UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2016

PEGGY RUSS; TAFFY GAUSE,

Plaintiffs - Appellees,

v.

SID CAUSEY; ED MCMAHON; LACHLAN MACNEISH; DOUG PRICE; ERIC 

BROWN; VERNON JORDAN; OHIO CASUALTY INSURANCE COMPANY; 

BRANDON MATT JORDAN,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan,

Chief District Judge. (7:09-cv-00017-FL)

Argued: October 26, 2011 Decided: February 24, 2012

Before KING, GREGORY, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Gregory wrote the

majority opinion, in which Judge Wynn joined. Judge King wrote 

a dissenting opinion.

ARGUED: James R. Morgan, Jr., WOMBLE CARLYLE SANDRIDGE & RICE, 

PLLC, Winston-Salem, North Carolina, for Appellants. Matthew 

William Buckmiller, SHIPMAN & WRIGHT, LLP, Wilmington, North 

Carolina, for Appellees. ON BRIEF: Bradley O. Wood, Julie B. 

Bradburn, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem, 

North Carolina, for Appellants. Gary K. Shipman, SHIPMAN & 

WRIGHT, LLP, Wilmington, North Carolina, for Appellees.
2

Unpublished opinions are not binding precedent in this circuit.
3

GREGORY, Circuit Judge:

In this case, Plaintiffs-Appellees Peggy Russ and Taffy 

Gause asserted a number of claims for relief against the former 

sheriff of New Hanover County, Sid Causey, and a number of his 

deputies in both their individual and official capacities. 

Their claims are premised on the defendants’ conduct during the 

arrest of their son and brother, respectively, Gladwyn Taft

Russ, III (“GT Russ III”)1 at the funeral of their husband and 

father, Gladwyn Taft Russ Jr. (“GT Russ Jr.”). Specifically, 

Russ and Gause alleged (1) deprivation of their Fourth Amendment 

right to privacy in violation of 42 U.S.C. § 1983, (2) assault; 

(3) intentional infliction of emotional distress, (4) negligent 

infliction of emotional distress, (5) invasion of privacy, and 

(6) negligence. The defendants asserted various defenses, 

including governmental immunity and public officer’s immunity,

and moved for summary judgment. On August 5, 2010, the district 

court granted in part and denied in part the defendants’ motion 

for summary judgment.

At issue on appeal is the district court’s denial of 

defendants Eric Brown, B. Matt Jordan, and Doug Price’s motion 

for summary judgment as to the Plaintiffs-Appellees’ state law 

 

1 GT Russ III is not a party to this action.
4

claims for intentional infliction of emotional distress, 

negligent infliction of emotional distress, and negligence. In 

addition to allowing these claims to proceed against the 

defendants in their official capacities,2 the district court 

allowed these claims to proceed against defendants Brown, 

Jordan, and Price in their individual capacities, denying 

defendants’ affirmative defense of public officer’s immunity. 

Defendants argue that the district court erred in concluding 

that Brown, Jordan, and Price were not entitled to public 

officer’s immunity as a matter of law because PlaintiffsAppellees failed to produce evidence that the deputies’ actions 

were corrupt, malicious, or outside the scope of their official 

duties. We disagree. Because Plaintiffs-Appellees have put 

forth facts sufficient to create a genuine issue of material 

fact as to whether the officers acted with malice, an exception 

 

2 As to the claims against the defendants in their official

capacities -- which are in fact claims against the New Hanover 

County Sheriff’s Office –- the district court determined that 

the defendants were entitled to governmental immunity for 

damages in excess of $25,000 but that the Plaintiffs-Appellees

could recover against the defendants in their official 

capacities for intentional infliction of emotional distress, 

negligent infliction of emotional distress, and negligence up to 

$25,000. Because there is no proper basis for an interlocutory 

appeal of the claims against the defendants in their official

capacities, we decline to exercise pendant appellate 

jurisdiction over the denial of summary judgment as to these 

claims.
5

to public officer’s immunity, we affirm the denial of summary 

judgment.3

I.

We begin our analysis with a reconstruction of the events 

that transpired and gave rise to these claims. We then examine 

the malice exception to public officer’s immunity as applied to 

Plaintiffs-Appellees’ claims.

A.

On August 6, 2008, Glenda Sellars swore out a 

communicating-threats complaint against her husband, GT Russ 

III. A magistrate judge then issued a warrant for his arrest. 

Between August 8, 2008, and November 8, 2008, New Hanover County 

sheriff’s deputies attempted to serve the warrant on GT Russ III 

at his mobile home located directly behind his parents’ home. 

On each of these occasions, the deputies were unable to locate 

 

3 Thus, although the existence or absence of public 

officer’s immunity may be established, where appropriate, as a 

matter of law, it is also true that in other cases this issue 

presents a question of fact to be resolved by the jury. See, 

e.g., Showalter v. North Carolina Dept. of Crime Control and 

Public Safety, 183 N.C. App. 132, 137, 643 S.E.2d 649, 652 

(2007) (affirming denial of summary judgment because of open 

genuine issues of material fact in relation to officer’s alleged 

malice precluded judgment as a matter of law on the basis of 

public officer’s immunity).
6

GT Russ III or otherwise serve the warrant. Russ, the mother of 

GT Russ III, personally saw sheriff’s deputies attempt to serve 

the warrant three times and informed the deputies that GT Russ 

III and Sellars had reconciled and were in Tennessee and that 

Sellars wanted to withdraw her complaint and drop the charges 

against GT Russ III.

