{ "id": 12133018, "name": "ROSALYN GLENN-ROBINSON, Plaintiff v. ROBERT CHARLES ACKER; CITY OF DURHAM, NORTH CAROLINA, Defendants", "name_abbreviation": "Glenn-Robinson v. Acker", "decision_date": "2000-12-05", "docket_number": "Nos. COA99-894, COA99-1116", "first_page": "606", "last_page": "634", "citations": [ { "type": "official", "cite": "140 N.C. App. 606" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "opinion_index": -1 }, { "cite": "882 F.2d 870", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1820822 ], "year": 1989, "pin_cites": [ { "page": "872" } ], "opinion_index": 0, "case_paths": [ "/f2d/882/0870-01" ] }, { "cite": "522 F.2d 438", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1112023 ], "year": 1975, "pin_cites": [ { "page": "441", "parenthetical": "\"Acts of police officers in the ambit of their personal, private pursuits fall outside of' section 1983." } ], "opinion_index": 0, "case_paths": [ "/f2d/522/0438-01" ] }, { "cite": "76 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "238 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599954 ], "year": 1953, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0100-01" ] }, { "cite": "27 S.E. 117", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1897, "pin_cites": [ { "page": "117", "parenthetical": "\"court takes judicial notice ... of ... a public act\"" } ], "opinion_index": 0 }, { "cite": "120 N.C. 451", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658751 ], "year": 1897, "pin_cites": [ { "page": "452", "parenthetical": "\"court takes judicial notice ... of ... a public act\"" } ], "opinion_index": 0, "case_paths": [ "/nc/120/0451-01" ] }, { "cite": "449 U.S. 5", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11715236 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "15" }, { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/us/449/0005-01" ] }, { "cite": "434 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183992 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "421", "parenthetical": "emphasis added" }, { "page": "657", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/434/0412-01" ] }, { "cite": "42 U.S.C. \u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "opinion_index": 0 }, { "cite": "64 F.3d 962", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7415072 ], "year": 1995, "pin_cites": [ { "page": "967" } ], "opinion_index": 0, "case_paths": [ "/f3d/64/0962-01" ] }, { "cite": "501 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "654", "parenthetical": "holding that \"unsupported, conclusory allegations are simply insufficient to create the existence of a genuine issue of material fact where the moving party has offered a proper evidentiary showing\"" } ], "opinion_index": 0 }, { "cite": "348 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659850 ], "year": 1998, "pin_cites": [ { "page": "544", "parenthetical": "holding that \"unsupported, conclusory allegations are simply insufficient to create the existence of a genuine issue of material fact where the moving party has offered a proper evidentiary showing\"" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0537-01" ] }, { "cite": "186 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "405" } ], "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] }, { "cite": "489 U.S. 378", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032186 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "391", "parenthetical": "\"[Tjhe identified deficiency . . . must be closely related to the ultimate injury.\"" }, { "page": "428", "parenthetical": "\"[Tjhe identified deficiency . . . must be closely related to the ultimate injury.\"" } ], "opinion_index": 0, "case_paths": [ "/us/489/0378-01" ] }, { "cite": "520 U.S. 397", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11652076 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "405" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/us/520/0397-01" ] }, { "cite": "824 F.2d 1380", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1730401 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "1391" }, { "page": "1388", "parenthetical": "plaintiff must prove an \"affirmative link\" between the custom and the violation" }, { "page": "1391" } ], "opinion_index": 0, "case_paths": [ "/f2d/824/1380-01" ] }, { "cite": "481 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "345 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53966 ], "year": 1997, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0356-01" ] }, { "cite": "378 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "324 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482580 ], "year": 1989, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0427-01" ] }, { "cite": "476 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "421", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888444 ], "year": 1996, "pin_cites": [ { "page": "42", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0035-01" ] }, { "cite": "435 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529130 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0345-01" ] }, { "cite": "423 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "790" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522850 ], "year": 1992, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0106-01" ] }, { "cite": "191 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 88", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548855 ], "year": 1972, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0088-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "330" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "458 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 125", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913803 ], "year": 1995, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0125-01" ] }, { "cite": "517 N.W.2d 911", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10601481 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nw2d/517/0911-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "27", "parenthetical": "Officer may conduct \"reasonable search for weapons ... where he has reason to believe that he is dealing with an armed and dangerous individual\" but has no probable cause to arrest." }, { "page": "909", "parenthetical": "Officer may conduct \"reasonable search for weapons ... where he has reason to believe that he is dealing with an armed and dangerous individual\" but has no probable cause to arrest." } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "135 S.E. 866", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1926, "pin_cites": [ { "page": "867", "parenthetical": "\"[A]n officer who in attempting to make an unlawful arrest. . . commits an assault. . . must be held responsible.\"" }, { "page": "867", "parenthetical": "\"[A]n officer who in attempting to make an unlawful arrest . . . commits an assault . . . must be held responsible.\"" } ], "opinion_index": 0 }, { "cite": "192 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626255 ], "weight": 2, "year": 1926, "pin_cites": [ { "page": "695", "parenthetical": "\"[A]n officer who in attempting to make an unlawful arrest. . . commits an assault. . . must be held responsible.\"" }, { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc/192/0692-01" ] }, { "cite": "164 F.3d 215", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1381243 ], "weight": 7, "year": 1999, "pin_cites": [ { "parenthetical": "holding that arrestee's claims \"that her handcuffs were too tight and that an officer pushed her legs as she got into the police car\" are \"so insubstantial that [they] cannot as a matter of law support her claim\" for use of excessive force" }, { "page": "218", "parenthetical": "citations omitted" }, { "page": "218" }, { "page": "219", "parenthetical": "refusing to consider past incidents of alleged excessive force when plaintiff's claims were for false arrest and unreasonable search and seizure" }, { "page": "220", "parenthetical": "holding that municipality did not condone conduct where officer accused of false arrest was suspended by department" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/f3d/164/0215-01" ] }, { "cite": "207 F.3d 1253", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11457417 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "1257" }, { "page": "1258", "parenthetical": "emphasis added" }, { "page": "1257" }, { "page": "1257-58" } ], "opinion_index": 0, "case_paths": [ "/f3d/207/1253-01" ] }, { "cite": "973 F.2d 307", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10514397 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "314" }, { "page": "314" }, { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/f2d/973/0307-01" ] }, { "cite": "487 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "765" }, { "page": "770" }, { "page": "770" }, { "page": "764" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713093 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "719" }, { "page": "727" }, { "page": "727" }, { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0712-01" ] }, { "cite": "249 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "379", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564665 ], "year": 1978, "pin_cites": [ { "page": "87", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0081-01" ] }, { "cite": "283 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "546", "parenthetical": "holding that in prosecution for assault on a law enforcement officer, State must prove defendant knew victim was a law enforcement officer" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523288 ], "year": 1981, "pin_cites": [ { "page": "462", "parenthetical": "holding that in prosecution for assault on a law enforcement officer, State must prove defendant knew victim was a law enforcement officer" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0458-01" ] }, { "cite": "337 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "803", "parenthetical": "stating that in prosecution for \"assault with a firearm on a law enforcement officer,\" State must prove defendant \"knew or had reasonable grounds to know\" victim was a law enforcement officer" }, { "page": "803" } ], "opinion_index": 0 }, { "cite": "315 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715685 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "30", "parenthetical": "stating that in prosecution for \"assault with a firearm on a law enforcement officer,\" State must prove defendant \"knew or had reasonable grounds to know\" victim was a law enforcement officer" }, { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0001-01" ] }, { "cite": "10 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1940, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "218 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616782 ], "year": 1940, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0258-01" ] }, { "cite": "449 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 14, "year": 1994, "pin_cites": [ { "page": "245", "parenthetical": "citation omitted" }, { "page": "245" }, { "page": "244" }, { "page": "244-45", "parenthetical": "In determining whether probable cause existed for purposes of qualified immunity analysis, \"we must view the evidence in the light most favorable to plaintiff;\" determination is question of law for the trial court." }, { "page": "244", "parenthetical": "first two prongs of qualified immunity test are \"questions of law for the court\"" }, { "page": "246" }, { "page": "246" }, { "page": "245" }, { "page": "244" }, { "page": "246" }, { "page": "246" }, { "page": "247" }, { "page": "248", "parenthetical": "holding that common law false imprisonment claim adequately protects \"constitutional right not to be unlawfully imprisoned\" and deprived of liberty" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525419 ], "weight": 10, "year": 1994, "pin_cites": [ { "page": "671-72", "parenthetical": "citation omitted" }, { "page": "671" }, { "page": "670" }, { "page": "670-72" }, { "page": "670" }, { "page": "673" }, { "page": "671-72" }, { "page": "670" }, { "page": "675" }, { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0663-01" ] }, { "cite": "914 F.2d 1076", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539286 ], "year": 1990, "pin_cites": [ { "page": "1079", "parenthetical": "holding that officer's \"subjective reason for making the arrest is irrelevant to a fourth amendment challenge to the arrest\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/914/1076-01" ] }, { "cite": "490 U.S. 386", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605535 ], "weight": 12, "year": 1989, "pin_cites": [ { "page": "397", "parenthetical": "\"[T]he 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.