jail & Corr.




                                             19

Facility Auth. v. A.B., 234 W.Va. 492, 507, 766 S.E.2d 751, 766 (2014) (quoting

Forrester v. White, 484 U.S. 219, 227 (1988)).

               Qualified immunity strikes a balance between two competing interests: the

“need to hold public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The purpose of

qualified and statutory immunity is to “avoid excessive disruption of government and

permit the resolution of many insubstantial claims on summary judgment.” Harlow, 457

U.S. at 818.

               A litigant may pierce the shield of qualified immunity by showing that a

government official has violated a clearly established statutory or constitutional right.

“[Q]ualified immunity . . . is not an impenetrable shield that requires toleration of all

manner of constitutional and statutory violations by public officials. Indeed, the only

realistic avenue for vindication of statutory and constitutional guarantees when public

servants abuse their offices is an action for damages.” Hutchison, 198 W.Va. at 148, 479

S.E.2d at 658.

               The test for evaluating if a public official is entitled to qualified immunity,

in the absence of fraudulent, malicious or intentional wrongdoing, is this: would an

objectively reasonable public official, acting from the perspective of the defendant, have

reasonably believed that his or her conduct violated the plaintiff’s clear statutory or

constitutional rights? Stated another way:



                                              20

              Therefore, in the absence of any wilful or intentional
              wrongdoing, to establish whether public officials are entitled
              to qualified immunity, we ask whether an objectively
              reasonable official, situated similarly to the defendant, could
              have believed that his conduct did not violate the plaintiff’s
              constitutional rights, in light of clearly established law and
              the information possessed by the defendant at the time of the
              allegedly wrongful conduct?

Id., 198 W.Va. at 149, 479 S.E.2d at 659 (footnotes omitted).

              Justice Cleckley, writing for the Court in Hutchison, suggested a two-part

test that determines, first, whether the government officer violated a plaintiff’s statutory

or constitutional right, and if so, then second, whether that right was clearly established in

light of the specific context of the case at the time of the events in question. As Justice

Cleckley stated, “When broken down, it can be said that we follow a two-part test: (1)

does the alleged conduct set out a constitutional or statutory violation, and (2) were the

constitutional standards clearly established at the time in question?” Id., 198 W.Va. at

149, 479 S.E.2d at 659 (footnotes omitted). Several years after Hutchison, the United

States Supreme Court adopted a similar two-part approach to qualified immunity:

              A court required to rule upon the qualified immunity issue
              must consider, then, this threshold question: Taken in the
              light most favorable to the party asserting the injury, do the
              facts alleged show the officer’s conduct violated a
              constitutional right? . . .

              If no constitutional right would have been violated were the
              allegations established, there is no necessity for further
              inquiries concerning qualified immunity. On the other hand,
              if a violation could be made out on a favorable view of the
              parties’ submissions, the next, sequential step is to ask
              whether the right was clearly established. This inquiry, it is
              vital to note, must be undertaken in light of the specific
              context of the case, not as a broad general proposition; and it

                                             21
                too serves to advance understanding of the law and to allow
                officers to avoid the burden of trial if qualified immunity is
                applicable.

Saucier v. Katz, 533 U.S. 194, 201 (2001). This approach need not be rigidly applied.

While the Saucier two-step protocol is beneficial and “often, but not always,

advantageous,” trial judges are in the best position to determine (in the fair exercise of

their discretion) the order in which these two factors should be considered “that will best

facilitate the fair and efficient disposition of each case.” Pearson v. Callahan, 555 U.S.

at 242.

                Finally, there is one other guiding concept in assessing if a public agency or

official is entitled to qualified immunity. Both state and federal law leave “no question

that the subjective motivations of a police officer are immaterial to a determination of

whether qualified immunity exists in connection with allegations of unreasonable search

and seizure, unlawful detention, and excessive force.” Robinson, 223 W.Va. at 834, 679

S.E.2d at 666 (2009). See also, Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473 (2015)

(“a pretrial detainee must show only that the force purposely or knowingly used against

him was objectively unreasonable”); Graham v. Connor, 490 U.S. 386, 397 (1989) (“the

question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts

and circumstances confronting them, without regard to their underlying intent or

motivation”).