On November 1, 2008, GT Russ III returned to North Carolina 

to be with his father, GT Russ Jr., whose health was 

deteriorating rapidly. Upon his return, GT Russ III did not

attempt to surrender or turn himself in, nor did Russ inform 

anyone from the sheriff’s office that GT Russ III was back in 

town. Plaintiffs-Appellees and GT Russ III appeared to believe 

-– incorrectly -- that the criminal complaint had been 

withdrawn, and they were otherwise preoccupied with the failing 

health of GT Russ Jr.

On November 8, 2008, the sheriff’s office responded to a 

9-1-1 call from GT Russ III’s son, who stated that his father 

had slashed the tires and smashed the windows of his car and 

locked himself inside the house of Russ. Deputy Gonzalez, who 

had previously attempted to serve the arrest warrant on GT Russ 

III on a number of occasions, was the first to arrive on the 

scene. He verified the property damage and hoped to be able to 

serve the arrest warrant on GT Russ III. GT Russ III’s son 

advised Deputy Gonzalez that GT Russ III was alone in the house 
7

and that he had access to firearms. Deputy Gonzalez radioed for 

backup.

After backup arrived, Deputy Gonzalez knocked on the door 

of the house and demanded that GT Russ III surrender to him, but 

GT Russ III refused to do so. Plaintiffs-Appellees arrived on 

the scene but were directed to stay away from the house. Russ 

gave the deputies the keys to her house so that they could enter 

and arrest GT Russ III. Chief Deputy Sheriff Ed McMahon, who 

was second in command at the time (now Sheriff of New Hanover 

County), came to the house and spoke with GT Russ III over the 

telephone. GT Russ III informed McMahon that he had returned to 

North Carolina to be with his father during surgery to be 

performed on November 10, 2008. McMahon verified this with the 

Plaintiffs-Appellees and other family members, who also informed 

him that Sellars was not in North Carolina at the time. After 

speaking with GT Russ III and Plaintiffs-Appellees, McMahon 

agreed to allow GT Russ III to turn himself in following his 

father’s surgery. The deputies left the scene and Russ, Gause, 

and GT Russ III went to GT Russ Jr.’s bedside at the hospital.

GT Russ III did not turn himself in on November 10, 2008. 

On that day, GT Russ Jr.’s condition worsened and on November 

11, 2008, he died. Deputy Gonzalez arrived at Russ’s house on 

November 11, 2008, seeking to serve the warrant on GT Russ III. 

During his visit, Russ notified the deputy that her husband had 
8

died and asked the deputy to notify Chief Deputy McMahon of that 

fact. On Wednesday, November 12, or Thursday, November 13, 

2008, Russ and GT Russ III spoke with McMahon. During those 

conversations both notified him that GT Russ Jr. had died and 

that the family was busy making funeral arrangements for GT Russ 

Jr., who was to be buried with military honors. McMahon agreed 

to allow GT Russ III to turn himself in after his father’s 

funeral. McMahon recounted his conversation with Russ where he 

admits agreeing to have GT Russ III turn himself in after the 

funeral:

Q: Do you remember saying, “Okay, that is fine”? What 

did you say in response to that?

A: I am sure I said, “Okay.”

Consistent with that discussion, no efforts were made by the 

sheriff’s office to serve the warrant or to contact GT Russ III 

about the warrant. Further, sheriff’s deputies were

specifically instructed not to go back to the house.

However, on November 13, 2008, McMahon and other senior law 

enforcement officers in the sheriff’s office, worried that GT 

Russ III would not turn himself in, decided that their best 

chance to serve the arrest warrant would be to do so after the 

funeral service, which they were confident GT Russ III would 

attend. McMahon, after speaking with Causey, authorized the 

arrest of GT Russ III at some point after the funeral, to be 
9

carried out as discretely and quickly as possible, but left the 

details of the arrest plan to Price. Price created the Incident 

Action Plan that details the arrest plan. Deputies Brown and 

Jordan were to wear plain clothes as they approached GT Russ III 

and arrest him in the parking lot of Andrews Valley Mortuary 

immediately following his father’s funeral service. Price 

relayed this plan to McMahon.

The funeral of GT Russ Jr. was set for November 15, 2008, 

and it was intended to be a private ceremony. PlaintiffsAppellees and GT Russ III went to the mortuary early in the 

morning together to ensure everything was being set up 

appropriately for the service. GT Russ III drove his truck to 

the funeral service at Andrews Valley Mortuary. The service 

began at 1:00 or 2:00 p.m. with family members and friends 

paying their respects to GT Russ Jr. and the Russ family.

Prior to the funeral service, Brown and Jordan, who were 

wearing civilian suits and ties, drove to an adjacent animal 

hospital to observe the funeral home and then parked their 

unmarked car in an empty parking space in the funeral home’s 

parking lot once all of the funeral attendees had gone inside. 

No one from the sheriff’s office had notified Andrews Valley

Mortuary that they would attempt to serve a warrant at the 

funeral service.
10

After the service concluded, Plaintiffs-Appellees exited 

the funeral home through the front entrance and went into the 

limousine. The parties differ as to exactly what happened after 

GT Russ III exited the funeral home at the conclusion of the 

service, although their versions of events do overlap. 