\"" }, { "page": "456", "parenthetical": "\"[T]he 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.\"" }, { "page": "395-96" }, { "page": "454-55", "parenthetical": "citation omitted" }, { "page": "396" }, { "page": "455" }, { "page": "397" }, { "page": "456", "parenthetical": "citations omitted" }, { "page": "396" }, { "page": "455", "parenthetical": "\"Our Fourth Amendment jurisprudence has long recognized 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.\"" }, { "page": "396" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/490/0386-01" ] }, { "cite": "Tex. Penal Code Ann. \u00a7 38.02", "category": "laws:leg_statute", "reporter": "Tex. Code Ann.", "weight": 3, "pin_cites": [ { "page": "486" } ], "opinion_index": 0 }, { "cite": "693 F.2d 482", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10589685 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "484" }, { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/f2d/693/0482-01" ] }, { "cite": "446 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "588", "parenthetical": "holding that officer may make warrantless arrest for misdemeanor committed in his presence" } ], "opinion_index": 0 }, { "cite": "337 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550000 ], "year": 1994, "pin_cites": [ { "page": "145", "parenthetical": "holding that officer may make warrantless arrest for misdemeanor committed in his presence" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0132-01" ] }, { "cite": "423 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177768 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "418", "parenthetical": "\"[C]ases construing the Fourth Amendment . . . reflect the ancient common-law rule that a peace officer [i]s permitted to arrest without a warrant for a misdemeanor or felony committed in his presence ... if there [i]s reasonable ground for making the arrest.\"" }, { "page": "606", "parenthetical": "\"[C]ases construing the Fourth Amendment . . . reflect the ancient common-law rule that a peace officer [i]s permitted to arrest without a warrant for a misdemeanor or felony committed in his presence ... if there [i]s reasonable ground for making the arrest.\"" } ], "opinion_index": 0, "case_paths": [ "/us/423/0411-01" ] }, { "cite": "443 U.S. 31", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179569 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "36" }, { "page": "348-49" } ], "opinion_index": 0, "case_paths": [ "/us/443/0031-01" ] }, { "cite": "457 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "333", "parenthetical": "\" [Existence of probable cause is an absolute bar to a civil rights claim for false arrest.\"" }, { "page": "333" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920663 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "682", "parenthetical": "\" [Existence of probable cause is an absolute bar to a civil rights claim for false arrest.\"" }, { "page": "682" }, { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0676-01" ] }, { "cite": "120 F.3d 446", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 224241 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "452" }, { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/f3d/120/0446-01" ] }, { "cite": "499 U.S. 621", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11320254 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "624" }, { "page": "696" } ], "opinion_index": 0, "case_paths": [ "/us/499/0621-01" ] }, { "cite": "279 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "303 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573967 ], "year": 1981, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0439-01" ] }, { "cite": "845 F.2d 593", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10545915 ], "year": 1988, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/f2d/845/0593-01" ] }, { "cite": "182 F.3d 517", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11546229 ], "year": 1999, "pin_cites": [ { "page": "523", "parenthetical": "quoting United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988)" } ], "opinion_index": 0, "case_paths": [ "/f3d/182/0517-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "554" }, { "page": "509" }, { "page": "554" }, { "page": "509" }, { "page": "554" }, { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "18 F.3d 1499", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10515480 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f3d/18/1499-01" ] }, { "cite": "975 F.2d 1447", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10519230 ], "year": 1992, "pin_cites": [ { "page": "1450-51", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/975/1447-01" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "289" }, { "page": "291" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "782" }, { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "371 S.E.2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 186", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525025 ], "year": 1988, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0186-01" ] }, { "cite": "448 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "281" }, { "page": "281" }, { "page": "281" }, { "page": "281", "parenthetical": "holding that on summary judgment, must take non-movant's asserted facts as true" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136994 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "583" }, { "page": "583" }, { "page": "583" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0581-01" ] }, { "cite": "477 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867561 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0676-01" ] }, { "cite": "461 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914135 ], "year": 1995, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0096-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 1914, "char_count": 68400, "ocr_confidence": 0.756, "pagerank": { "raw": 4.303936584339498e-07, "percentile": 0.9168221776636398 }, "sha256": "08f8d1a49964708fdb85913305620e598fae698bbb57221cec748220b99fb59b", "simhash": "1:9f60e23e13251254", "word_count": 11238 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and MARTIN concur." ], "parties": [ "ROSALYN GLENN-ROBINSON, Plaintiff v. ROBERT CHARLES ACKER; CITY OF DURHAM, NORTH CAROLINA, Defendants" ], "opinions": [ { "text": "SMITH, Judge.\nPlaintiff Rosalyn Glenn-Robinson appeals the trial court\u2019s grant of summary judgment in favor of defendants Robert Charles Acker (Acker) and the City of Durham (the City). We affirm in part, reverse in part, and vacate in part the orders and judgments of the trial court.\nThis action arises out of a 7 May 1996 incident between plaintiff and Acker. At the time of the incident, Acker, a Durham city police officer, was working a second job as a truck driver for C.F. Corporation and had just made a delivery to Club Boulevard Elementary School (the school). Plaintiff, a school bus driver, was sitting in the driver\u2019s seat of her parked school bus in front of the school. According to plaintiff, Acker, dressed in street clothes, yelled at plaintiff, ordered her to move her school bus, and flashed \u201csomething\u201d at her; when plaintiff did not move the bus, Acker \u201cboarded the [plaintiff\u2019s school bus, told her she was under arrest, grabbed her arm and unbuckled her seatbelt.\u201d\nPlaintiff filed suit on 10 December 1997 pursuant to 42 U.S.C. \u00a7 1983 (1994), alleging that Acker\u2019s actions violated plaintiff\u2019s Fourth Amendment rights and that the City, \u201cby way of its pattern, practice, custom or usage condoned or was deliberately indifferent to [its] officers\u2019 violations of the Fourth Amendment and Fourteenth Amendment to the United States Constitution.\u201d In her complaint, plaintiff detailed ten \u201cexample[s] of the pattern, practice, custom or usage\u201d of the City that she alleges \u201cfoster and allow an atmosphere of repression and lawlessness by not punishing police officers who assault, batter, or violate the Fourth Amendment rights of Durham residents.\u201d\nPlaintiff also alleged the City violated her rights guaranteed under Article I, \u00a7\u00a7 14, 19, 20, 21, 35 and 36 of the North Carolina Constitution and that Acker committed the torts of assault and battery and false imprisonment. Plaintiff sought compensatory and punitive damages and counsel fees. According to the original complaint, Acker was sued only in his individual capacity.\nAcker filed an answer on 10 February 1998, admitting \u201cthat he demonstrated his police badge to [pjlaintiff, unbuckled her seatbelt, touched her on the arm and told her she was under arrest,\u201d but denying that such actions violated plaintiff\u2019s constitutional rights and asserting the defenses of qualified immunity and governmental immunity as bars to plaintiffs claims. The City answered on 11 February 1998, generally denying plaintiffs allegations and asserting the defense of governmental immunity.\nOn 26 February 1999, plaintiff filed a \u201cMotion for Partial Summary Judgment. . . and/or Request for the Court to Take Judicial Notice,\u201d which was denied on 18 March 1999. Plaintiff filed a motion in limine on 13 April 1999 requesting that Acker be judicially estopped \u201cfrom claiming new, alternative grounds for his seizure and arrest of [p]laintiff.\u201d The record on appeal does not reflect that this motion was ruled on by the trial court.