Appeals Court rejects qualified immunity for Avery sheriff, deputy in 2016 arrest

A federal Appeals Court has ruled that the Avery County sheriff and a deputy did not have qualified immunity from a lawsuit challenging a 2016 arrest as unconstitutional.

The unanimous decision Monday affirmed a trial court ruling against Kevin Frye, Avery’s sheriff at the time, and Lee Buchanan, the deputy in charge of sex offender registrations.

“They argue that they are entitled to qualified immunity because their arrest of David Thurston did not violate his Fourth Amendment rights,” wrote Judge Julius Richardson for the unanimous 4th Circuit panel. “And even if it did, they say, it did not violate clearly established law.”

“We disagree, finding that, when viewing the facts as the district court has given them to us, Thurston’s arrest was unconstitutional,” Richardson added. “We also conclude that the officers have failed to prove that they acted objectively reasonably in seeking Thurston’s arrest warrant.”

Thurston had pleaded guilty in 1992 to two counts of sexually assaulting minors in Montana. He moved to Avery County in 2015 and complied with the state’s sex offender registration rules.

Problems for Thurston arose when he planned to attend his nephew’s wedding in Washington in September 2016. More than one month ahead of time, Thurston informed Frye about the wedding invitation.

“Thurston’s biannual verification was due to be sent out around that same time,” Richardson wrote. “Mindful of these obligations, Thurston sought Sheriff Frye’s advice on how to comply with the law and asked for his permission to attend the wedding.”

After a series of texts, the sheriff granted permission and asked only that Thurston email a copy of a visitor registration form within 10 days of his arrival in Washington.

Thurston ended up spending more than a month in Washington. While he was away, the sheriff’s office mailed the sex offender verification form. Alerted that the form had arrived, Thurston contacted Frye “for guidance.” “But Sheriff Frye never responded, so Thurston decided to ‘let it lie,’ given their prior interactions,” Richardson wrote.

“The Sheriff’s Office, however, did not ‘let it lie.’ Instead, Deputy Buchanan began investigating Thurston,” Richardson explained. Thurston learned from a sheriff’s office in Washington that Buchanan was looking for him. Thurston then spoke to Buchanan, who told Thurston “erroneously” that it was illegal for him to be out of state for more than 30 days.

“Yet in the same breath, he also said that he had spoken with Sheriff Frye and had decided that, as long as Thurston was back in North Carolina by October 19, ‘there would be no problem,’” the court opinion continued.

Thurston met the deadline. “Even so, Deputy Buchanan discussed potential criminal liability with an assistant district attorney, who recommended that Deputy Buchanan pursue charges against Thurston. And on October 19—knowing that he and Sheriff Frye had given Thurston until that day to return to the state—Deputy Buchanan obtained a warrant from a local magistrate alleging three different criminal violations committed from September 19 to October 1,” Richardson explained.

Two days after the arrival deadline, Thurston delivered the completed verification form in person. “He was greeted with an arrest,” Richardson wrote. “He posted bail that same day, and the charges against him were eventually dropped as a ‘misunderstanding with regard to how to comply with technical requirements.’”

Thurston filed suit one year later. He alleged violations of his Fourth Amendment rights. Frye and Buchanan argued they were entitled to summary judgment in the case based on qualified immunity.

Appellate judges needed to answer two questions to test the Avery officials’ claim, Richardson explained. “First, has Thurston established that, when viewing the evidence most favorably to him, the officers violated his constitutional rights? If so, then have the officers shown that the asserted rights were not clearly established by law at the time of the interaction?”

“Put another way, have the officers established that it was not ‘clear to a reasonable officer that the conduct in which [they] allegedly engaged was unlawful in the situation [they] Confronted’?  Because we answer the first in the affirmative and the second in the negative, we affirm the district court’s denial of summary judgment,” Richardson wrote.

The 4th Circuit judges emphasized that “Thurston was trying to comply with the law.” “North Carolina law has clearly established that people do not act willfully when they are motived by a desire to comply with the law,” Richardson explained. “So when the officers sought and obtained an arrest warrant, they had affirmative knowledge that Thurston was not breaking the law.”

“No reasonable officer in such circumstances could believe that a warrant should issue,” the court opinion added. “Therefore, the warrant cannot establish the officers’ objective reasonableness.”

The opinion concluded with observations about qualified immunity.

“Qualified immunity is controversial and criticized,” Richardson wrote. “But it is binding. And it provides a powerful defense for officers who, while performing the critical services they provide to society, make reasonable mistakes in complying with the law.”

“And warrants serve a similar purpose. We recognize that ‘the magistrate is more qualified than the police officer to make a probable cause determination.’ Thus, a magistrate’s approval of a warrant application in the average case will be the ‘clearest Indication’ of the officer’s objective reasonableness,” Richardson explained. “But ‘clearest’ should not be confused with ‘absolute.’”

“In a narrow set of cases, where no reasonable officer would have sought the warrant, we cannot treat its issuance as evidence of objective reasonableness. Taking the facts as the district court has given them to us, we find that this is one such case, and that the officers have not carried their burden to prove objective reasonableness,” the judge added.

Judges Paul Niemeyer and Allison Jones Rushing joined Richardson’s opinion.

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