Accepting Plaintiffs-Appellees’ version as true where there are 

differences, the arrest occurred as follows: GT Russ III was 

the pallbearer for his father’s casket and the casket went out 

the side door of the mortuary where the hearse was parked under 

the carport. Ronald Simmons was also a pallbearer on the left 

side with GT Russ III and John Hoy from Andrews Valley Mortuary

was assisting the pallbearers in the transportation of the 

casket. As GT Russ III was putting his father’s casket into the 

hearse, two gentlemen in suits and ties approached. Price had 

given permission for Deputies Brown and Jordan to approach the 

funeral at this time. Ronald Simmons was an arm’s length away 

from GT Russ III and initially thought that the men were friends 

or family that had attended the funeral.

Brown then violently grabbed GT Russ III and threw him up 

against the hearse. Deputy Brown never identified himself as 

law enforcement nor did he inform GT Russ III that he was under 

arrest. GT Russ III broke loose from Brown, not knowing who he 

was, and Hoy and Simmons thought they were criminals attacking 

GT Russ III.
11

As Plaintiffs-Appellees were seated in the limo they heard 

a loud noise from GT Russ III being thrown against the hearse

and a lot of screaming. They went over to the commotion 

surrounding the hearse. During the scuffle with GT Russ III, 

Brown’s back-up firearm had become dislodged and had fallen to 

the pavement. In an attempt to control the crowd, defendant 

Jordan drew his Taser, which to Plaintiffs-Appellees appeared to 

be a firearm. Neither defendant Jordan nor defendant Brown had 

identified themselves at this point. When asked by Russ and 

Gause who they were and what they were doing, the deputies 

refused to identify themselves and threatened to shoot 

bystanders. Plaintiffs-Appellees contend that during this time 

the deputies were waving their Tasers wildly at the attendees 

and pointing them at Plaintiffs-Appellees faces as they stood a 

few feet away. Brown then employed his Taser against GT Russ 

III in order to subdue him. Plaintiffs-Appellees allege that 

during all this time neither Brown nor Jordan identified 

themselves and that they and others at the funeral feared for 

their lives.

At some point during the arrest of GT Russ III, Brown and 

Jordan radioed for assistance. Price and another deputy, who 

had been maintaining positions around the funeral home to 

prevent escape, responded and arrived at the scene at about the 

time GT Russ III was placed in handcuffs. After seeing GT Russ 
12

III handcuffed, attendees understood that these individuals were 

law enforcement officers. The attendees wanted answers from 

Price as to why this happened, to which he responded that he 

would take everyone to jail if they did not calm down. It is 

further alleged that Price was rude during this discussion, 

further exacerbating the situation. Eventually, Brown and 

Jordan transported GT Russ III to New Hanover County Detention 

Center.

It took Andrews Valley Mortuary approximately thirty

minutes to restore order to the service and many people in 

attendance did not continue to the cemetery for the burial. The 

Plaintiffs-Appellees went to the cemetery in shock. The next 

day, or shortly thereafter, Russ and her family requested a 

meeting with McMahon where McMahon apologized and indicated that 

there was a miscommunication and that the arrest was supposed to 

have occurred after the burial. The law enforcement officers 

involved in the arrest were orally reprimanded by Sheriff 

Causey.

The events at the funeral were “the most horrible thing” 

Russ has ever gone through and neither she nor Gause have 

received closure for their husband and father’s death. 

Consistent with Plaintiffs-Appellees’ experience, funeral 

attendees were mortified and shocked by what happened.
13

B.

Brown, Jordan, and Price are public officers shielded from 

personal liability under North Carolina’s doctrine of public 

officer’s immunity unless it is alleged and proved that their 

actions, or lack thereof, were of a nature that pierces the 

cloak of this immunity.4 Accordingly, in order to sustain a 

personal or individual capacity suit against Brown, Jordan, and 

Price for the state law claims, Plaintiffs-Appellees “must 

initially make a prima facie showing that the defendantofficial’s tortuous conduct falls within one of the immunity 

exceptions.” Trantham v. Lane, 488 S.E.2d 625, 627 (N.C.App.

1997).

As a preliminary matter, defendants assert that PlaintiffsAppellees’ claims for negligent infliction of emotional distress 

and negligence are, by their very definition, claims for 

 

4 It is well established that federal courts, when 

interpreting North Carolina law, “must rule as the North 

Carolina courts would, treating decisions of the Supreme Court 

of North Carolina as binding . . . .” Iodice v. United States, 

289 F.3d 270, 275 (4th Cir. 2002). Consistent with this 

deference to state law, holdings by the North Carolina Court of 

Appeals on a point of North Carolina law are “not to be 

disregarded by a federal court unless it is convinced by other 

persuasive data that the highest court of the state would decide 

otherwise.” West v. Amer. Tel. & Tel. Co., 311 U.S. 223, 237 

(1940); see also Comm’r of Internal Revenue v. Bosch, 387 U.S. 

456, 465 (1967); Sanderson v. Rice, 777 F. 2d 902, 905 (4th Cir. 