                We now apply this two-step test to the evidence of record.




                                              22

     (1) Was a constitutional or statutory right violated by the government officer?

              In the first step, we consider whether Deputy Maston and Trooper Curran

could be found to have violated a constitutional or statutory right belonging to Mr.

Wagner. As we recently said in Syllabus Point 11 of A.B:

                     To the extent that governmental acts or omissions
              which give rise to a cause of action fall within the category of
              discretionary functions, a reviewing court must determine
              whether the plaintiff has demonstrated that such acts or
              omissions are in violation of clearly established statutory or
              constitutional rights or laws of which a reasonable person
              would have known or are otherwise fraudulent, malicious, or
              oppressive . . . In absence of such a showing, both the State
              and its officials or employees charged with such acts or
              omissions are immune from liability.

234 W.Va. at 497, 766 S.E.2d at 756.

              The plaintiff, Mr. Wagner, asserts that the officers violated his

constitutional rights. Mr. Wagner argues that the material facts, viewed in the light most

favorable to him as the non-moving party, can reasonably be interpreted as showing the

officers objectively and unreasonably violated his rights to be free from unlawful arrest,

seizure and injury from excessive force.

              Deputy Maston and Trooper Curran, however, assert that the evidence of

record unequivocally and indisputably shows that the officers had a reasonable,

articulable suspicion of criminal mischief, sufficient to validate their stop of Mr. Wagner.

Further, they assert they followed standard arrest procedures, as they were trained to do,

and suggest that any injury to Mr. Wagner was the result of his resisting arrest. The

officers contend that the favorable report of a State Police supervisor, made at the


                                            23

hospital on the night of Mr. Wagner’s arrest and finding that the officers’ use of force

followed department guidelines, establishes that the officers are entitled to qualified

immunity.

              Our reading of the record suggests many factual anomalies that support the

circuit court’s decision to deny summary judgment on the qualified immunity question.

We see numerous factual conflicts in the evidence not only between the plaintiff’s

witnesses and the defendants’ witnesses, but also between the evidence proffered by the

two defendant officers and between each officer’s own contemporaneous written

report(s) and his subsequent deposition testimony.

              Additionally, plaintiff Wagner argues that the officers stopped and arrested

him even though an objectively reasonable officer would have known it was unlawful,

because the facts within the knowledge of the officers did not support the criminal

charges alleged. It is axiomatic that, for an arrest to be lawful, the constitution requires

that it be supported by probable cause. Under our law, “[p]robable cause to make an

arrest without a warrant exists when the facts and the circumstances within the

knowledge of the arresting officers are sufficient to warrant a prudent man in believing

that an offense has been committed or is being committed.” State v. Plantz, 155 W.Va.

24, 24, 180 S.E.2d 614, 616 (1971). See also Michigan v. DeFillippo, 443 U.S. 31, 37

(1979) (“This Court repeatedly has explained that ‘probable cause’ to justify an arrest

means facts and circumstances within the officer’s knowledge that are sufficient to

warrant a prudent person, or one of reasonable caution, in believing, in the circumstances



                                            24

shown, that the suspect has committed, is committing, or is about to commit an

offense.”).

              However, the plaintiff’s expert witness, R. Paul McCauley, Ph.D., testified

that the officers’ own written reports (as well as the criminal complaint) failed to identify

the motivating cause for the arrest, and further failed to identify the factual elements to

support the criminal charges they later filed. For example, the plaintiff asserts that –

before his arrest – the officers had no objective, reasonable evidence to support probable

cause to arrest him for public intoxication. To begin, Deputy Maston and Trooper Curran

repeatedly stated in their depositions that they had no intention to stop or arrest Mr.

