Virginia Lawyers Weekly VA Lawyers Weekly
Where a Stafford County deputy initially offered to assist the plaintiff with his disabled vehicle, but then demanded the plaintiff produce identification, that demand converted the voluntary encounter into an investigatory stop for which the officer lacked reasonable suspicion of criminal activity and for which he was not entitled to immunity.
Background
George Wingate III was driving down Jefferson Davis highway around 2 a.m. when his engine light came on. Mr. Wingate stooped near a streetlight to look under the hood. A Stafford County deputy patrolling the area, Deputy Scott Fulford, suspecting the car was disabled, pulled behind Wingate, hoping to help. But the officer’s roadside assistance quickly transformed into an investigatory stop, then an arrest, after Mr. Wingate declined to comply with Deputy Fulford’s request for identification.
This appeal arises out of Mr. Wingate’s civil suit, under 42 U.S.C. § 1983 and Virginia common law, challenging his stop, arrest and subsequent prosecution. The district court denied Mr. Wingate’s motion for summary judgment and granted summary judgment to Deputy Fulford and Lt. Pinzon on each of Mr. Wingate’s claims.
Stop
Deputy Fulford did not trigger the Fourth Amendment’s protections by merely driving up to Mr. Wingate to provide roadside assistance. But Deputy Fulford then told Mr. Wingate that he was not free to leave until he identified himself. This unambiguous restraint on Mr. Wingate’s liberty converted the previously voluntary encounter into a compelled detention—an investigatory stop.
Deputy Fulford argued before the district court that the stop was constitutional because, at that point, he reasonably suspected that Mr. Wingate was engaged in criminal activity— specifically, larceny. The district court agreed. The court concludes that the innocuous circumstances of this encounter fall short of indicating that criminal activity was afoot. The district court therefore erred in finding Fulford’s stop was supported by reasonable and particularized suspicion.
Arrest
Stafford County Ordinance § 17–7(c) makes it a crime “for any person at a public place or place open to the public to refuse to identify himself … at the request of a uniformed law-enforcement officer … if the surrounding circumstances are such as to indicate to a reasonable man that the public safety requires such identification.” Deputy Fulford and Lt. Pinzon argue that they had probable cause to arrest Mr. Wingate after he failed to identify himself.
But a valid investigatory stop, supported by Terry-level suspicion, is a constitutional prerequisite to enforcing stop and identify statutes. As discussed, Deputy Fulford’s initial stop was not justified at its inception. The officers do not argue, nor does the record suggest, that they acquired constitutionally adequate suspicion of criminal activity between the deputy’s initial stop and the officers’ eventual arrest. Accordingly the officers’ enforced Stafford County’s stop and identify statute outside the context of a valid Terry stop, and arrested Mr. Wingate on that basis. The arrest was therefore unconstitutional. The district court erred in holding otherwise.
Qualified immunity
Because this court’s prior decisions placed Deputy Fulford on notice that suspicion of criminal activity must arise from conduct that is more suggestive of criminal involvement than Mr. Wingate’s was, he is not entitled to qualified immunity for his unlawful investigatory stop.
The officers are, however, entitled to qualified immunity for their unlawful arrest under Stafford County Ordinance § 17-7(c). Until today, no federal court has prescribed the constitutional limits of § 17-7(c)’s application. As such, this right was not clearly established at the time of the arrest.
Common-law claims
Because the officers are entitled to qualified immunity on Mr. Wingate’s unlawful arrest claim under federal law, they are also entitled to the good faith defense to Mr. Wingate’s false arrest claim under Virginia law. And the officers are entitled to summary judgment on the malicious prosecution claim because the record before the district court is devoid of any evidence of malice as defined by Virginia law.
Affirmed in part, reversed in part, vacated in part and remanded with instructions.
Concurring opinion
Richardson, J., concurring:
The majority holds that constitutionally enforcing Stafford County Ordinance§ 17-7(c) requires “a valid investigatory stop, supported by Terry-level suspicion.” And in the circumstances this case presents, I agree that enforcing the ordinance required Terry-level suspicion. But I would be clear that we address only this case and not the constitutionality of applying an ordinance like this one outside the context of investigatory stops.
Wingate v. Fulford, Appeal No. 19-1700, Feb. 4, 2021. 4th Cir. (Gregory), from EDVA at Alexandria (Trenga). Victor M. Glasberg for Appellant. Alexander Francuzenko for Appellees. VLW 021-2-047. 25 pp.