1985), cert. den., 475 U.S. 1027 (1986).
14

negligence and because public officers may not be held 

personally liable for negligence, the officers are entitled to 

public officer’s immunity as to these claims.

In support of this proposition, defendants’ cite to this 

Court’s holding in Shaw v. Stroud that a “negligent infliction 

of emotional distress claim, by its very definition, necessarily 

alleges only negligence. Therefore, [the defendant state 

trooper] [wa]s absolutely immune [individually] from any 

negligent infliction of emotional distress claim under North 

Carolina law.” Shaw v. Stroud, 13 F.3d 791, 803 (4th Cir. 1994)

(rejecting plaintiff’s claim that gross negligence is sufficient 

to pierce public official immunity). In Shaw, however, the 

plaintiff was arguing that gross negligence was sufficient to 

pierce an officer’s immunity. There were no allegations of 

malicious or corrupt actions or actions beyond the scope of the 

officer’s duties, exceptions to public officer’s immunity that 

this Court in Shaw explicitly acknowledged. Id. (“While 

intentional, malicious, or corrupt actions may pierce an 

officer’s immunity, the North Carolina Supreme Court has never 

allowed a showing of gross negligence to suffice to pierce an

officer’s immunity . . . .”). Further, the North Carolina Court 

of Appeals has explicitly held that negligence actions can be 

maintained if, in addition to the elements of a negligence 

claim, plaintiffs allege and prove that the officer’s actions 
15

were corrupt or malicious or beyond the scope of the officer’s 

duties:

While we recognize that generally, claims of 

negligence can not be maintained against public 

officials in their individual capacity, these actions 

may be maintained, if plaintiffs bring forth evidence 

sufficient to ‘pierce the cloak of official immunity.’

Prior v. Pruett, 550 S.E.2d 166, 171 (N.C.App. 2001) (emphasis 

added); see also, Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C. 

App. 2000) (quoting Slade v. Vernon, 429 S.E.2d 744, 747 (N.C. 

App. 1993)) (“Under the public officers’ immunity doctrine, ‘a 

public official is [generally] immune from personal liability 

for mere negligence in the performance of his duties, but he is 

not shielded from liability if his alleged actions were corrupt 

or malicious or if he acted outside and beyond the scope of his 

duties’.”). It is not the elements of the claim that determine 

whether a public official is entitled to public officer’s 

immunity. Rather, it is whether the facts alleged are 

sufficient to pierce the cloak of immunity, so as to strip the 

official of that immunity and allow plaintiffs to sue the 

official “as if the suit had been brought against ‘any private 

individual.’” Id.

Under North Carolina law, it is clearly established that 

“where a defendant performs discretionary acts as part of his or 

her official or governmental duties, to sustain a suit for 

personal or individual liability, a plaintiff must allege and 
16

prove that the defendant’s acts were malicious or corrupt.” 

Schlossberg v. Goins, 540 S.E.2d 49 (N.C.App. 2000) (citing 

Wilkins v. Burton, 16 S.E.2d 406, 407 (N.C. 1941)). Here, it is 

undisputed that Brown, Jordan, and Price were on duty during the 

afternoon of November 15. “Moreover the decisions made by [the 

officers] in attempting to restrain and arrest [an individual] 

were discretionary decisions made during the course of 

performing their official duties as public officers.” 

Schlossberg, 540 S.E.2d at 540. Because the deputies were 

engaged in discretionary acts as part of their official duties

and Plaintiffs-Appellees do not allege that the deputies’ 

actions were corrupt, the only relevant question for purposes of 

the public officer’s immunity analysis is whether PlaintiffsAppellees have put forth sufficient evidence of malice to 

survive summary judgment.

The district court found that the plaintiffs “put forward 

sufficient evidence of extreme and outrageous conduct and 

reckless indifference” to support a showing of malice and 

overcome the defense of public officer’s immunity. It is 

presumed that a public official in the performance of his 

official duties “acts fairly, impartially, and in good faith and 

in the exercise of sound judgment or discretion, for the purpose 

of promoting the public good and protecting the public 

interest.” Greene v. Town of Valdese, 291 S.E.2d 630, 632 (N.C. 
17

1982) (citations omitted). “Thus, to overcome the presumption 

of good faith in favor of a public official, the burden is on 

the plaintiff to offer a sufficient forecast of evidence to 

establish . . . the public officials’ actions were malicious. 

. . .” Crocker v. Griffin, No. COA09-1000, 2010 WL 1961258 at 

*6 (N.C.App. May 18, 2010).

Acts of malice are one exception to the doctrine of public 

officer’s immunity, a doctrine where “public officials cannot be 

held individually liable for damages caused by mere negligence 

in the performance of their governmental or discretionary 

duties.” Meyer v. Walls, 489 S.E.2d 880, 889 (N.C. 1997). “A 

defendant acts with malice when [] he wantonly does that which a 

man of reasonable intelligence would know to be contrary to his 

duty and [] which he intends to be prejudicial or injurious to 

another.” In re Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984). 