Wagner while he was walking down the sidewalk from the bar. Only one officer noted in

his written report, prepared immediately after the arrest, a critical element of the offense:

that Mr. Wagner was “staggering” down the sidewalk. Trooper Curran’s report indicated

the plaintiff was walking, and his statement of facts supporting the criminal complaint

said he was “traveling.” Only after this lawsuit was filed did Trooper Curran testify that

the plaintiff was staggering.    Still, both officers agreed Mr. Wagner stopped at the

intersection to look for traffic before crossing the street, spoke to the officers without

slurring his words, and was able to jog or run. When Mr. Wagner yelled toward the

cruiser, the trooper told Mr. Wagner to go home. As the plaintiff’s expert testified,

              . . . Well, from the time – up until the time the trooper said go
              home, they didn’t have reasonable suspicion to stop [Mr.
              Wagner] or they would have. After that the issue becomes,
              according to – I think the deputy, said that Mr. Wagner began
              to run and at that point they wanted to detain him. As I said
              before, I know of no place where running is against the law.


                                             25
(Emphasis added). Succinctly stated, the officers subjectively admitted their only reason

for stopping Mr. Wagner was that he ran. After Mr. Wagner was detained and injured,

the two officers noted his red eyes and the smell of alcoholic beverages – yet, the officers

did not inform him at that time that he was being arrested and charged with public

intoxication.10

              Another example is found in the charge against Mr. Wagner for disturbing

the peace. The plaintiff argues the officers plainly had no probable cause to arrest him

for that offense.   West Virginia Code § 61-6-1b(a) [2002] provided (in part, with

emphasis added):

                     Any person who, in a public place . . . disturbs the
              peace of others by violent, profane, indecent or boisterous
              conduct or language or by the making of unreasonably loud
              noise that is intended to cause annoyance or alarm to another
              person, and who persists in such conduct after being
              requested to desist by a law-enforcement officer acting in his
              lawful capacity, is guilty of disorderly conduct . . .11

The plaintiff points out that there were no “others” whose peace was disturbed by the

interaction between Mr. Wagner and the officers. The officers identified no people who

were around to hear the interaction and no citizen complained that they were disturbed.

Both the plaintiff’s and the defendants’ experts agreed that for laws concerning disturbing


              10
                West Virginia Code § 60-6-9(a)(1) [1999] provided: “A person shall not:
(1) Appear in a public place in an intoxicated condition[.]” The statute was amended in
2015 to, among other things, change the phrase “shall not” to “may not.”
              11
              West Virginia Code § 61-6-1b was amended by the Legislature in 2015.
No changes were made affecting this appeal.


                                            26

the peace, the term “others” does not include law enforcement officers.12 See generally,

City of Houston v. Hill, 482 U.S. 451, 462-63 (1987).13



              12
                   The plaintiff’s expert, Dr. McCauley, testified:

              [W]hen we’re talking about disorderly and the disturbance to
              the public or to the community, it basically excludes
              policemen. So . . . if somebody is swearing at a policeman
              and acting in a boisterous fashion to offend the dignity of a
              policeman, that is usually not grounds for a disorderly
              conduct.

Similarly, the defendants’ expert, Samuel D. Faulkner, testified:

              Q. . . . I think you said you can swear at an officer as long as
              you’re not physically threatening them.

              A. Yes, sir. As long as other people aren’t there to be
              offended by that.

              Q. Would you agree that police are not considered the public
              for the purposes of a disorderly conduct?

              A. I think that’s correct.

But see France v. Southern Equip. Co., 225 W.Va. 1, 689 S.E.2d 1 (2010) (it is role of
trial judge, and not the parties’ experts, to determine, interpret and apply the law
applicable to a case).
              13
                 The plaintiff’s counsel makes two additional arguments suggesting that
the defendant officers may have had no probable cause to arrest Mr. Wagner for fleeing
on foot or for obstructing an officer.

