Horton v. City of Columbia

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Tynaysha Horton, Appellant,

v.

City of Columbia, Respondent.

Appellate Case No. 2012-211168

Appeal From Richland County
Alison Renee Lee, Circuit Court Judge

Opinion No. 2014-UP-491
Heard October 16, 2013 – Filed February 26, 2014

AFFIRMED

James Emerson Smith, Jr. and Dylan Ward Goff, both of
James E. Smith Jr., PA, of Columbia, for Appellant.

Jeanne J. Brooker and David Amado Fernandez, both of
Columbia, for Respondent.

KONDUROS, J.: Tynaysha Horton appeals the circuit court's grant of summary
judgment in favor of the City of Columbia regarding her claims for false arrest,
false imprisonment, malicious prosecution, negligence, and assault and battery.
We affirm.

FACTS/PROCEDURAL HISTORY

On September 9, 2009, a cinder block was thrown through a glass door to break
into the Roly Poly restaurant in Columbia. Officer Peter Currie of the City of
Columbia Police Department lifted a partial latent fingerprint from the door where
the glass had been pushed up to gain entry. Officer Currie ran the print through the
Automatic Fingerprint Identification System (AFIS) of the South Carolina Law
Enforcement Division (SLED). AFIS returned twenty possible matches, with the
fingerprint of Horton identified as the most probable match. Officer Currie then
conducted a review of Horton's AFIS print and determined it matched the partial
print taken from the crime scene.1 Officer Currie informed Officer Roberta Tyler,
the detective assigned to investigate the robbery, that he had matched the
fingerprint of the robber and identified Horton as the person who broke into the
restaurant.

On September 15, 2009, Officer Tyler called Horton's probation officer, Albert
Smith, in Bennettsville, South Carolina, and informed Agent Smith her department
was seeking a warrant for Horton's arrest based on fingerprints lifted from a crime
scene in Columbia. Agent Smith informed Officer Tyler of his personal
reservations regarding the possibility that Horton committed the crime based upon
her lack of transportation and the recent birth of her third child. On September 17,
2009, Officer Tyler appeared before a ministerial recorder of the City of Columbia
and disclosed relevant facts about the crime. Officer Tyler did not disclose any
information relayed to her by Agent Smith. The ministerial recorder issued
warrants for Horton's arrest for second-degree burglary and petit larceny. Agent
Smith assisted in having Horton surrender herself to Marlboro County law
enforcement officers later that day. Officer Tyler transported Horton to Columbia
and took her to the detention center on September 18, 2009. Horton was not
fingerprinted at the time of her arrest. After three days in detention and several
requests to be fingerprinted, Horton was fingerprinted by Officer Currie on
September 21, 2009. After examining the prints and sending them to SLED for

1
This review included analysis of the fingerprint by two other officers.
further review, the authorities could not confirm a match for the prints taken from
the crime scene. Horton was immediately released from custody and police
officials drove her to Bishopville to meet her mother and return home.

Horton filed suit alleging causes of action for false arrest, false imprisonment,
malicious prosecution, negligence, and assault and battery. The City moved for
summary judgment as to all claims and the circuit court granted the City's motion.
This appeal followed.

LAW/ANALYSIS

I. The Two-Issue Rule

The City argues this court should affirm the circuit court's grant of summary
judgment based on the two-issue rule. We agree in part.

"Under the two issue rule, where a decision is based on more than one ground, the
appellate court will affirm unless the appellant appeals all grounds because the
unappealed ground will become the law of the case." Jones v. Lott, 387 S.C. 339,
346, 692 S.E.2d 900, 903 (2010); see also First Union Nat'l Bank of S.C. v. Soden,
333 S.C. 554, 566, 511 S.E.2d 372, 378 (Ct. App. 1998) (holding an "unchallenged
ruling, right or wrong, is the law of the case and requires affirmance").

In Jones, Jones's estate sued the Richland County sheriff and other officers for
wrongful death after Jones was shot attempting to escape police custody. 387 S.C.
at 344, 692 S.E.2d at 902. At trial, Jones asserted the sheriff was grossly
negligent.2 Id. The trial court granted a directed verdict in the defendant's favor
finding he was not grossly negligent under the circumstances, and because he had
immunity under subsection 15-78-60(6) of the South Carolina Code (2005) (the
Tort Claims Act). Id. On appeal, Jones stated his issue as follows: "Did the trial
court err in finding the use of deadly force by the Richland County deputies was
objectively reasonable, as a matter of law, and that the officers were not negligent,
as a matter of law?" Id. at 347-48, 692 S.E.2d at 904. In determining whether the
two-issue rule procedurally barred Jones's appeal, the supreme court stated:

2
The circuit court granted summary judgment in favor of the other defendants but
allowed the case to proceed as to Jones's claim of gross negligence against the
sheriff in his official capacity.
There was no mention of [sub]section 15-78-60(6) or
Tort Claims Act immunity [in Jones's issues on appeal]. .
. . The issue raised by [Jones] was not concise and direct,
but rather a broad general statement that ought to be
disregarded by this court. Hence, because [Jones] failed
to preserve the issue for review, it became the law of the
case under the two issue rule.