The Supreme Court of North Carolina explained that “[a]n act is 

wanton when it is done of wicked purpose, or when done 

needlessly, manifesting a reckless indifference to the rights of 

others.” Id. at 890-91 (quoting Givens v. Sellers, 159 S.E.2d 

530, 535 (N.C. 1968)). When the definition of “wanton” is 

grafted into the definition of “malice,” Grad establishes a 

three pronged framework providing that malice, for the purposes 

of piercing the cloak of public officer’s immunity, may be 

demonstrated by conduct: (1) “when done needlessly, manifesting 
18

a reckless indifference to the rights of others,” 321 S.E.2d at 

890-91; (2) “which a [person] of reasonable intelligence would 

know to be contrary to [their] duty,” id. at 90 and (3) “which 

[is] intend[ed] to be prejudicial or injurious to another.” Id.

Regarding the first prong, we agree with the district court 

that Plaintiffs-Appellees put forth sufficient evidence that the 

officers needlessly engaged in conduct, manifesting a reckless 

indifference to the rights of others. Our conclusion is based 

on the Plaintiffs-Appellees’ evidence of the following conduct 

of Brown, Jordan, and Price: Brown and Jordan grabbed GT Russ 

III during his father’s funeral while GT Russ III was putting 

the casket into the hearse; the deputies failed to identify 

themselves as police officers; Jordan threatened to use his 

Taser on elderly and particularly emotional bystanders attending 

the funeral; Price planned the arrest and threatened to arrest 

other funeral attendees who sought explanation; and the officers 

and their supervisors were brutish and bullying toward grieving 

family and friends.

Further, Plaintiffs-Appellees have presented evidence 

sufficient to show that the actions of Brown, Jordan, and Price 

were actions an officer “of reasonable intelligence would know 

to be contrary to his duty.” Grad, 321 S.E.2d at 890. Brown 

and Jordan passed a Basic Law Enforcement Training (“BLET”) 

course and exam, which provides the “minimum standards” for law 
19

enforcement officers in the state of North Carolina. The BLET 

course discussed the proper procedure for arresting individuals. 

The policies are listed as follows: “(1) Identify Self as an 

officer, (2) Inform suspect he or she is ‘under arrest’ and (3) 

State reason(s) for the arrest.” This evidence -- when viewed 

in the light most favorable to Plaintiffs-Appellees –- makes 

clear that defendants failed to follow even one of those basic 

rules of law enforcement before effectuating the arrest of GT 

Russ III. In addition, N.C. Gen. Stat § 15A-401(c) supports the 

BLET tenets for making an arrest:

(2) Upon making an arrest, a law-enforcement officer must:

a. Identify himself as a law-enforcement officer 

unless his identity is otherwise apparent

b. Inform the arrested person that he is under 

arrest, and

c. As promptly as is reasonable under the 

circumstances, inform the arrested person of 

the cause of the arrest, unless the cause 

appears to be evident.

N.C. Gen. Stat § 15A-401(c).

Contrary to the dissent’s assertion, the relevant “duty” of 

the officers —- rather than a duty to refrain from arresting Mr. 

Russ at the funeral home, post at 28 —- was the duty not to 

engage in extreme and outrageous conduct intended to cause, and 

in fact causing, severe emotional distress to PlaintiffsAppellees. In this regard, and thus in respect of the second 

prong of malice, it is relevant that the officers’ alleged 
20

conduct occurred during a funeral. The Supreme Court of North 

Carolina has long recognized that a funeral is a solemn event 

that creates certain rights in mourners and requires that 

special care be taken by third parties. Floyd v. Atl. Coast 

Line Ry. Co., 83 S.E. 12, 12-13 (N.C. 1914) (“There is a duty 

imposed by the universal feelings of mankind to be discharged by 

someone toward the dead, a duty, and we may also say a right, to 

protect from violation, and a duty on the part of others to 

abstain from violation.”); cf. Parker v. Quinn-McGowen Co., 138 

S.E.2d 214 (N.C. 1964) (noting that next of kin has a quasiproperty right in a deceased body for its burial and there 

arises out of that right an emotional interest which should be 

protected and which others have a duty not to injure 

intentionally or negligently); Lamm v. Shingleton, 55 S.E.2d 

810, 813 (N.C. 1949) (“The tenderest feelings of the human heart 

center around the remains of the dead.”).

Other states, and other courts, have similarly recognized 

the rights and protections afforded by law to funerals and 

burials. See, e.g., Holland v. Metalious, 198 A.2d 654, 656 

(N.H. 1964) (“The right to ‘decent’ burial is one which has long 

been recognized at common law, and in which the public as well 

as the individual has an interest”); King v. Elrod, 268 S.W.2d 

103, 105 (Tenn. 1953) (“[T]he right to decent burial is well 

guarded by the law, and relatives of a deceased are entitled to 
21

insist upon legal protection for any disturbance or violation of 

this right.” (citation omitted)); Koerber v. Patek, 102 N.W. 40, 

43 (Wis. 1905) (“We can imagine no clearer or dearer right in 

the gamut of civil liberty and security than to bury our dead in 

peace and unobstructed. . . . [N]one where the law need less 

hesitate to impose upon a willful violator responsibility for 

the uttermost consequences of his act.”); cf. Snyder v. Phelps

__ U.S. __, __, 131 S.Ct. 1207, 1227-1228 (2011) (Alito, J., 

dissenting) (explaining that “the emotional well-being of 

bereaved relatives is particularly vulnerable” at funerals 

because intrusions “may permanently stain their memories of the 

final moments before a loved one is laid to rest,” and, as a 

result, “funerals are unique events at which special protection 

against emotional assaults is in order”); Nat’l Archives & 

Records Admin. v. Favish, 541 U.S. 157, 167-70 (2004) (noting 

that “[b]urial rites or their counterparts have been respected 

in almost all civilizations from time immemorial,” and further 

noting that funerals “are a sign of the respect a society shows 

for the deceased and for the surviving family members”).5

 