             Counsel argues that the crime of fleeing on foot, West Virginia Code § 61­
5-17(d) [2001] required a person to “intentionally flee” a law enforcement officer “who is
attempting to make a lawful arrest[.]” The officers admitted they only chased Mr.
Wagner because he ran, not because they were attempting a lawful arrest for any specific
offense. As Trooper Curran said, “Innocent people don’t run,” but otherwise said he had
no idea why Mr. Wagner was running.

                                                                            (continued . . .)
                                               27

              In sum, a jury could fairly conclude that an objectively reasonable law

enforcement officer, situated similarly to the defendant officers, would have believed that

he or she had no probable cause to arrest the plaintiff. Hence, that same officer would

have believed that any arrest of the plaintiff would violate the plaintiff’s constitutional

rights to the enjoyment of life and liberty, to be secure against unreasonable searches and

seizures, or to exercise freedom of speech without abridgement.

              Likewise, a jury could fairly conclude that the defendants used

constitutionally excessive force, because an objectively reasonable law enforcement

officer under similar circumstances would not have used the same type or degree of force

as that used by the defendants toward the plaintiff. The determination of reasonableness

or excessive force in the context of arrests or investigatory stops “is not capable of

precise definition or mechanical application.” State v. Lacy, 196 W.Va. 104, 117, 468

S.E.2d 719, 732 (1996) (quoting Graham, 490 U.S. at 396). There are no per se rules in

the constitutional excessive force context; rather, courts “must still slosh [their] way

through the factbound morass of ‘reasonableness.’” Scott v. Harris, 550 U.S. 372, 383

(2007).

               Plaintiff’s counsel also points out that the officers made no mention of a
charge for obstruction in their written reports. It was only after Mr. Wagner was
interviewed by a supervising trooper at the hospital that the officers decided to charge
him. The plaintiff’s expert construed the situation as “a cover your ass charge, a CYA
and it says if you hurt somebody during an arrest process, cover your ass and make sure
you have a reasonable charge that would justify the use of force.” Further, the charge
was irrelevant to the issue of why the officers stopped and arrested Mr. Wagner in the
first place. The plaintiff contends it can reasonably be construed as an attempt by the
officers to justify their injuries to the plaintiff.


                                            28

              An objective reasonableness standard is used to assess whether an officer’s

actions are excessive, that is, “whether the officers’ actions are ‘objectively reasonable’

in light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation.” City of Saint Albans v. Botkins, 228 W.Va. 393, 399

n.16, 719 S.E.2d 863, 869 n.16 (2011) (quoting Graham, 490 U.S. at 397).

              The proper application of the objective reasonableness standard in an

excessive force case “requires careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The

United States Supreme Court recently offered a more extensive list of things to consider

when weighing the objective reasonableness of an officer’s actions, emphasizing that the

list was not exclusive:

                     Considerations such as the following may bear on the
              reasonableness or unreasonableness of the force used: the
              relationship between the need for the use of force and the
              amount of force used; the extent of the plaintiff’s injury; any
              effort made by the officer to temper or to limit the amount of
              force; the severity of the security problem at issue; the threat
              reasonably perceived by the officer; and whether the plaintiff
              was actively resisting. We do not consider this list to be
              exclusive. We mention these factors only to illustrate the
              types of objective circumstances potentially relevant to a
              determination of excessive force.

Kingsley, 135 S.Ct. at 2473 (citation omitted).

              The defendants assert that the officers’ actions when they arrested plaintiff

Wagner were reasonable and not excessive. The defendants contend that the plaintiff

                                            29

resisted the officers’ attempts to handcuff him, and that the officers used a wristlock

which was taught to them at the State Police Academy in order to effectively pull the

plaintiff’s hands behind his back.     The defendants’ expert testified that a properly

executed wristlock wouldn’t have harmed the plaintiff, and that any injury is usually the

result of how a person resists the technique.

              However, viewed in a light most favorable to the plaintiff, a reasonable

fact-finder could conclude that the officers’ use of force was unreasonable and excessive.