\nOn 24 March 1999, Acker moved for summary judgment, which was granted 19 April 1999. Plaintiff timely appealed the trial court\u2019s orders granting Acker\u2019s motion for summary judgment and denying her partial summary judgment motion.\nThe City moved to supplement its answer on 26 April 1999 to assert the defense of res judicata, in that the trial court\u2019s order granting summary judgment in favor of Acker \u201cnegate[d] essential elements of [p]laintiff\u2019s purported claims against the City\u201d; it moved for summary judgment on 21 May 1999. The City\u2019s motions were granted on 21 and 24 June 1999, respectively. Plaintiff timely appealed both rulings.\nThis Court, ex mero mo tu, consolidated plaintiff\u2019s appeals for argument and decision. See N.C. R. App. P. 40 (\u201cactions which involve common questions of law may be consolidated for hearing . . . upon the initiative of th[e] court\u201d).\nI. Plaintiff\u2019s claims against Acker\nPlaintiff first argues the trial court erred in granting Acker\u2019s motion for summary judgment because \u201cthere were genuine material issues of fact in dispute.\u201d A motion for summary judgment is properly granted when\nthe 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.\nN.C.G.S. \u00a7 1A-1, Rule 56(c) (1999). A defendant moving for summary judgment bears the burden of showing either that (1) an essential element of the plaintiffs claim is nonexistent; (2) the plaintiff is unable to produce evidence that supports an essential element of her claim; or, (3) the plaintiff cannot overcome affirmative defenses raised in contravention of her claims. See Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev\u2019d on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In ruling on such motion, the trial court must view all evidence in the light most favorable to the non-movant, taking the non-movant\u2019s asserted facts as true, and drawing all reasonable inferences in her favor. See Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994).\nThe trial court\u2019s order granting summary judgment in favor of Acker read in pertinent part:\n[T]he Court finds and concludes that the forecast of evidence demonstrates:\n1. That [Acker] did not violate Plaintiffs rights under the United States or North Carolina Constitutions, for the reasons, inter alia, that\na. [Acker] did not arrest or seize Plaintiff . . . , and/or\nb. Even if any such arrest or seizure occurred, such arrest or seizure was reasonable and supported by probable cause, and\nc. [Acker] did not use excessive force against Plaintiff;\n2. That [Acker] did not commit . . . false imprisonment, assault and/or battery against the Plaintiff; and\n3. In the alternative, that [Acker] is entitled to judgment on all claims herein asserted under the doctrines of qualified immunity under federal law and governmental officer immunity under North Carolina law.\nPreliminarily, we agree with plaintiff that her \u201camended complaint alleged no North Carolina [constitutional claims against... Acker in his individual capacity.\u201d Plaintiffs amended complaint alleged only that the City, \u201cthrough... Acker in his official capacity, violated the rights guaranteed to the plaintiff under\u201d various sections of the North Carolina Constitution. It was thus improper for the trial court to include a reference to plaintiffs state constitutional claims in its order granting summary judgment in favor of Acker.\nA. Section 1983 claim \u2014 False arrest\nWe next address seriatim plaintiffs federal claims of false arrest and excessive force brought against Acker in his individual capacity. Plaintiff alleged in her complaint that Acker \u201csubjected [her] to excessive force, [and] arrested [her] and threatened [her] in violation of the Fourth Amendment to the United States Constitution,\u201d thus establishing a cause of action under section 1983. Before proceeding, we note that although plaintiff has filed suit pursuant to a federal statute in state court, \u201cplaintiffs relief, if any, will be the same that she might have in a federal court under\u201d section 1983. Truesdale v. University of North Carolina, 91 N.C. App. 186, 197, 371 S.E.2d 503, 510 (1988), overruled on other grounds by Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992).\nSection 1983 provides:\nEvery person who, under color of any statute,!] ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.\nThe Fourth Amendment protects individuals against \u201cunreasonable searches and seizures.\u201d U.S. Const, amend. IV. Two categories of police-citizen encounters implicate Fourth Amendment protection:\ninvestigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity, and [] arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.\nUnited States v. Bloom, 975 F.2d 1447, 1450-51 (10th Cir. 1992) (citations omitted), overruled in part on other grounds by United States v. Little, 18 F.3d 1499 (10th Cir. 1994).\n1. Was plaintiff seized?\nAcker argues summary judgment was proper on plaintiffs false arrest claim because \u201cno arrest or seizure actually occurred.\u201d \u201c[A] person has been \u2018seized\u2019 within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.\u201d United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509 (1980).\nIn her deposition, plaintiff described the events surrounding the incident as follows: Plaintiff drove her bus to the school to wait for the children to be dismissed. A tractor-trailer was double-parked, requiring plaintiff to maneuver around it before parking her bus. Cars also were parked along the curb where plaintiff usually parked, causing plaintiff to stop the bus in the travel lane of the roadway. Plaintiff testified that as she was waiting for the children, Acker\ntapped on the window, and I slid it back. And he said, \u201cYou need to move this bus.\u201d I said, \u201cWell, as soon as these other cars move, I\u2019ll move.\u201d\n. .. Acker said, \u201cYou need to move this bus now.\u201d\nAnd I replied again, \u201cAs soon as these cars move.\u201d So he was getting a little out of sorts. So I shut the window.\n. . . [Next, Acker came a]round the front of the bus and banged on the door. And I opened the door, and he said, \u201cI\u2019m a police officer. You need to move this bus now.\u201d And he flashed a badge.\nQ When you say \u201cflashed,\u201d tell me what you mean.\nA He just got \u2014 he pulled something out and flipped it over.\nQ Were you able to tell it was a badge of some kind?\nA No. . . . [After] that point, he just got out and just lost it.\n... He went to screaming and hollering, \u201cYou need to move this bus. I\u2019ve got freight to unload. I\u2019m a police officer. I can arrest you for obstructing traffic.\u201d And at that time he boarded the bus.\nPlaintiff testified that until this point, Acker had been standing \u201cdown at the bottom of the steps.\u201d Next, Acker\nboarded the bus, and he said, \u201cI can arrest you for obstructing traffic.\u201d He said, \u201cYou are under arrest.\u201d He reached over, put his hand on my arm and reached over and unbuckled the seat belt.\nAcker then asked plaintiff to \u201cget up,\u201d but she refused. According to plaintiff, Acker was \u201cno more than a f[oo]t, f[oo]t and a half\u2019 away from her at this time, and she \u201cwas trapped in [her seat]. He was between [her] and the entrance to the bus.\u201d\nPlaintiff testified that Acker\u2019s touching of her arm did not hurt, did not leave any marks, and lasted just \u201c[l]ong enough to unbuckle the seat belt.\u201d When plaintiff asked him to remove his hand, he complied and \u201cbacked off,\u201d ending the incident. When asked if she tried to leave the bus during the incident, plaintiff answered that she \u201cdidn\u2019t move. [She] didn\u2019t even try.\u201d In a later affidavit, plaintiff testified she \u201cwas trapped behind the wheel [and] couldn\u2019t move because [Acker] was right next to [her].\u201d\nTaking the facts in the light most favorable to plaintiff, See Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, we find plaintiff\u2019s evidence sufficient for the trier of fact to find that \u201ca reasonable person would have believed that he was not free to leave,\u201d Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, thus establishing a seizure under the Fourth Amendment, see id. It was thus improper for the trial court to grant Acker\u2019s motion for summary judgment on the basis that a seizure did not occur.\nThere is also a genuine issue of material fact as to whether plaintiff was not merely seized, but was in fact arrested. \u201cA seizure becomes an arrest when \u2018a reasonable person in the suspect\u2019s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.\u2019 \u201d United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999) (quoting United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988)). Although our Supreme Court has held, \u201cOne is not arrested until law enforcement officers significantly restrict his freedom of action,\u201d State v. Simpson, 303 N.C. 439, 445, 279 S.E.2d 542, 546 (1981), the United States Supreme Court has held, \u201c[T]he mere grasping or application of physical force with lawful authority, whether or not it succeed[s] in subduing the arrestee, [i]s sufficient\u201d to constitute an arrest, California v. Hodari D., 499 U.S. 621, 624, 113 L. Ed. 2d 690, 696 (1991).\nAcker admitted in his answer \u201cthat he demonstrated his police badge to [p]laintiff, unbuckled her seatbelt, touched her on the arm and told her she was under arrest,\u201d and testified in his deposition that after the incident, he told plaintiffs supervisor he had placed plaintiff under arrest. Although Acker exited plaintiffs bus and did not take her into custody, his \u201capplication of physical force,\u201d id., coupled with his proclamation that plaintiff was under arrest and plaintiffs allegations that her exit was blocked, raise at least a genuine issue of material fact as to whether plaintiff was \u201carrested\u201d for purposes of the Fourth Amendment.\n2. Did Acker have probable cause to arrest plaintiff?\n\u201cThe Fourth Amendment prohibits a police officer from arresting a citizen except upon probable cause.\u201d Rogers v. Powell, 120 F.3d 446, 452 (3rd Cir. 1997). Thus, if probable cause to arrest plaintiff was not present in the case at bar, \u201cthe arrest was unlawful and violated [plaintiffs] Fourth Amendment right to be free from unlawful seizures.\u201d Id. at 454; see also Burton v. City of Durham, 118 N.C. App. 676, 682, 457 S.E.2d 329, 333 (1995) (\u201c [Existence of probable cause is an absolute bar to a civil rights claim for false arrest.\u201d). According to plaintiff, Acker informed her he was placing her under arrest for impeding or obstructing traffic.\nSection 20-90(11) of the Durham City Code provides that \u201c[n]o person shall stop, stand or park a vehicle ... [u]pon the travel portion of the roadway or street such that said vehicle obstructs or impedes the flow of vehicular traffic.