5 Indeed, a number of states have gone so far as to create a 

special category within the common law tort of negligent 

infliction of emotional distress for interference with proper 

burials. See Restatement (Third) Torts § 46 (Tentative Draft 

No. 5 2007).
22

As to the third prong of malice under Grad, PlaintiffsAppellees must produce at least some evidence that the 

defendants “intend[ed] to be prejudicial or injurious to 

another.” Kaasa, 321 S.E.2d at 890; see Hawkins v. State of 

North Carolina, 453 S.E.2d 233, 242 (N.C.App. 1995). North 

Carolina courts have found summary judgment inappropriate where 

there is a genuine issue of fact as to an officer’s state of 

mind when engaging in allegedly tortious conduct.6 See, e.g.,

Showalter v. N.C. Dept. of Crime Control & Public Safety, 643 

S.E.2d 649 (N.C.App. 2007) (finding summary judgment 

inappropriate on public officer’s immunity where trooper stated 

he did not act maliciously but where trooper’s actions in macing 

plaintiff and dragging him from car during traffic stop created 

a genuine issue of fact as to whether actions were done with 

malice); Thompson v. Town of Dallas, 543 S.E.2d 901, 905 

 

6 Although allegations of “reckless indifference” in the 

complaint may be insufficient to survive a motion to dismiss, 

see, e.g., Jones v. Kearns, 462 S.E.2d 245, 248 (N.C. App. 

1995), evidence of conduct manifesting a reckless indifference 

to the rights of others may in some cases be “substantial 

evidence” from which a jury may properly infer specific intent 

to injure. See, e.g., State v. Barlowe, 337 N.C. 371, 379, 446 

S.E.2d 352, 357 (1994) (“Intent must normally be proved by 

circumstantial evidence, and an intent to kill may be inferred 

from the nature of the assault, the manner in which it was made, 

the conduct of the parties, and other relevant circumstances.” 

(quotation marks and alterations omitted)).
23

(N.C.App. 2001) (finding that genuine issue of material fact as 

to whether officer acted with malice in arresting motorist 

precluded summary judgment on punitive damages claim).

Arguably, the very act of selecting the moment a grieving 

son places his father’s casket into a hearse to execute his

arrest in front of his family and innocent third party attendees

demonstrates an intent to injure him, his family, and anyone 

else at the funeral grieving the decedent’s death. This is 

especially true where, as here, there were numerous 

opportunities to serve the warrant elsewhere, the sheriff’s 

office had previously promised not to take any action until 

after the funeral, and the officers did not believe there was 

any threat necessitating an immediate arrest. As PlaintiffsAppellees allege, the conduct of Brown, Jordan, and Price is 

sufficient to create a genuine issue of fact material to the 

issue of public officer’s immunity, particularly as to the 

officers’ intent in creating and executing the arrest plan.

II.

For the reasons given above, we affirm the district court’s 

denial of summary judgment.

AFFIRMED
24

KING, Circuit Judge, dissenting:

With the utmost respect for my distinguished colleagues in 

the majority, I dissent from their decision to permit the 

plaintiffs to attempt to hold the arresting deputies and their 

immediate supervisor individually liable at trial for the 

botched arrest at the funeral home. No reasonable jury could 

conclude from the record on summary judgment that these 

defendants acted with the requisite malice such that their 

entitlement to the immunity routinely afforded public officials 

under North Carolina law ought to be abrogated. Perhaps more 

importantly, and no matter the deputies’ subjective intentions 

toward GT Russ III (“Mr. Russ”) in taking him into custody, 

there is simply no evidentiary basis to deduce that they meant 

any harm whatsoever to the plaintiffs.

The majority’s analysis correctly focuses on the question 

of malice; there is no legitimate allegation that, in arresting 

Mr. Russ, the deputies were corruptly influenced or undertook an 

act outside their job description. See Grad v. Kaasa, 321 

S.E.2d 888, 890 (N.C. 1984) (“As long as a public officer 

lawfully exercises the judgment and discretion with which he is 

invested by virtue of his office, keeps within the scope of his 

official authority, and acts without malice or corruption, he is 

protected from liability.”). There is likewise no indication 

that, in performing their jobs, the deputies lacked probable 
25

cause to arrest Mr. Russ or that they were without legal 

entitlement to park at the funeral home and traverse its 

grounds.

The execution of the arrest warrant was indisputably 

tactless and clumsy. In denying the deputies summary judgment 

on the individual-capacity claims, the district court went 

farther, observing that the plaintiffs “put forward sufficient 

evidence of extreme and outrageous conduct and reckless 

indifference.” Russ v. Causey, 732 F. Supp. 2d 589, 613 

(E.D.N.C. 2010). Even if one concurs in the court’s 

characterization, the difficulty with its ruling is that neither 

“extreme and outrageous conduct” nor “reckless indifference” 

equates to malice under North Carolina law.