First, we have given careful attention to the facts and circumstances of this case,

particularly the severity of the crimes allegedly at issue. The officers admitted that they

only stopped Mr. Wagner because he ran (and, as they believed, innocent people do not

run). However, presuming the officers legitimately sought to stop him for the later-

charged offenses of public intoxication and disturbing the peace, a reasonable jury could

construe Deputy Maston’s act of slamming Mr. Wagner’s face into a porch while

simultaneously yanking Mr. Wagner’s arm behind his back as excessive. Mr. Wagner’s

facial injuries and injured arm incurred for simply running toward his home in the rain

may be perceived by a jury as severe in light of his perceived offenses. Admittedly, the

officers tempered their use of force as soon as the plaintiff was handcuffed, and even

moved his handcuffs to his front when they promptly transported him to the hospital.

However, these reasonableness elements are better evaluated by the jury.

              Moreover, both officers recognized Mr. Wagner, knew him to be a

respectable and generally harmless citizen, saw that he was not brandishing any weapons,

and saw that he posed no immediate threat to the safety of the officers or others. When

                                                30

the officers began pursuing him down the street, Trooper Curran neglected to activate his

flashing lights, which would have automatically activated the cruiser’s audio and video

recording system. The trooper also did not manually activate the recording system. As

the plaintiff notes, State Police policies require a trooper to use the recording system, and

says it “shall remain activated from the time that a member initiates contact with a traffic

violator or other offender/suspect.”14    A jury could find that the failure to use the

audiovisual recording system further suggests that the officers did not perceive Mr.

Wagner as a threat.

              Finally, whether Mr. Wagner was resisting arrest or attempting to evade

arrest by fleeing on foot presumes both that Mr. Wagner was aware he had committed a

criminal act and that he knew that he was being pursued by the officers. The officers

contend they told Mr. Wagner to stay where he was, and when he ran they pursued him,

again telling him to stop. The evidence, however, equally suggests it was raining such

that the parties had to yell to be heard, and even still had difficulty communicating.

              Examining the totality of the circumstances, and viewing the evidence in

the light most favorable to the non-moving party, a reasonable fact-finder could conclude

that the officers’ use of force was unreasonable and therefore constitutionally excessive.




              14
               The policy is contained in West Virginia State Police Policy 17: In-Car
Audiovisual Recording Equipment.


                                             31

            (2) Was the constitutional or statutory right “clearly established”

              In the second step, we consider whether the constitutional standards Deputy

Maston and Trooper Curran are alleged to have violated were clearly established at the

time of Mr. Wagner’s arrest. This second standard is intended to protect law enforcement

officers from liability for “bad guesses in gray areas” and ensures they will be held liable

only for violating bright-line rules. City of Saint Albans v. Botkins, 228 W.Va. at 402,

719 S.E.2d at 872 (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)

(“qualified immunity should serve to shield law enforcement officers from ‘bad guesses

in gray areas; they are liable for transgressing bright lines.’”)).

              The defendants argue that even if the officers did violate some

constitutional or statutory right belonging to the plaintiff, the officers did not violate any

“clearly established” right. They assert that “the right to make an arrest or investigatory

stop necessarily carries with it the right to use some degree of physical coercion or threat

thereof to effect it.” Graham, 490 U.S. at 396. As support for their argument, the

defendants cite to a qualified immunity case where we found no constitutional violation

occurred when a police officer kneed the plaintiff in the back and struck him in the head

with the butt of his drawn gun. See City of Saint Albans v. Botkins, 228 W.Va. at 396,

719 S.E.2d at 866. The defendants seem to suggest that since Deputy Maston and

Trooper Curran acted with more restraint than the officer in City of Saint Albans, they

could not have understood their actions were unreasonable and they are, therefore,

automatically entitled to immunity.