Id. at 348, 692 S.E.2d at 904.

In this case, the circuit court spent the bulk of its time considering the probable
cause issue in deciding to grant summary judgment. However, in section E of the
final order, the circuit court addressed the City's Tort Claims Immunity argument
as an additional sustaining ground. Subsection 15-78-60(5) of the South Carolina
Code (2005) precludes liability by a governmental entity for a loss resulting from
the exercise of discretion or judgment by a governmental employee, or the
performance or failure to perform any act or service that is in the discretion or
judgment of the employee. The final order and the City's argument clearly focused
on this section as it applied to Officer Currie's erroneous identification of Horton's
fingerprints, suggesting the only cause of action at issue is Horton's negligence
claim. However, the order states, "The City is also entitled to summary judgment
on the claims for false arrest, false imprisonment, malicious prosecution and
negligence based upon this provision of the South Carolina Tort Claims Act."
While this ruling by the circuit court may be erroneous as to the false arrest, false
imprisonment, and malicious prosecution claims, Horton makes no mention of
subsection 15-78-60(5) or the Tort Claims Act in her appellate brief. We cannot
conclude that an attack on the Tort Claims Act ruling is inherent in Horton's
argument as to lack of probable cause.3 Therefore, the circuit court's grant of
summary judgment to the City with respect to negligence, false
arrest/imprisonment, and malicious prosecution is affirmed based on the two-issue
rule.

3
Horton's issue on appeal is broad and does not provide any direction as to why
the application of the Tort Claims Act was erroneous. It states: "Did the order
issued by the circuit court granting the City's motion for summary judgment
constitute a clearly arbitrary and capricious abuse of discretion as there were
genuine issues of material fact in dispute?"
II. Claims on the Merits

Horton's only remaining cause of action is for assault and battery. She maintains
the circuit court erred in finding that because her arrest was based on a facially
valid warrant and she did not allege the use of excessive force, the claim failed as a
matter of law. We disagree in some respects with the circuit court's rationale but
affirm its granting of summary judgment to the City.

In Roberts v. City of Forest Acres, 902 F. Supp. 662, 671-72 (D.S.C. 1995), the
court concluded as a matter of law that no assault and battery occurred when an
officer lawfully arrested Roberts based on probable cause and the use of excessive
force was not alleged. The court found Roberts's arrest "was lawful because it was
supported by probable cause. Therefore, [the officer's] action in arresting [him]
did not constitute assault or battery. . . . " Id. at 672. The court further provided
Roberts "does not allege [the arresting officer] used excessive force. . . . [His]
actions are insufficient, as a matter of law, to support a claim of assault or battery,
given this court's conclusion that [Roberts's] arrest was based on probable cause."
Id. at 672 n.2. In addressing assault and battery claims against police authority the
Supreme Court of South Carolina has stated:

An unlawful arrest, or an attempt to make an unlawful
arrest, stands upon the same footing as any other
nonfelonious assault, or as a common assault and battery.
The person who is so unlawfully arrested, or against
whom such an unlawful attempt is directed, is not bound
to yield, and may resist force with force, but he is not
authorized to go beyond the line of force proportioned to
the character of the assault, or he in turn becomes a
wrongdoer . . . .

State v. McGowan, 347 S.C. 618, 623, 557 S.E.2d 657, 660 (2001) (emphasis
omitted) (quoting State v. Francis, 152 S.C. 17, 34-35, 149 S.E. 348, 355-56
(1929)).
South Carolina appears to be in the minority of jurisdictions where an unlawful
arrest, even in the absence of excessive force, can support a claim for assault and
battery.4 In Roberts, the district court, applying South Carolina state law to the
claim of assault and battery, rested its conclusion to dismiss the claim upon the fact
that Roberts's arrest was lawful—based on probable cause. Roberts, 902 F. Supp.
at 672 n.2. In McGowan, the court was concerned with whether McGowan had
used excessive force in resisting arrest. McGowan, 347 S.C. at 624-26, 557 S.E.2d
at 661-62. Although Horton did not resist arrest, the basic principle of law that an
unlawful arrest may constitute a battery is still applicable. Furthermore, in
Francis, upon which McGowan relies in part, the court recited a jury instruction
that was not objected to on appeal. Francis, 152 S.C. at 32, 149 S.E. at 354. That
charge supports the notion that police officers are not immune from assault and
battery claims if they effect an unlawful arrest. The charge stated: "If an arrest is
unlawful, the defendant had the right not only to resist it, but it made the person or
officer attempting such arrest liable for assault and battery and false arrest." Id.
Based on the foregoing cases, we conclude a police officer may be liable for
assault and battery for making an unlawful arrest even in the absence of excessive
force allegations.
The next question presented is whether Horton's arrest was lawful.