\u201d Durham, N.C., Code \u00a7 20-90(11) (1985). A violation of a city ordinance \u201cregulating the operation or parking of vehicles\u201d is an \u201cinfraction.\u201d N.C.G.S. \u00a7 14-4(b) (1999).\n\u201cWhether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.\u201d Michigan v. DeFillippo, 443 U.S. 31, 36, 61 L. Ed. 2d 343, 348-49 (1979). A police officer may only arrest a person without a warrant in this state if that officer \u201chas probable cause to believe [that person] has committed a criminal offense in the officer\u2019s presence.\u201d N.C.G.S. \u00a7 15A-401(b)(1) (1999) (emphasis added). An infraction, however, is a \u201cnoncriminal violation of law,\u201d N.C.G.S. \u00a7 14-3.1 (1999), such that officers are not empowered to arrest for its violation. See Robert L. Farb, Arrest, Search and Investigation in North Carolina 56 (2d ed. 1992); see also United States v. Watson, 423 U.S. 411, 418, 46 L. Ed. 2d 598, 606 (1976) (\u201c[C]ases construing the Fourth Amendment . . . reflect the ancient common-law rule that a peace officer [i]s permitted to arrest without a warrant for a misdemeanor or felony committed in his presence ... if there [i]s reasonable ground for making the arrest.\u201d). Thus, assuming arguendo plaintiff did violate section 20-90, Acker could not arrest her for such an infraction.\nAcker contends summary judgment was proper in that he had probable cause to arrest plaintiff pursuant to N.C.G.S. \u00a7 20-114.1(a) (1999), which provides \u201c[n]o person shall willfully fail or refuse to comply with any lawful order or direction of any law-enforcement officer . . . which order or direction [is] related to the control of traffic.\u201d Violation of section 20-114.1(a) is a misdemeanor, see N.C.G.S. \u00a7 20-176(a) (1999), such that an officer may make a war-rantless arrest if the officer has probable cause to believe the violation was committed in his presence, see G.S. \u00a7 15A-401(b)(1); see also State v. Brooks, 337 N.C. 132, 145, 446 S.E.2d 579, 588 (1994) (holding that officer may make warrantless arrest for misdemeanor committed in his presence).\nOur courts have never addressed the issue herein presented\u2014 whether a police officer who states that a person is under arrest for one violation may later justify that arrest by reference to another violation. However, we agree with the approach taken by the Fifth Circuit in similar circumstances. In Trejo v. Perez, 693 F.2d 482, 484 (5th Cir. 1982), the defendant-officer, Perez, arrested the plaintiff, Trejo, for disorderly conduct, but later asserted Trejo had violated the Texas \u201cStop and Identify\u201d statute, Tex. Penal Code Ann. \u00a7 38.02. Trejo filed suit for false arrest under section 1983. The jury found that Perez had no probable cause to believe Trejo had committed the offense of disorderly conduct; Perez sought to avoid liability by claiming he had probable cause to arrest Trejo for violation of section 38.02. Id.\nThe Trejo court held that the question to be resolved was\nwhether the conduct that served as the basis for the charge for which there was no probable cause could, in the eyes of a similarly situated reasonable officer, also have served as the basis for a charge for which there was probable cause.\nId. at 486; see also Graham v. Connor, 490 U.S. 386, 397, 104 L. Ed. 2d 443, 456 (1989) (\u201c[T]he question is whether the officers\u2019 actions are \u2018objectively reasonable\u2019 in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.\u201d). The court found that Trejo\u2019s use of vulgar language in a public place gave rise to the disorderly conduct charge and that Trejo\u2019s use of vulgar language in response to Perez\u2019 request for identification may have permitted Trejo\u2019s arrest under section 38.02; thus, the court concluded, the two offenses \u201cwere sufficiently related that an objective police officer might have charged the offense of failure to identify.\u201d Trejo, 693 F.2d at 486.\nIn the case sub judice, plaintiff could not have been legally arrested for violation of section 20-90. Acker attempted to arrest plaintiff for that infraction based on plaintiff\u2019s parking of the bus in the travel lane of the road. The offense for which Acker argues he had probable cause to arrest plaintiff \u2014 disobeying a traffic order of a law enforcement officer, see G.S. \u00a7 20-114.1(a) \u2014 was based on plaintiff\u2019s refusal to move her bus from the travel lane. Thus, as in Trejo, the offenses are sufficiently related so that Acker may seek to justify his arrest of plaintiff under G.S. \u00a7 20-114.1(a). See Foster v. Metropolitan Airports Com\u2019n, 914 F.2d 1076, 1079 (8th Cir. 1990) (holding that officer\u2019s \u201csubjective reason for making the arrest is irrelevant to a fourth amendment challenge to the arrest\u201d).\nAcker argues that because plaintiff refused to move her bus when he ordered her to do so, he had probable cause to arrest her for violation of G.S. \u00a7 20-114.1(a).\nProbable cause is defined as \u201cthose facts and circumstances within an officer\u2019s knowledge and of which he had reasonably trustworthy information which are sufficient to warrant a prudent [person] in believing that the suspect had committed or was committing an offense.\u201d\nIn examining the facts and circumstances known to the officer[] at the time of the arrest to determine whether summary judgment was proper[] ... , we must view the evidence in the light most favorable to plaintiff.\nDavis v. Town of Southern Pines, 116 N.C. App. 663, 671-72, 449 S.E.2d 240, 245 (1994) (citation omitted).\nPlaintiff testified by way of affidavit that\n[o]n May 7, 1996, . . . Acker was dressed in short pants and a t-shirt. At times he claimed he was driving a truck and had freight to unload. Other times he claimed he was a police officer and flashed something quickly. He did not act like a police officer. He was completely out of control, and very angry. I believed at the time he was high on drugs. He was yelling and waving his arms.\nIn his deposition, Acker testified he was wearing shorts, a plain t-shirt, and boots on the date of the incident, and when he was speaking with plaintiff at the window of her bus, he \u201cproduced [his] police ID and . . . tried to get [plaintiff\u2019s] attention that [he] was a police officer. And [plaintiff] totally ignored [him].\u201d Acker further testified that plaintiff continued to \u201cignore []\u201d him after he boarded her bus.\nViewed in the light most favorable to plaintiff, see Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, the facts tend to show that plaintiff was approached by an \u201cangry,\u201d \u201cout of control\u201d man wearing shorts, a plain t-shirt, and boots. The man \u201cflashed something\u201d at her \u201cquickly\u201d; asserted he was both a truck driver and a police officer; boarded her bus; ordered her to move her bus; grabbed her arm, unfastened her seatbelt, and told her she was under arrest; then exited her bus without writing her a citation or formally taking her into custody. At no point did plaintiff acknowledge Acker\u2019s status as a police officer, and, according to Acker\u2019s own testimony, plaintiff was not looking in his direction when he attempted to show her his badge at the window of the bus.\nUnder these circumstances, we believe the trier of fact could reasonably infer plaintiff did not know Acker was a \u201claw-enforcement officer,\u201d G.S. \u00a7 20-114.1(a), and in fact may have believed he was a civilian masquerading as an officer in an attempt to get her to move the bus. To violate G.S. \u00a7 20-114.1(a), plaintiff must have \u201cwillfully\u201d disobeyed a \u201clawful order\u201d of a \u201claw-enforcement officer.\u201d The word \u201cwillfully\u201d means \u201csomething more than an intention to commit the offense.\u201d State v. Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940). \u201cIt implies committing the offense purposely and designedly in violation of law.\u201d Id. Thus, to willfully disobey an order under G.S. \u00a7 20-114.1(a), plaintiff must have known or had reasonable grounds to know Acker was a law enforcement officer. See State v. Avery, 315 N.C. 1, 30, 337 S.E.2d 786, 803 (1985) (stating that in prosecution for \u201cassault with a firearm on a law enforcement officer,\u201d State must prove defendant \u201cknew or had reasonable grounds to know\u201d victim was a law enforcement officer); State v. Rowland, 54 N.C. App. 458, 462, 283 S.E.2d 543, 546 (1981) (holding that in prosecution for assault on a law enforcement officer, State must prove defendant knew victim was a law enforcement officer).\nAlthough an officer giving an order knows that he is in fact an officer, to find probable cause to arrest a suspect for violation of G.S. \u00a7 20-114.1(a), the officer must evaluate whether the suspect knows the person giving the order is a law enforcement officer. Probable cause exists only if a reasonable officer could believe plaintiff knew the officer\u2019s status as such. See Davis, 116 N.C. App. at 671, 449 S.E.2d at 245. We are not prepared to hold that an officer in these circumstances \u2014 wearing civilian clothing, working off-duty at a second job, and acting \u201cout of control\u201d \u2014 may assume that others will know he is a police officer simply if he states such and flashes \u201csomething\u201d at someone who is admittedly \u201cignor[ing]\u201d him. We also emphasize that plaintiff never acknowledged Acker\u2019s status as a police officer by way of words or action.\nThe existence or nonexistence of probable cause is a mixed question of law and fact. If the facts are admitted or established, it 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.\nPitts v. Pizza, Inc., 296 N.C. 81, 87, 249 S.E.2d 375, 379 (1978) (citations omitted). As there are material facts in dispute sub judice, such as whether plaintiff ever saw Acker\u2019s badge and whether Acker\u2019s demeanor at the time of the incident was \u201cout of control\u201d and not indicative of an officer, as plaintiff testified, or \u201cprofessional,\u201d as Acker testified in his deposition, we hold the existence of probable cause is an issue for the trier of fact. The trial court\u2019s grant of summary judgment on this basis was thus improper.\n3. Is Acker entitled to the defense of qualified immunity?\nAcker also was not entitled to summary judgment on plaintiff\u2019s federal false arrest claim on the grounds of qualified immunity.\n\u201cThe test of qualified immunity for police officers sued under [section 1983] is whether [the officers\u2019 conduct violated] clearly established statutory or constitutional rights of which a reasonable person would have known.\u201d In ruling on the defense of qualified immunity we must: (1) identify the specific right allegedly violated; (2) determine whether the right allegedly violated was clearly established at the time of the violation; and (3) if the right was clearly established, determine whether a reasonable person in the officer\u2019s position would have known that his actions violated that right. The first two determinations are questions of law for the court and should always be decided at the summary judgment stage. However, \u201cthe third [determination] . . . require[s] [the factfinder to make] factual determinations [concerning] disputed aspects of the officer [s\u2019] conduct.