“Extreme and outrageous conduct” is an element of a claim 

for intentional infliction of emotional distress, but the term 

merely describes the necessary predicate act. See Johnson v. 

Antioch United Holy Church, Inc., 714 S.E.2d 806, 811 (N.C. Ct. 

App. 2011) (reciting essential elements of claim as “(1) extreme 

and outrageous conduct by the defendant (2) which is intended to 

and does in fact cause (3) severe emotional distress” (citation 

and internal quotation marks omitted)). The conduct alone is 

not actionable unless accompanied by a particular mental state, 

i.e., the intent to inflict a cognizable psychic injury upon the 

plaintiff, with the result that such injury consequently occurs.
26

“Reckless indifference,” on the other hand, does describe a 

mental state — one that is potentially actionable in many 

contexts — but one that falls short of the rigorous threshold 

for malice. Indeed, the North Carolina courts have squarely 

held that “[a] plaintiff may not satisfy this burden [of showing 

malice or corruption] through allegations of mere reckless 

indifference.” Schlossberg v. Goins, 540 S.E.2d 49, 56 (N.C. 

Ct. App. 2000). A public official “acts with malice when he 

wantonly does that which a man of reasonable intelligence would 

know to be contrary to his duty and which he intends to be 

prejudicial or injurious to another.” Grad, 321 S.E.2d at 890 

(citation omitted). A “wanton” act is one “done of wicked 

purpose, or when done needlessly, manifesting a reckless 

indifference to the rights of others.” Id. at 891 (citation 

omitted).

A considered reconciliation of the above excerpts from Grad

reveals that a wanton act, even one tending less toward wicked 

and more toward needless (from which a general state of reckless 

indifference might be inferred), is, standing alone, 

insufficient to establish malice. Such an act must also be 

objectively contrary to the officer’s duty and target a specific 
27

person for detriment.1 Thus, although the deputies may have 

callously and boorishly invaded the solemnity of the funeral 

proceedings, it does not follow that their zeal translated into 

malice. It is also not determinative that the deputies may have 

contravened the prescribed arrest procedure by neglecting to 

identify themselves prior to engaging Mr. Russ. The majority 

elevates this technical breach to the violation of a statutory 

duty, see ante at 17-18, but even assuming the correctness of 

the majority’s position, it was a violation without meaning in 

this case.

The fracas did not occur because the deputies failed to 

identify themselves; it occurred because Mr. Russ, without 

cause, vigorously resisted arrest. The record conclusively 

establishes that Mr. Russ is, without question, a scofflaw who, 

 

1 The majority errs in overemphasizing the initial component 

of the Grad framework, making the unjustified logical leap that 

“[w]hen the definition of ‘wanton’ is grafted into the 

definition of ‘malice,’” ante at 16, the incorporation within 

wantonness of an inchoate aura of reckless indifference is 

determinative of malice if a police officer is found to have 

breached any duty (not necessarily one related to the alleged 

injury) and intends to harm or injure any person (not 

necessarily the plaintiff). See id. at 17-22. The majority’s 

approach, in effect, squarely contravenes the admonition in 

Schlossberg that the conduct of police officers in the field be 

evaluated under the rigorous causal and targeting requirements 

accompanying the malice standard, and not under the more 

amorphous, less accommodating reckless indifference standard.
28

over the years, has made a habit of evading capture.2 In this 

particular instance, Mr. Russ was well aware that the Sheriff’s 

Office possessed a warrant for his arrest. Five days before the 

funeral, Mr. Russ barricaded himself inside his parent’s house 

to keep from being arrested, and, two days after that, broke a 

promise to turn himself in. There can be no credible contention 

that Mr. Russ did not understand perfectly well who was 

accosting him at the funeral home, notwithstanding that he may 

not have been personally acquainted with the arresting deputies. 

See N.C. Gen. Stat. § 15A-401(c)(2) (disposing of identification 

requirement if arresting officer’s “identity is otherwise 

apparent”).3 Furthermore, under the circumstances present here, 

 

2 For example, Deputy Mario Gonzalez filed an uncontested 

declaration that “Mr. Russ . . . was known within the New 

Hanover County Sheriff’s Office to be an elusive individual who 

could be very difficult to locate and apprehend . . . . On 

repeated occasions, he had promised me over the telephone that 

he would turn himself in, but he invariably failed to do so.” 

J.A. 70 (citations herein to “J.A. ___” refer to the contents of 

the Joint Appendix filed by the parties to this appeal).

3 The plaintiffs’ own witness, Ronald Simmons, submitted an 

affidavit that Mr. Russ, prior to being subdued, acknowledged 

that the men engaging him were police officers by stating that 

“I had permission to turn myself in.” J.A. 833. That the 

bystanders were momentarily at sea concerning the deputies’ 

identity is immaterial, as it was solely Mr. Russ who was 

responsible for escalating the encounter. Mr. Simmons’s 

particular expression of bewilderment: “I thought what was 

going on was some kind of [M]afioso type hit,” id., does not 

(Continued)
29

whatever duty the deputies might have short-circuited by virtue 

of their subterfuge was countermanded by their overriding duty 

to take Mr. Russ into custody before he could leave the 

jurisdiction. See State v. Harvey, 187 S.E.2d 706, 712 (N.C. 