                                              32

              The City of Saint Albans case is easily distinguishable from this case. The

case began with a heated confrontation between two groups of young men, six men total,

shouting and cursing at one another at 3:00 a.m. in a restaurant parking lot. Two of the

men were carrying objects (a flashlight and a wooden club), and a seventh man was

running toward the scene. The two officers who arrived on the scene quickly ordered the

men to get down on the ground, but the plaintiff failed to fully comply prompting one

officer to aggressively subdue the plaintiff. Id. In this situation, the Court determined the

officers acted reasonably and were entitled to qualified immunity because, acting quickly,

the officers perceived that the young men – two of whom were armed – posed a threat to

each other, to the officers, and to others in the restaurant.   Id., 228 W.Va. at 402, 719

S.E.2d at 872.

              In the context of excessive force cases, the constitutional standard –

reasonableness – is always an exceptionally fact-specific inquiry. Hence, there are two

ways to show a government official’s actions are unreasonable. “A violation [of a

constitutional right] may be clearly established if the violation is so obvious that a

reasonable state actor would know that what they are doing violates the Constitution, or

if a closely analogous case establishes that the conduct is unconstitutional.” Siebert v.

Severino, 256 F.3d 648, 654-55 (7th Cir. 2001) (emphasis added). When the conduct of a

government official “‘is so patently violative of the constitutional right that reasonable

officials would know without guidance from the courts’ that the action was

unconstitutional, closely analogous pre-existing case law is not required to show that the

law is clearly established.” Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994)

                                             33

(quoting Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993)). “If qualified immunity

provided a shield in all novel factual circumstances, officials would rarely, if ever, be

held accountable for their unreasonable violations of the Fourth Amendment.” Mattos v.

Agarano, 661 F.3d 433, 442 (9th Cir. 2011).            “Otherwise, officers would escape

responsibility for the most egregious forms of conduct simply because there was no case

on all fours prohibiting that particular manifestation of unconstitutional conduct.” Deorle

v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001). See also, Anderson v. Creighton, 483

U.S. 635, 640 (1987) (rejecting the notion that officer liability cannot exist “unless the

very action in question has previously been held unlawful”).

              We perceive nothing novel about the facts of the instant case, and the

United States Supreme Court has made “clear that officials can still be on notice that their

conduct violates established law even in novel factual circumstances.” Hope v. Pelzer,

536 U.S. 730, 741 (2002). “That the level of force used must be justified in light of ‘the

severity of the crime at issue,’ the suspect’s flight risk, and the immediacy of the risk

posed by the suspect to the safety of officers and others was the clearly established law

on the night of the incident.” Shekleton v. Eichenberger, 677 F.3d 361, 367 (8th Cir.

2012) (quoting Graham, 490 U.S. at 396).

              Trial courts must, of course, allow “for the fact that police officers are often

forced to make split-second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a particular situation.”

Graham, 490 U.S. at 396-97. But, of course, “a simple statement by an officer that he



                                             34

fears for his safety or the safety of others is not enough; there must be objective factors to

justify such a concern.” Deorle, 272 F.3d at 1281.

              In this case, Deputy Maston and Trooper Curran admit they knew the

plaintiff, saw that he was not brandishing a weapon, knew he had nothing in his hands,

and saw he was alone. The officers knew the plaintiff, his sister and his brother, and

knew the plaintiff was an older, established citizen in the community and not a likely

flight risk. Significantly, the officers admit they were never in fear of danger. Further,

the officers’ own written reports and statements suggest insufficient evidence to show

they had probable cause to think an actual crime had been committed.

              Viewed objectively, there was no tense, uncertain or rapidly-evolving

situation requiring a split-second judgment by the officers. A jury could, on this record,

find that the level of force by the defendant officers was not justified by the crimes

alleged, by the plaintiff’s flight risk, or by the risk to the safety of the officers or others.

A jury could therefore conclude that the defendant officers exercised their power

irresponsibly and unreasonably, and violated the plaintiff’s clear constitutional rights to

be free of unlawful seizure, unlawful arrest, and injury from excessive force.

              Accordingly, we find no error in the circuit court’s decision to deny

qualified immunity to Deputy Maston and Trooper Curran.