\u201d\nDavis, 116 N.C. App. at 670, 449 S.E.2d at 244. The right allegedly violated herein was plaintiff\u2019s Fourth Amendment \u201cright not to be arrested without probable cause,\u201d Roberts v. Swain, 126 N.C. App. 712, 719, 487 S.E.2d 760, 765 (1997), for violation of G.S. \u00a7 20-114.1(a). The right to be free from false arrest is \u201cclearly established\u201d for purposes of this analysis \u201cif probable cause is lacking.\u201d Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992).\nBefore proceeding, we must distinguish our analysis on this element of the qualified immunity test from our analysis of the propriety of summary judgment based on the trial court\u2019s finding that Acker had probable cause to arrest plaintiff. We first note that if probable cause to arrest plaintiff was present as a matter of law, summary judgment should have been entered in favor of Acker, and the issue of whether Acker is entitled to qualified immunity would not arise. See Burton, 118 N.C. App. at 682, 457 S.E.2d at 333. However, summary judgment is improper if genuine issues of material fact are present. As we discussed above, plaintiff and Acker present such different versions of the facts that summary judgment is inappropriate on the issue of whether probable cause to arrest plaintiff existed. The trier of fact must determine exactly what transpired and, based on those facts, determine if probable cause existed.\nHowever, when determining whether a right is \u201cclearly established\u201d for purposes of qualified immunity, the trial court essentially assumes the facts are as the plaintiff alleges, thus removing any fact issue from the analysis. See Davis, 116 N.C. App. at 670-72, 449 S.E.2d at 244-45 (In determining whether probable cause existed for purposes of qualified immunity analysis, \u201cwe must view the evidence in the light most favorable to plaintiff;\u201d determination is question of law for the trial court.); see also Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281 (holding that on summary judgment, must take non-movant\u2019s asserted facts as true). On plaintiffs view of the facts, Acker did not have probable cause to believe plaintiff knew he was a law enforcement officer, see Avery, 315 N.C. at 30, 337 S.E.2d at 803; thus, Acker did not have probable cause to arrest plaintiff for violation of G.S. \u00a7 20-114.1(a), and plaintiff\u2019s right to be free from arrest under these facts was clearly established, see Pritchett, 973 F.2d at 314.\nTo summarize, we hold as a matter of law that plaintiff\u2019s right to be free from an unconstitutional arrest was clearly established under plaintiff\u2019s version of the facts. See Davis, 116 N.C. App. at 670, 449 S.E.2d at 244 (first two prongs of qualified immunity test are \u201cquestions of law for the court\u201d). Thus, we must next examine the third prong of the qualified immunity test to determine whether Acker is entitled to qualified immunity. See id.\nWhen reviewing this third prong, we must ask \u201cwhether the conduct at issue actually occurred and if so, whether a reasonable officer would have known that his conduct would violate that right.\u201d Id. at 672-73, 449 S.E.2d at 246. However, \u201c[i]f there are genuine issues of historical fact respecting the officer\u2019s conduct or its reasonableness under the circumstances, summary judgment is not appropriate\u201d on this prong of the test. Pritchett, 973 F.2d at 313. Again, as discussed above, certain facts sub judice are in dispute, such as whether plaintiff was given sufficient opportunity to view Acker\u2019s badge and whether Acker\u2019s conduct towards plaintiff was \u201cout of control\u201d or \u201cprofessional.\u201d The \u201cthird inquiry [therefore] cannot be answered on summary judgment\u201d in the case at bar. Davis, 116 N.C. App. at 673, 449 S.E.2d at 246. Summary judgment was thus inappropriate on the basis that Acker was entitled to qualified immunity.\nB. Section 1983 claim \u2014 Excessive force\nWe now turn to plaintiff\u2019s federal claim of excessive force. Acker contends, as the trial court found in its order, that he \u201cdid not use excessive force against [p]laintiff,\u201d or, in the alternative, that the doctrine of qualified immunity bars plaintiffs claim.\n[C]laims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other \u201cseizure\u201d of a free citizen should be analyzed under the Fourth Amendment and its \u201creasonableness\u201d standard ....\nDetermining whether the force used to effect a particular seizure is \u201creasonable\u201d under the Fourth Amendment requires a careful balancing of \u201c \u2018the nature and quality of the intrusion on the individual\u2019s Fourth Amendment interests\u2019 \u201d against the countervailing governmental interests at stake.\nGraham, 490 U.S. at 395-96, 104 L. Ed. 2d at 454-55 (citation omitted) (footnote omitted). Proper application of this \u201creasonableness\u201d test\nrequires 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.\nId. at 396, 104 L. Ed. 2d at 455. Finally, the issue to be determined\nis whether the officers\u2019 actions are \u201cobjectively reasonable\u201d in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer\u2019s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force ....\nId. at 397, 104 L. Ed. 2d at 456 (citations omitted).\nIn the instant case, plaintiff alleges Acker touched her on the arm, but testified in her deposition that such touching did not hurt, did not leave any marks, and lasted just \u201c[l]ong enough to unbuckle the seat belt,\u201d and that Acker removed his hand when plaintiff asked him to do so. However, plaintiff alleges in her complaint that \u201cAcker\u2019s behavior has led [her] to have nightmares and other anxiety.\u201d\nPlaintiff asserts that she \u201cpose[d] no threat to anyone and [wa]s not trying to flee,\u201d such that Acker should have been \u201cprohibited from using any force, because no force [wa]s reasonable under the totality of the circumstances.\u201d According to plaintiff, \u201c[w]hen no use of force by an officer is required, no use of force is permissible.\u201d Acker counters that any use of force was so minimal as to \u201cnot amount to a constitutional violation.\u201d\nIn the course of a lawful arrest, \u201cthe application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.\u201d Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000); see also Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir. 1999) (holding that arrestee\u2019s claims \u201cthat her handcuffs were too tight and that an officer pushed her legs as she got into the police car\u201d are \u201cso insubstantial that [they] cannot as a matter of law support her claim\u201d for use of excessive force). However, if an officer attempts an arrest \u201cwithout probable cause [,]... any use of force [i]s inappropriate.\u201d Nolin, 207 F.3d at 1258 (emphasis added); see also Graham, 490 U.S. at 396, 104 L. Ed. 2d at 455 (\u201cOur Fourth Amendment jurisprudence has long recognized 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.\u201d); State v. Simmons, 192 N.C. 692, 695, 135 S.E. 866, 867 (1926) (\u201c[A]n officer who in attempting to make an unlawful arrest. . . commits an assault. . . must be held responsible.\u201d); cf. Terry v. Ohio, 392 U.S. 1, 27, 20 L. Ed. 2d 889, 909 (1968) (Officer may conduct \u201creasonable search for weapons ... where he has reason to believe that he is dealing with an armed and dangerous individual\u201d but has no probable cause to arrest.).\nThus, the issue central to plaintiff\u2019s false arrest claim also is determinative of her excessive force claim: if no probable cause existed to arrest plaintiff, any use of force by Acker was unlawful, see Nolin, 207 F.3d at 1257; however, if probable cause did exist, Acker was authorized to use a \u201creasonable\u201d amount of force to effect plaintiff\u2019s arrest, see Graham, 490 U.S. at 396, 104 L. Ed. 2d at 455. As there are genuine issues of material fact that must be resolved by the trier of fact regarding the existence or non-existence of probable cause, summary judgment was inappropriate on plaintiff\u2019s excessive force claim as well.\nAcker contends he is entitled to qualified immunity as to this claim. Although the United States Supreme Court \u201chas declined to reach the issue of whether qualified immunity is available as a defense to excessive force claims,\u201d Baker v. Chaplin, 517 N.W.2d 911, 914 n.5 (Minn. 1994), this Court has analyzed section 1983 cases as if qualified immunity were available to defendants, see Roberts, 126 N.C. App. at 727, 487 S.E.2d at 770. We thus address Acker\u2019s argument.\nViewing the facts in the light most favorable to plaintiff, see. Davis, 116 N.C. App. at 671-72, 449 S.E.2d at 245, Acker did not have probable cause to arrest plaintiff. If Acker was without probable cause to arrest plaintiff, he was not entitled to use any force against her. See Nolin, 207 F.3d at 1257-58. Thus, \u201cplaintiff had a clearly established right, under the facts and circumstances shown, not to be subjected to use of excessive force.\u201d Roberts, 126 N.C. App. at 727, 487 S.E.2d at 770.\nWe must next \u201cdetermine whether a reasonable person in the officer\u2019s position would have known that his actions violated\u201d plaintiff\u2019s right to be free from use of excessive force. Davis, 116 N.C. App. at 670, 449 S.E.2d at 244. This determination turns on whether the incident actually occurred in the manner described by plaintiff and must be decided by the trier of fact as material issues of fact are in dispute. See id. at 672-73, 449 S.E.2d at 246. Summary judgment was thus inappropriate. See id. at 673, 449 S.E.2d at 246.\nC. State tort claims\nWe next address plaintiff\u2019s state tort claims, which were brought against Acker in his individual capacity. Plaintiff has not brought suit against the City for these claims. The evidence before the trial court on Acker\u2019s motion for summary judgment established a prima facie claim of both assault and battery and false imprisonment. As previously discussed, plaintiff presented evidence Acker arrested her without probable cause, thus committing a false arrest. \u201cA false arrest is an arrest without legal authority and is one means of committing a false imprisonment.\u201d Marlowe v. Piner, 119 N.C. App. 125, 129, 458 S.E.2d 220, 223 (1995). As \u201cthe existence or nonexistence of probable cause is for the jury to determine[,] . . . [Acker] was not entitled to summary judgment.\u201d Id.\n\u201cAn assault is an offer to show violence to another without striking him, and a battery is the carrying of the threat into effect by the infliction of a blow.\u201d Dickens v. Puryear, 302 N.C. 437, 444, 276 S.E.2d 325, 330 (1981). \u201cA battery is made out when the . . . plaintiff is offensively touched against h[er] will.