1972) (“When a warrant . . . is placed in the hands of an 

officer for execution, it is his duty to carry out its demands 

without delay, and he incurs no liability for its proper 

execution, however disastrous may be the effect on the person 

against whom it is issued.”). That duty the deputies fulfilled, 

albeit inelegantly.4

 

exactly inspire confidence in the plaintiffs’ contention that 

Mr. Russ lacked culpability for the incident.

4 Though the majority plainly hangs its hat on the alleged 

violation of the deputies’ duty to identify themselves, it 

conflates that supposed misstep with several other actions it 

considers “brutish and bullying” or otherwise objectionable, 

ante at 17, to declare that the officers were bound to observe a 

considerably broader “duty not to engage in extreme and 

outrageous conduct.” Id. at 18. Such a general mandate might 

constitute useful public policy in the realm of everyday tort 

law. It is of limited utility, however, to guide the actions of 

police officers, who routinely fulfill their duties by lawfully 

engaging in conduct that would be considered extreme if done by 

an ordinary citizen. Tellingly, none of the cases cited by the 

majority as establishing a special legal status for funerals and 

burials, see ante at 19-20, remotely involved police conduct, 

and none have discussed the need for balancing society’s 

interest in the solemnity of death rituals with the 

countervailing interest in the effective execution of criminal 

justice.
30

Perhaps more importantly for the purposes of our analysis, 

any injury or prejudice that the deputies may have intended by 

virtue of their actions was directed solely at Mr. Russ. There 

is no indication in the record of any animosity or ill-will 

between the deputies and the plaintiffs. See J.A. 379, 596 

(documenting plaintiffs’ deposition admissions that defendants 

bore them no personal animus). To the contrary, all indications 

are that the Sheriff’s Office extended the plaintiffs every 

consideration and courtesy throughout the days leading up to the 

incident and beyond. See id. at 76 (memorializing Deputy 

Gonzalez’s condolences to Peggy Russ on her husband’s death and 

forgoing confrontation concerning her son’s whereabouts); id. at 

145 (setting forth Chief Deputy McMahon’s accession to Peggy 

Russ’s pleas to stay away from residence during mourning 

period); id. at 369 (acknowledging McMahon’s apology to 

plaintiffs).

The majority pays little heed to the targeting requirement, 

suggesting that the deputies’ timing of Mr. Russ’s arrest 

arguably “demonstrates an intent to injure him, his family, and 

anyone else at the funeral grieving the decedent’s death.” Ante

at 22. The majority’s supposition finds no support in North 

Carolina law, and it in fact appears to be an attempt to engraft 

the negligence concept of foreseeability (which usually 

circumscribes the contours of duty and damages) onto a very 
31

different type of claim, the successful prosecution of which has 

heretofore required a specific malevolent or uncaring intent on

the part of the defendant.5 This unwarranted expansion of the 

universe of potential plaintiffs is also in contravention of the 

state’s statutory scheme regarding the award of punitive damages 

in cases where the defendant has acted maliciously. See N.C. 

Gen. Stat. § 1D-15(a)(2). In such instances, the plaintiff must 

prove malice “toward the claimant that activated or incited the 

defendant to perform the act or undertake the conduct that 

resulted in harm to the claimant.” Id. § 1D-5(5) (emphasis 

 

5 The majority cites Prior v. Pruett, 550 S.E.2d 166 (N.C. 

Ct. App. 2001), for the uncontroversial proposition, echoed in 

Schlossberg, that “generally, claims of negligence can not be 

maintained against public officials in their individual 

capacity, [but] these actions may be maintained if plaintiffs 

bring forth evidence sufficient to pierce the cloak of official 

immunity.” Id. at 171 (citation and internal quotation marks 

omitted). It was probably no accident that the court in Prior

distinguished between “claims of negligence” and “these 

actions.” An action arises out of a specific occurrence or set 

of circumstances that, under the applicable law, may engender 

myriad claims supporting the imposition of liability. When it 

is demonstrated that a defendant public official has acted 

culpably enough to pierce the cloak of immunity, the plaintiff 

no longer has a claim for ordinary negligence; instead, the 

claim is for an intentional tort (assault and battery in 

Schlossberg, and here, infliction of emotional distress) or some 

functional equivalent. Indeed, the denial of summary judgment 

to the police defendants in Prior was based on the court’s 

determination that genuine issues of material fact remained with 

respect to the officers’ allegedly wanton conduct and gross

negligence. See id. at 171-72, 174.
32

added). Here, the record is clear that, when the commotion 

began, the plaintiffs were in a limousine waiting for the 

procession to the gravesite to commence. That they had to exit 

their vehicle and walk around the building to see what was 

happening belies the conclusion that the deputies intended them 

any harm at all.

I would hold that the district court erred in withholding 

public officials immunity from the arresting deputies and their 

supervisor, and I would reverse the denial of summary judgment 

on that basis. I would remand with instructions to grant 

summary judgment to all defendants as to the entirety of the 

plaintiffs’ action, including the negligence claims, concluding 

that as distasteful as the entire episode undoubtedly was, the 

defendants owed no cognizable legal duty to the plaintiffs to 

refrain from arresting Mr. Russ at the funeral home. Because my 

good friends in the majority disagree and will allow this matter 

to proceed to trial, I respectfully dissent.