                                              35

                          B. Liability of the officers’ employers

              The West Virginia State Police and the Tyler County Sheriff’s Department

appeal the circuit court’s summary judgment order, and assert that they are entitled to

qualified immunity separately from Trooper Curran and Deputy Maston.

              The circuit court properly rejected this qualified immunity argument. The

State Police is not entitled to qualified immunity because that state agency may be

vicariously liable for the wrongful acts of a trooper committed within the scope of the

trooper’s employment. “If the plaintiff identifies a clearly established right or law which

has been violated by the acts or omissions of the State, its agencies, officials, or

employees, or can otherwise identify fraudulent, malicious, or oppressive acts committed

by such official or employee,” and “[i]f the public official or employee was acting within

the scope of his duties, authority, and/or employment,” then “the State and/or its agencies

may be held liable for such acts or omissions under the doctrine of respondeat superior

along with the public official or employee.” Syllabus Point 12, in part, A.B., 234 W.Va.

at 766 S.E.2d at 756. Further, the Tyler County Sheriff’s Department is not entitled to

immunity because, under the Governmental Tort Claims and Insurance Reform Act, a

political subdivision (such as a county sheriff) is statutorily liable for damages “caused

by the negligent performance of acts by their employees while acting within the scope of

employment.” W.Va. Code § 29-12A-4(b)(1), (c)(2) [1986].

              On appeal, the two government agencies argue for the first time that claims

of improper training, retention and supervision of the officers are purely discretionary

activities that are subject to qualified immunity. They base their argument on an opinion

                                            36

issued by this Court on October 31, 2014, just over a month after entry of the circuit

court’s order. Although this argument was not raised in the trial court, we will afford the

argument brief consideration.

              The case forming the basis for the defendant employers’ argument is West

Virginia Regional Jail and Correctional Facility Authority v. A.B., 234 W.Va. 492, 766

S.E.2d 751 (2014).     In that case, we noted “that the broad categories of training,

supervision, and employee retention . . . easily fall within the category of ‘discretionary’

governmental functions.” Id., 234 W.Va. at 514, 766 S.E.2d at 773. Furthermore, we

reaffirmed the principle that (in the absence of an insurance contract waiving the defense)

government officers cannot be held liable for mere negligence in the making of a

discretionary act or omission. 234 W.Va. at 504-05, 766 S.E.2d at 763-64 (quoting

Syllabus Points 4 and 6 of Clark v. Dunn, 195 W.Va. at 273, 465 S.E.2d at 375).

              We went on to say, however, that “the conclusion that employee training,

supervision, and retention are discretionary governmental functions is not necessarily

fatal” to a plaintiff’s claim. 234 W.Va. at 515, 766 S.E.2d at 774. Instead, if the plaintiff

can identify a violation of an established constitutional right or law with respect to an

agency’s training, supervision, or retention policies, then the agency is not entitled to

qualified immunity.

              As we have previously discussed, the record details numerous significant

questions of material fact concerning whether the officers violated clearly established

constitutional rights. Further, the record also suggests that the deliberate or reckless

policies and actions of both the State Police and the Tyler County Sheriff’s Department

                                             37

may have caused or contributed to the violations of these established rights. On this

record, we find no error in the circuit court’s decision to deny qualified immunity to the

State Police or the Tyler County Sheriff’s Department.15


                                         IV.

                                     CONCLUSION


              The circuit court’s September 25, 2014, order properly denied summary

judgment on the ground of qualified immunity because there are genuine issues of

material fact underlying the immunity determination. The order is therefore affirmed.

                                                                                 Affirmed.




              15
                  Deputy Maston asserts one additional argument that was briefed below
but not considered by the circuit court. He argues that the plaintiff’s claims against him
are barred by the Governmental Tort Claims and Insurance Reform Act, unless it is
proven that his actions were “manifestly outside the scope of employment or official
responsibilities,” or “were with malicious purpose, in bad faith, or in a wanton or reckless
manner.” W.Va. Code § 29-12A-5(b)(1)-(3) [1986]. As these are questions for the fact-
finder, we decline to consider this argument.


                                            38