\u201d Ormond v. Crampton, 16 N.C. App. 88, 94, 191 S.E.2d 405, 410 (1972). Acker admitted in his answer that he \u201ctouched\u201d plaintiffs arm, and plaintiff has presented evidence such contact was against her will.\nHowever,\n[p]ursuant to the common law of North Carolina, an assault [and battery] by a law enforcement officer upon a citizen can provide the basis for a civil action for damages against the officer only if a plaintiff can show that the officer used force against plaintiff which was excessive under the given circumstances.\nFowler v. Valencourt, 108 N.C. App. 106, 114, 423 S.E.2d 785, 790 (1992), rev\u2019d in part on other grounds, 334 N.C. 345, 435 S.E.2d 530 (1993). G.S. \u00a7 15A-401(d) governs the use of force by law enforcement officers and provides in pertinent part:\na law-enforcement officer is justified in using force upon another person when and to the extent that he reasonably believes it necessary:\na. To prevent the escape from custody or to effect an arrest of a person who he reasonably believes has committed a criminal offense, unless he knows that the arrest is unauthorized ....\n(Emphasis added.) The statute in effect proscribes the use of force by a law-enforcement officer if the officer either \u201cknows that the arrest is unauthorized\u201d or does not have a reasonable belief that the suspect \u201chas committed a criminal offense.\u201d Id.; see also Simmons, 192 N.C. at 695, 135 S.E. at 867 (\u201c[A]n officer who in attempting to make an unlawful arrest . . . commits an assault . . . must be held responsible.\u201d); Farb, Arrest, Search and Investigation at 45 (\u201cIf officers are making an unlawful arrest, their use of force ... is also unlawful and may constitute an assault.\u201d).\nAgain, given that the trier of fact must determine the reasonableness of Acker\u2019s belief that plaintiff had committed a criminal offense, we hold that the trier of fact should decide whether Acker was entitled to use any force at all against plaintiff. If Acker did not have probable cause to arrest plaintiff, Acker loses the benefit of G.S. \u00a7 15A-401(d), and any use of force becomes at least a technical assault and battery against plaintiff.\nIn sum, the trial court improperly granted Acker\u2019s motion for summary judgment on the grounds that Acker \u201cdid not commit the common law torts of false imprisonment, assault and/or battery.\u201d However, Acker asserts he is protected by the doctrine of official immunity and that summary judgment was appropriate on that ground.\nTo maintain a suit against a public official in his/her individual capacity, the plaintiff must make a prima facie showing that the official\u2019s actions (under color of authority) are sufficient to pierce the cloak of official immunity. Actions that are malicious, corrupt or outside of the scope of official duties will pierce the cloak of official immunity, thus holding the official liable for his acts like any private individual.\nMoore v. Evans, 124 N.C. App. 35, 42, 476 S.E.2d 415, 421 (1996) (citation omitted).\nIn her complaint, plaintiff alleged Acker committed the tort of assault and battery by \u201cdeliberately, willfully, maliciously and in bad faith grabbfing] plaintiff without her consent,\u201d and committed the tort of false imprisonment by \u201cdeliberately, willfully, maliciously and in bad faith\u201d restraining plaintiff against her will. Based on our previous discussion of the facts, plaintiff has forecast sufficient evidence that Acker acted maliciously, thus requiring reversal of the trial court\u2019s grant of summary judgment in Acker\u2019s favor on these claims. See Roberts, 126 N.C. App. at 718, 487 S.E.2d at 764.\nPlaintiff also has forecast evidence from which it could be found that Acker acted outside the scope of his official duties. All parties agree Acker was off-duty and working a second job as a truck driver at the time of the incident. Further, plaintiff presented evidence that the \u201cRules & Regulations of the Durham Police Department\u201d provide in section 2.25 that \u201c[o]ff-duty officers in their personal vehicles shall not stop or attempt to stop motorists for traffic violations or other minor offenses.\u201d Acker was off-duty and driving a tractor-trailer at the time of the incident at issue, and his order to move the bus appears to have been given so that he could more easily move his tractor-trailer, not to further a purpose of the police department. Thus, plaintiff presented evidence from which it could be found that Acker was acting outside the scope of his duties with the police department at the time of the incident.\nFinally, plaintiff states in her brief that \u201cAcker\u2019s conduct may also support a claim for intentional infliction of emotional distress.\u201d However, plaintiff did not allege in either her original or amended complaint that Acker had committed such tort; she may therefore not pursue this claim.\nD. Award of Costs\nFinally, plaintiff assigns error to that portion of the trial court\u2019s 19 April 1999 order taxing costs to plaintiff. Given our disposition herein reinstating plaintiff\u2019s claims against Acker, the trial court\u2019s award of costs was premature and is therefore vacated.\nII. Plaintiff\u2019s claims against the City\nWe now turn to plaintiff\u2019s claims against the City. In her complaint, plaintiff alleged the City \u201cby way of its pattern, practice, custom or usage condoned or was deliberately indifferent to officers\u2019 violations of the Fourth Amendment and Fourteenth Amendment\u201d and that the City \u201cviolated the rights guaranteed to the plaintiff under the N.C. Constitution, Art. I, [\u00a7\u00a7] 14, 19, 20, 21, 35 and 36.\u201d The trial court granted summary judgment in favor of the City on both claims. While the City\u2019s motion for summary judgment was based on the defense of res judicata, a defense rendered inapposite in light of our disposition with regard to plaintiff\u2019s claims against Acker, we note that \u201c[i]f the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\u201d Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).\nA. Section 1983 claims\nPreliminarily, we note \u201ca municipal entity has no claim to immunity in a section 1983 suit.\u201d Moore v. City of Creedmoor, 345 N.C. 356, 366, 481 S.E.2d 14, 21 (1997). Further, while a \u201cmunicipality cannot be held liable under section 1983 unless action pursuant to official municipal policy [or custom] caused a constitutional tort,\u201d Burton, 118 N.C. App. at 685, 457 S.E.2d at 334, summary judgment was not proper for the City on the basis that no constitutional violation occurred as we have reinstated plaintiff\u2019s claims against Acker. Thus,\n[assuming arguendo [plaintiff] suffered a deprivation of her federal rights, it is by now well settled that a municipality is only liable under section 1983 if it causes such a deprivation through an official policy or custom. Municipal policy may be found in written ordinances and regulations, in certain affirmative decisions of individual policymaking officials, or in certain omissions on the part of policymaking officials that manifest deliberate indifference to the rights of citizens. Outside of such formal deci-sionmaking channels, a municipal custom may arise if a practice is so \u201cpersistent and widespread\u201d and \u201cso permanent and well settled as to constitute a \u2018custom or usage\u2019 with the force of law.\u201d\nCarter, 164 F.3d at 218 (citations omitted). The municipality must have had, at the time of the incident, actual or constructive knowledge that the practice had become customary. See Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987).\nWhere a plaintiff claims the municipality has caused an employee to inflict an injury, \u201crigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.\u201d Board of Comm\u2019rs of Bryan City v. Brown, 520 U.S. 397, 405, 137 L. Ed. 2d 626, 640 (1997); see also Spell, 824 F.2d at 1388 (plaintiff must prove an \u201caffirmative link\u201d between the custom and the violation). Further, \u201ca plaintiff cannot rely upon scattershot accusations of unrelated constitutional violations to prove either that a municipality was indifferent to the risk of her specific injury or that it was the moving force behind her deprivation.\u201d Carter, 164 F.3d at 218; see also Canton v. Harris, 489 U.S. 378, 391, 103 L. Ed. 2d 412, 428 (1989) (\u201c[Tjhe identified deficiency . . . must be closely related to the ultimate injury.\u201d).\nPlaintiff alleges,\nthere is a well-known, well-tolerated pattern, practice, custom or usage of [the City] ... to foster and allow an atmosphere of repression and lawlessness by not punishing police officers who assault, batter, or violate the Fourth Amendment rights of Durham residents, or use unlawful process against citizens, including but not limited to falsely charging citizens with a crime after an officer uses excessive force or is angered by a citizen\u2019s exercise of their rights.\nIn her complaint, plaintiff cited ten incidents that were \u201cexample[s] of the . . . custom.\u201d However, two of these incidents involved illegal searches, not false arrests or uses of excessive force, and as such are insufficiently related to plaintiffs claims to be relevant. See Carter, 164 F.3d at 219 (refusing to consider past incidents of alleged excessive force when plaintiff\u2019s claims were for false arrest and unreasonable search and seizure). A third example alleges only that a \u201cwoman\u201d was charged with resisting an officer \u201cafter the officer became angered\u201d by the woman. While plaintiff states the charges against the woman were dismissed, plaintiff does not allege that the woman\u2019s right to be free from false arrest was violated. Thus, this incident is also irrelevant. See id.\nPlaintiff\u2019s remaining examples are as follows: (1) in 1994, an officer fractured Kimberly Porter\u2019s finger, then falsely charged her with trespass \u201cafter the officer became angered by\u201d her; the officer was not punished; (2) in a 1994 incident between Margaret Dukes (Dukes), Reta Scarlett (Scarlett), and an officer, the City admitted Dukes\u2019 Fourth Amendment rights had been violated by an unlawful arrest, \u201cpaid a very large monetary settlement\u201d to Dukes, but stated in a press release it \u201cwas not admitting wrongdoing by anyone\u201d and did not discipline anyone involved in the incident; (3) in 1993, a woman was falsely charged with resisting an officer after the officer became angered by the woman; (4) in 1993, excessive force was used against Glennis E. Jones II after an unlawful traffic stop by an officer; the officer was not disciplined; (5) in the mid-1980\u2019s, excessive force was used against a \u201csuspect\u201d who \u201cpos[ed] no threat\u201d; the officer \u201cis now in the training division\u201d of the police department; (6) in 1978, a man was falsely charged with various traffic and criminal offenses and was beaten by the arresting officer; this officer has been promoted; and (7) City records \u201cindicate that there have been at least twenty (20) instances in which the Police Department has sustained complaints for assault and/or violations of\u2019 department regulations regarding the use of force, but no officers have been terminated or referred for criminal prosecution.