The fundamental issue in determining the lawfulness of
an arrest is whether there was probable cause to make the
arrest. Probable cause is defined as a good faith belief
that a person is guilty of a crime when this belief rests on
such grounds as would induce an ordinarily prudent and
cautious man, under the circumstances, to believe
likewise.

Law v. S.C. Dep't of Corr., 368 S.C. 424, 441, 629 S.E.2d 642, 651 (2008) (citation
omitted).

The question of whether probable cause exists is ordinarily a jury question unless
the evidence yields but one conclusion as a matter of law. Id. The party alleging a
lack of probable cause bears the burden of proof on that point. Jackson v. City of
Abbeville, 366 S.C. 662, 666, 623 S.E.2d 656, 658 (Ct. App. 2005).
4
"While, in some jurisdictions, a police officer who makes an unlawful arrest is
liable for battery for touching the arrestee, it is usually held a battery does not
occur in making an unlawful arrest absent the use of excessive force." 6 Am. Jur.
2d Assault and Battery § 98 (2008) (footnote omitted).
Horton contends the circuit court erred in finding Officer Tyler's affidavit provided
probable cause for her arrest, because Officer Tyler omitted any information from
Agent Smith regarding Horton's transportation and family issues. We disagree.

"Franks [v. Delaware, 438 U.S. 154 (1978)] addressed an act of commission in
which false information had been included in the warrant affidavit. However, the
Franks test also applies to acts of omission in which exculpatory material is left out
of the affidavit." State v. Missouri, 337 S.C. 548, 554, 524 S.E.2d 394, 397 (1999).
"To be entitled to a Franks hearing for an alleged omission, the challenger must
make a preliminary showing that the information in question was omitted with the
intent to make, or in reckless disregard of whether it made, the affidavit misleading
to the issuing judge. There will be no Franks violation if the affidavit, including
the omitted data, still contains sufficient information to establish probable cause."
Id. (footnote omitted). Entitlement to a Franks hearing is a matter of law subject
to de novo review. United States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008).

While omissions may not be per se immune from
inquiry, the affirmative inclusion of false information in
an affidavit is more likely to present a question of
impermissible official conduct than a failure to include a
matter that might be construed as exculpatory. This latter
situation potentially opens officers to endless conjecture
about investigative leads, fragments of information, or
other matter that might, if included, have redounded to
defendant's benefit. The potential for endless rounds
of Franks hearings to contest facially sufficient warrants
is readily apparent.

United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990) (citations omitted).

Inferring bad motives from an officer's omission of information "collapses into a
single inquiry the two elements–'intentionality' and 'materiality'–which Franks
states are independently necessary." Id. A party attempting to demonstrate
information was intentionally or recklessly omitted from an affidavit bears a heavy
burden of proof. Tate, 524 F.3d at 454. "'[M]ere[ ] negligen[ce] in . . . recording
the facts relevant to a probable-cause determination' is not enough." Colkley, 899
F.2d at 301 (quoting Franks, 438 U.S. at 170).
In this case, as the circuit court noted, Horton offered no evidence Officer Tyler
omitted Smith's statements with the intent to mislead the ministerial recorder.
Colkley makes clear the Fourth Circuit's disdain for the notion that bad motive can
be inferred from the materiality of the omitted information. However, it is less
clear how the Fourth Circuit would evaluate the omission under the reckless
disregard prong of Franks.5 If reckless disregard can only be established by
affirmative proof, without reference to the nature of the omitted material, it is
difficult to imagine how any party would ever be entitled to a Franks hearing on
omitted information. Nevertheless, the Fourth Circuit has clearly set a very high
standard for establishing entitlement to a Franks hearing. Therefore, we agree
with the circuit court that Horton did not establish her entitlement to a Franks
hearing. Officer Tyler's affidavit and the arrest warrants are therefore reviewed
without the inclusion of Smith's statements and provide probable cause for
Horton's arrest. Consequently, her arrest was lawful, and it follows that her claim
for assault and battery fails as a matter of law and summary judgment was
appropriate.

CONCLUSION

We affirm summary judgment in favor of the City as to Horton's claims for false
arrest/imprisonment, malicious prosecution, and negligence based on the two-issue
rule. We affirm the grant of summary judgment in favor of the City on assault and
battery based on Horton's failure to meet the high burden of proving the intentional
or reckless omission of Agent Smith's statements from Officer Tyler's affidavit.

AFFIRMED.

FEW, C.J., and PIEPER, J., concur.

5
Notably, Colkley was a direct response to the district court's finding that because
the officer chose to omit certain information, as opposed to omitting it
accidentally, the intentionality requirement for a Franks hearing was satisfied.
Colkley, 899 F.2d at 300.