\nThe City in its answer admitted that the confrontations noted in examples one through six occurred, but denied that any of the arrests were unlawful or that excessive force was used and specifically denied the existence of a \u201cpattern, practice, custom or usage\u201d of assault and use of excessive force by its officers.\nPlaintiff submitted no further evidence to the trial court regarding examples one, three, four, five, and six. Further, although plaintiff\u2019s complaint was verified, plaintiff testified in a later deposition she had no personal knowledge \u201cother than what [she] may have been told by [her] attorneys\u201d of the incidents. Even if we were to consider plaintiffs complaint to be an affidavit, it is the long-standing rule of this Court that affidavits must be \u201cmade on the affiant\u2019s personal knowledge.\u201d Singleton v. Stewart, 280 N.C. 460, 467, 186 S.E.2d 400, 405 (1972). Thus, any portion of plaintiffs affidavit not based on personal knowledge \u201ccould not have been properly considered by the trial judge\u201d on summary judgment. Id.\nIn the instant case, plaintiff \u201cmay not rest upon the mere allegations ... of [her] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.\u201d G.S. \u00a7 1A-1, Rule 56(e). As plaintiff has provided no evidence beyond \u201cmere allegations,\u201d id., indicating the circumstances surrounding the incidents, we are unable even to infer that a false arrest or use of excessive force occurred therein. We thus decline to consider these incidents in our review of the propriety of the trial court\u2019s summary judgment order. See Briley v. Farabow, 348 N.C. 537, 544, 501 S.E.2d 649, 654 (1998) (holding that \u201cunsupported, conclusory allegations are simply insufficient to create the existence of a genuine issue of material fact where the moving party has offered a proper evidentiary showing\u201d).\nWe now turn to plaintiff\u2019s remaining examples. As to example seven, plaintiff submitted a document entitled \u201cSustained IA Cases With Disciplinary Action Taken.\u201d This document indicates that several complaints of assault and excessive force have been made against Durham police officers; however, the document also indicates that in each case, the officer involved was either given a written or verbal reprimand, suspended, or ordered to undergo counseling. Therefore, this evidence \u201cdoes not support a conclusion that the City is deliberately indifferent to or condones improper behavior on the part of its officers. In fact, it shows just the opposite.\u201d Carter, 164 F.3d at 220 (holding that municipality did not condone conduct where officer accused of false arrest was suspended by department).\nAs to example two regarding Dukes and Scarlett, plaintiff submitted the City\u2019s answers to interrogatories, in which the City admitted (1) the stop and search of Dukes and Scarlett was unauthorized, (2) the force used therein was unauthorized and therefore excessive, and (3) no officer was disciplined for that incident. Plaintiff also submitted a 26 August 1997 letter from City Manager P. Lamont Ewell (Ewell) apologizing to Dukes for the unauthorized stop and search and use of excessive force.\nFinally, plaintiff submitted an 18 July 1995 letter from former police chief Jackie W. McNeil (McNeil), not specifically related to any of plaintiff\u2019s ten examples, in which McNeil admitted he knew of citizen complaints that officers had \u201cphysically] abus[ed] citizens.\u201d The letter provided no details of any of the incidents nor did it indicate how many incidents had occurred.\nMunicipal fault for allowing... a developed \u201ccustom or usage\u201d to continue requires (1) actual or constructive knowledge of its existence by responsible policymakers, and (2) their failure, as a matter of specific intent or deliberate indifference, thereafter to correct or stop the practices.\nSpell, 824 F.2d at 1391. Assuming arguendo the letters from McNeil and Ewell indicate active or constructive knowledge of a custom of false arrests or use of excessive force by Durham police officers, plaintiff presented insufficient evidence that the City failed to correct or stop the practices due to its deliberate indifference to citizens\u2019 rights. See id.\nPlaintiff has provided competent evidence of only one incident (the Dukes/Scarlett incident), other than the one between herself and Acker, in which no officers were disciplined for a false arrest or use of excessive force against a citizen. This single episode is insufficient to constitute \u201cthe \u2018widespread and permanent\u2019 practice necessary to establish municipal custom.\u201d Carter, 164 F.3d at 220 (quoting Greensboro Prof. Fire Fighters Ass\u2019n v. Greensboro, 64 F.3d 962, 967 (4th Cir. 1995)). The trial court therefore properly granted the City\u2019s motion for summary judgment as to plaintiff\u2019s section 1983 claims.\nB. State constitutional claims\nWe also affirm the trial court\u2019s grant of summary judgment as to plaintiff\u2019s North Carolina constitutional claims. First, plaintiff alleges in her brief that she has \u201craised a free speech claim against\u201d the City. However, nothing in the record indicates that plaintiffs right to free speech was violated in any way, and plaintiff does not allege, either in her complaint or in her brief to this Court, that any action by Acker or the City has restricted her speech or deterred her from speaking on any subject. The court was correct to dismiss this claim.\nAs to plaintiff\u2019s remaining state constitutional claims, we are guided by the principle that \u201ca direct cause of action under the State Constitution is permitted only \u2018in the absence of an adequate state remedy.\u2019 \u201d Davis, 116 N.C. App. at 675, 449 S.E.2d at 247 (quoting Corum, 330 N.C. at 782, 413 S.E.2d at 289). The judiciary \u201cmust bow to established claims and remedies where these provide an alternative to the extraordinary exercise of its inherent constitutional power.\u201d Corum, 330 N.C. at 784, 413 S.E.2d at 291.\nAs we have reversed the trial court\u2019s grant of summary judgment on plaintiff\u2019s state tort law claims against Acker, there is an adequate state remedy for plaintiff\u2019s alleged injury resulting from Acker\u2019s conduct. See Davis, 116 N.C. App. at 675, 449 S.E.2d at 248 (holding that common law false imprisonment claim adequately protects \u201cconstitutional right not to be unlawfully imprisoned\u201d and deprived of liberty). Plaintiff concedes as much in her brief, noting that only if this Court should find plaintiff \u201chas no common law cause of action against. . . Acker in his individual capacity\u201d should her claims arising under Article I, \u00a7\u00a7 19-21, 35, and 36, stand. The trial court thus properly entered summary judgment in favor of the City on each of plaintiff\u2019s state constitutional claims.\nC. Award of costs\nPlaintiff also assigns error to the trial court\u2019s award of costs to the City. The court\u2019s order granting summary judgment simply states \u201c[t]he costs of this action shall be taxed against [pjlaintiff.\u201d Plaintiff does not argue it was error to tax costs to her, but rather argues it was error for the trial court not to include language in the order \u201cmaking it clear that costs did not include attorney\u2019s fees.\u201d\nThe award of attorney\u2019s fees in a section 1983 action is governed by 42 U.S.C. \u00a7 1988 (1994), which states \u201cthe court, in its discretion, may allow the prevailing party... a reasonable attorney\u2019s fee as part of the costs.\u201d (emphasis added). Plaintiff apparently is concerned attorney\u2019s fees will be assessed herein as part of the costs awarded by the court.\nPlaintiff correctly notes that attorney\u2019s fees may be awarded under section 1988 to a prevailing defendant only \u201cupon a finding that the plaintiff\u2019s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.\u201d Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 54 L. Ed. 2d 648, 657 (1978) (emphasis added). As the trial court made no such finding, no attorney\u2019s fees may be awarded to the City on the basis of this order. See Hughes v. Rowe, 449 U.S. 5, 15, 66 L. Ed. 2d 163, 173 (1980).\nIn addition, the record shows no indication that the City has moved for an award of attorney\u2019s fees. In fact, in its brief, the City states it \u201chas no objection to modifying the order and judgment to make plain that as used therein the word \u2018costs\u2019 does not include attorneys\u2019 fees,\u201d so long as such alteration does not foreclose its ability to later seek an award of attorney\u2019s fees. Thus, we hold that the order at issue awards only costs, not attorney\u2019s fees, to the City.\nIII. Plaintiff\u2019s motion for partial summary judgment\nFinally, plaintiff assigns error to the trial court\u2019s denial of her motion for partial summary judgment and/or request for the trial court to take judicial notice. Plaintiff moved for partial summary judgment on the issue of whether plaintiff was seized by Acker. However, as we have discussed previously, summary judgment was not appropriate on this issue as there are genuine issues of material fact to be resolved, i.e., whether a reasonable person could believe she was not free to leave the school bus during the incident between Acker and plaintiff. See Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509.\nPlaintiff asked the trial court to take judicial notice of the following:\n2. That on or about May 7, 1996, Durham Police officers had no authority under state law to arrest a person for a motor vehicle infraction.\n3. That . . . Acker, an off-duty Durham Police Corporal, had no authority to arrest [p]laintiff... for a motor vehicle infraction.\n4. Since approximately 1986, law enforcement officers in North Carolina have had no authority to arrest a person for a motor vehicle infraction.\n5. Durham Police Department rules and regulations in effect during 1996 state:\n2.25 Traffic Stops in Personal Vehicles\nOff-duty officers in their personal vehicles shall not stop or attempt to stop motorists for traffic violations or other minor offenses.\nJudicial notice of adjudicative facts is governed by N.C.G.S. \u00a7 8C-1, Rule 201 (1999). Adjudicative facts are \u201cthe facts of the particular case,\u201d including \u201cwho did what, where, when, how, and with what motive or intent,\u201d and must be distinguished from legislative facts, defined as \u201cthose which have relevance to legal reasoning.\u201d Id., commentary.\n\u201cFacts\u201d two through four are not adjudicative facts, but are more akin to legislative facts. While our courts do take judicial notice of state laws, see, e.g., Wikel v. Commissioners, 120 N.C. 451, 452, 27 S.E. 117, 117 (1897) (\u201ccourt takes judicial notice ... of ... a public act\u201d), plaintiff did not ask the court to take judicial notice of any specific general statute. Cf. G.S. \u00a7 8C-1, Rule 201(d) (Court \u201cshall take judicial notice\u201d of adjudicative fact only if supplied with \u201cnecessary information.\u201d). Rather, \u201cfacts\u201d two through four are best characterized as legal conclusions, which are not a proper subject for judicial notice.\n\u201cFact\u201d five simply recites a purported regulation of the Durham Police Department. However, our courts may not take judicial notice of municipal ordinances, see Fulghum v. Selma, 238 N.C. 100, 105, 76 S.E.2d 368, 371 (1953), much less police department regulations. The court thus properly denied plaintiffs motion.\nTo summarize, the court\u2019s order granting summary judgment in favor of Acker is reversed, and the court\u2019s orders denying plaintiff\u2019s motion for partial summary judgment and granting summary judgment in favor of the City are affirmed. We vacate the award of costs to Acker as premature and hold that the award of costs to the City does not include an award of attorney\u2019s fees.\nAffirmed in part, reversed in part, and vacated in part.\nJudges WYNN and MARTIN concur.\n. Neither Acker nor the City has argued to this Court that Acker was not acting under color of law at the time of the incident, as required to impose liability pursuant to section 1983. Thus, we do not address the issue.\n. Plaintiff filed a motion in limine with the trial court requesting that Acker be judicially estopped \u201cfrom claiming [G.S. \u00a7 20-114.1(a) as a] new, alternative ground for his seizure and arrest of [p]laintiff.\u201d Plaintiff alleges that Acker did not seek to justify his conduct pursuant to G.S. \u00a7 20-114.1(a) until 1999, approximately three years after the incident in question. See G.S. \u00a7 15A-401(c)(2) (an officer, \u201c[u]pon making an arrest, . . . must . . . [a]s promptly as is reasonable under the circumstances, inform the arrested person of the cause of the arrest\u201d). However, the record on appeal indicates this motion was not ruled on by the trial court, and we therefore may not review the merits of the motion. See N.C. R. App. P. 10(b)(1) (to preserve question for appellate review, party must \u201cobtain a ruling upon [its] .. . motion\u201d).\n. We assume without deciding that Acker\u2019s order was \u201clawful.\u201d\n. We feel compelled to note that if Acker was acting outside the scope of his authority, i.e., acting not as a police officer but as a private citizen, he also may not have been acting \u201cunder color of law,\u201d as required to sustain a section 1983 claim. See Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975) (\u201cActs of police officers in the ambit of their personal, private pursuits fall outside of\u2019 section 1983.); see also Revene v. Charles County Com\u2019rs, 882 F.2d 870, 872 (4th Cir. 1989) (\u201c[T]he lack of the outward \u2022indicia suggestive of state authority \u2014 such as being on duty, wearing a uniform, or driving a patrol car \u2014 are not alone determinative of whether a police officer is acting under color of state law[; r]ather, the nature of the act performed is controlling.\u201d). As this issue was not raised by the parties, however, we decline to address it further.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Alexander Chams and Karen Bethea-Shields for plaintiff-appellant.", "Newsom, Graham, Hedrick & Kennon, P.A., by Joel M. Craig and Thomas H. Lee, Jr., for defendant-appellee Robert Charles Acker.", "Faison & Gillespie, by Reginald B. Gillespie, Jr. and Keith D. Bums, and Patrick W. Baker, for defendant-appellee City of Durham." ], "corrections": "", "head_matter": "ROSALYN GLENN-ROBINSON, Plaintiff v. ROBERT CHARLES ACKER; CITY OF DURHAM, NORTH CAROLINA, Defendants\nNos. COA99-894, COA99-1116\n(Filed 5 December 2000)\n1. Civil Rights\u2014 section 1983 claim \u2014 off-duty officer \u2014 false arrest \u2014 freedom to leave \u2014 issue of fact\nSummary judgment should not have been granted for defendant Acker on a 42 U.S.C. \u00a7 1983 claim for false arrest where Acker was an off-duty police officer who became involved in a confrontation with a school bus driver and the driver brought an action including a section 1983 claim and state claims for assault and battery, false imprisonment, and violation of state constitutional rights. There were genuine issues of fact as to whether a reasonable person would have felt free to leave and whether plaintiff was arrested rather than merely seized.\n2. Civil Rights\u2014 section 1983 claim \u2014 off-duty officer \u2014 false arrest \u2014 probable cause \u2014 issue of fact\nSummary judgment should not have been granted for defendant Acker on a 42 U.S.C. \u00a7 1983 claim for false arrest where Acker was an off-duty police officer who became involved in a confrontation with a school bus driver. The existence of probable cause was an issue of fact because Acker originally stated that plaintiff was under arrest for violation of a city ordinance prohibiting stopping in a street so as to impede traffic, but officers are not empowered to arrest for infractions. Acker later contended that he had probable cause to arrest for the misdemeanor violation of willfully failing to comply with a lawful order by a law enforcement officer, but the trier of fact could reasonably infer that plaintiff did not know that Acker was an officer; an officer may not assume that others will know he is a police officer where he simply states as much and flashes \u201csomething,\u201d while wearing civilian clothing, working off-duty, and acting \u201cout of control.\u201d\n3. Civil Rights\u2014 section 1983 claim \u2014 off-duty officer \u2014 false arrest \u2014 qualified immunity\nSummary judgment should not have been granted for defendant Acker on the basis of qualified immunity on a 42 U.S.C. \u00a7 1983 claim for false arrest where Acker was an off-duty police officer who became involved in a confrontation with a school bus driver, and plaintiff\u2019s right to be free from an unconstitutional arrest was clearly established under plaintiffs version of the facts, but whether the incident occurred in the manner described by plaintiff was in dispute.\n4. Civil Rights\u2014 section 1983 claim \u2014 off-duty officer \u2014 excessive force\nSummary judgment should not have been granted for defendant Acker on a 42 U.S.C. \u00a7 1983 claim for excessive force where Acker was an off-duty police officer who became involved in a confrontation with a school bus driver and there were genuine issues of material fact as to whether the incident occurred in the manner described by plaintiff and regarding the existence of probable cause. If no probable cause existed for the arrest, then any use of force was unlawful.\n5. Assault and Battery; False Imprisonment\u2014 off-dnty officer \u2014 probable cause \u2014 issue of fact\nSummary judgment should not have been granted for defendant Acker on state claims for assault and battery and false imprisonment where Acker was an off-duty police officer who became involved in a confrontation with a school bus driver. The trier of fact should decide the reasonableness of Acker\u2019s belief that defendant had committed a criminal offense and whether he was entitled to use any force against plaintiff. Without probable cause, Acker loses the benefit of N.C.G.S. \u00a7 15A-401(d) and any use of force becomes at least a technical assault and battery.\n6. Police Officers\u2014 off-duty \u2014 assault and false imprisonment \u2014 immunity\nDefendant Acker, an off-duty police officer, was not protected by the doctrine of official immunity from state claims of assault and false imprisonment arising from a confrontation with a school bus driver where plaintiff forecast sufficient evidence of malice and actions outside the scope of Acker\u2019s official duties.\n7. Civil Rights\u2014 section 1983 claim \u2014 off-duty officer \u2014 action against city \u2014 practice and custom\nThe trial court properly granted defendant-city\u2019s motion for summary judgment on 42 U.S.C. \u00a7 1983 claims arising from a confrontation between an off-duty police officer and a school bus driver where plaintiff provided competent evidence of only one other incident in which no officers were disciplined for a false arrest or the use of excessive force against a citizen. A municipality cannot be held liable under section 1983 unless action pursuant to official municipal policy or custom caused a constitutional tort, and this single episode is insufficient to constitute the widespread and permanent practice necessary to establish municipal custom.\n8. Constitutional Law\u2014 right to free speech \u2014 adequate state remedies\nSummary judgment was properly granted for defendant-city on state constitutional claims arising from a confrontation between an off-duty police officer and a school bus driver where plaintiff brought a free speech claim, but nothing indicates that plaintiffs right to free speech was violated in any way, and adequate state remedies existed on the other claims.\n9. Costs\u2014 attorney fees \u2014 section 1983 claim\nAn award of costs in an action arising from a confrontation between an off-duty police officer and a school bus driver did not include attorney fees where the trial court did not find that the action was frivolous, unreasonable, or brought without foundation, as required by 42 U.S.C. \u00a7 1983, and there was no indication that the City moved for an award of attorney fees.\n10.Evidence\u2014 judicial notice \u2014 police department regulations\nThe trial court correctly denied plaintiffs motion for partial summary judgment where plaintiff asked the court to take judicial notice that officers had no authority to arrest for a motor vehicle infraction, that defendant, an off-duty officer, had no authority to arrest plaintiff for a motor vehicle infraction, and that Durham Police Department rules stated that off-duty officers in their private vehicles should not stop motorists for traffic violations. North Carolina courts may not take judicial notice of municipal ordinances, much less police department regulations, and the remaining \u201cfacts\u201d are best characterized as legal conclusions, which are not a proper subject for judicial notice. N.C.G.S. \u00a7 8C-1, Rule 201.\nAppeal by plaintiff from order filed 18 March 1999, order and judgment filed 19 April 1999, order filed 23 June 1999, and order and judgment filed 24 June 1999 by Judge Orlando F. Hudson, Jr., in Durham County Superior Court. Heard in the Court of Appeals 10 May 2000.\nAlexander Chams and Karen Bethea-Shields for plaintiff-appellant.\nNewsom, Graham, Hedrick & Kennon, P.A., by Joel M. Craig and Thomas H. Lee, Jr., for defendant-appellee Robert Charles Acker.\nFaison & Gillespie, by Reginald B. Gillespie, Jr. and Keith D. Bums, and Patrick W. Baker, for defendant-appellee City of Durham." }, "file_name": "0606-01", "first_page_order": 638, "last_page_order": 666 }