PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1700

GEORGE WINGATE,

Plaintiff - Appellant,

v.

SCOTT FULFORD; DIMAS PINZON,

Defendants - Appellees,

and

S. A. FULFORD,

Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:18-cv-00937-AJT-IDD)

Argued: December 8, 2020 Decided: February 4, 2021

Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed in part, reversed in part, vacated in part, and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer and Judge Richardson joined. Judge Richardson wrote a concurring opinion.

ARGUED: Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees. ON BRIEF: Bernadette E. Valdellon, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellant. Michael D. Arena, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellees.

2 GREGORY, Chief Judge:

George Wingate III was driving down Jefferson Davis highway around 2 a.m. one

morning when his check engine light came on. Mr. Wingate pulled his car over near a

streetlight to look under the hood. A Stafford County deputy patrolling the area, Deputy

Scott Fulford, saw Mr. Wingate’s vehicle. Suspecting the car was disabled, Deputy Fulford

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

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 (“the Officers”) on each of Mr. Wingate’s

claims. On appeal, we affirm in part, reverse in part, and remand for a trial on damages.

I.

The parties do not dispute the material facts of this case.

In the early morning hours of April 25, 2017, Mr. Wingate was driving southbound

on Jefferson Davis Highway in Stafford County, Virginia. At some point between 1 and 2

a.m., Wingate’s check-engine light came on. He pulled his car off to the side of the road and

parked it in front of the CarStar car dealership, under an illuminated streetlight. Mr. Wingate

left his lights on, popped the hood, and began to investigate. As a former mechanic, he

believed that he might be able to resolve the problem. Mr. Wingate circled around to the

3 trunk of his car where he pulled out a bag of tools. He placed the bag on the front passenger

seat, then began to look under the hood. Finding nothing, Mr. Wingate reentered his car

and tried to diagnose the issue using an automotive code reader that connected to his phone

via Bluetooth. The reader later indicated that one of his engine’s cylinders was misfiring.

Around this time, Deputy Fulford was driving northbound on the highway. The

deputy saw Mr. Wingate’s vehicle off to the side of the road. Deputy Fulford was

concerned that the car was “disabled,” so he turned around, pulled behind Mr. Wingate,

and began to get out of the car. Upon seeing the patrol vehicle, Mr. Wingate got out of his

car and walked over to greet the officer. Deputy Fulford asked Mr. Wingate what was

going on and where he was going. Mr. Wingate explained that he was driving to his

girlfriend’s house in Stafford but had experienced some car trouble along the way.

Deputy Fulford then requested Wingate’s identification. After Mr. Wingate asked

why he had to disclose his identity, Deputy Wingate activated his mic and requested

backup. The two men then engaged in the following exchange:

Fulford: Well, in Stafford County — Wingate: Have I committed a crime? Fulford: — it’s required. Wingate: Have I committed a crime? Fulford: No. I didn’t say you did. Wingate: All right then. Fulford: You’re still required to — Wingate: Am I free to go? Fulford: — identify yourself. Wingate: Am I free to go? Fulford: Not right now, no. Wingate: Am I being detained?

4 Fulford: You’re not detained. Wingate: Am I free to go? Fulford: No. Wingate: Am I being detained? If I’m not being detained, then I’m free to go. Fulford: You’re not free to go until you identify yourself to me.

Dash Cam Video at 1:40:08–31.

Lt. Pinzon arrived at the scene shortly thereafter. Lt. Pinzon informed Mr. Wingate

that there had been “a lot of catalytic converter thefts in [the] area,” and noted, “It’s kind

of weird, it’s 2 o’clock in the morning, and you’re out here on the side of the road in the

same area where the businesses have all been hit.”

at 1:43:32–45. Mr. Wingate

responded, “Well, I haven’t committed any crimes.”

at 1:43:45–49. Undeterred, the

Officers again asked for Mr. Wingate’s

at 1:43:50–52, 1:44:11–13. Mr. Wingate

again asked why he needed to identify himself.

at 1:44:13–1:45:05. Eventually, the

Officers attempt to arrest him, citing Stafford County Ordinance § 17–7(c). Id. at 1:45:04–

1:47:20. Section 17–7(c) makes it a crime to refuse an officer’s request for identification

“if the surrounding circumstances are such as to indicate to a reasonable man that the public

safety requires such identification.” J.A. 322.

Mr. Wingate resisted the Officers’ attempts to place him in handcuffs. Eventually,

he broke free from the Officers’ hold and began to flee, running across the street and out

of the dash camera’s frame. Id. 1:47:18. Mr. Wingate stopped when Lt. Pinzon drew his

Taser and pointed it in his direction. Lt. Pinzon then grabbed Mr. Wingate by the shirt,

ordered him to the ground, and “threw him to the ground with one arm when [Mr. Wingate]

didn’t comply.” J.A. 291. After a brief struggle, Lt. Pinzon and Deputy Fulford put Mr.

Wingate in handcuffs and placed him in the back of the patrol car. The Officers searched

5 Mr. Wingate’s car incident to arrest. The search revealed a bag of tools, a pair of gloves,

and a title certificate. Mr. Wingate did not, however, have ramps or a Sawzall—tools

commonly used to steal catalytic converter belts. J.A. 114, 138.

Mr. Wingate was criminally charged for failing to identify himself; intentionally

preventing a law enforcement officer from lawfully arresting him; knowingly attempting

to intimidate or impede a law-enforcement official; and possessing an open certificate of

title. 1 But on the date set for trial, the prosecuting attorney assigned to the case dropped

all of the charges. The attorney informed Deputy Fulford that defense counsel “had

brought up some case law that made [§ 17–7(c)] appear possibly unconstitutional.” J.A.

62. Deputy Fulford’s understanding was that they dropped the charges because “they

didn’t want to risk losing [the ordinance].” J.A. 63.

Mr. Wingate filed this suit in July 2018, asserting claims against Deputy Fulford

under

and the Virginia common law. Mr. Wingate then amended his

complaint to join Lt. Pinzon as a defendant. Following discovery, the parties filed cross-

motions for summary judgment. The district court granted the Officers’ motion and denied

Mr. Wingate’s. Mr. Wingate timely appealed.

II.

We review a district court’s grant of summary judgment de novo, using the same

standard applied by the district court. Henry v. Purnell,

(4th Cir. 2011)

1 The open certificate of title was for a different car that Mr. Wingate had purchased two weeks before but not yet titled in his own name. J.A. 128. 6 (en banc). Summary judgment is only appropriate if “no material facts are disputed and

the moving party is entitled to judgment as a matter of law.”

(internal quotation marks

omitted). Ordinarily, when a district court’s grant of summary judgment disposes of cross-

motions for summary judgment, “we consider each motion separately on its own merits,”

resolving “all factual disputes and any competing, rational inferences in the light most

favorable to the party opposing that motion.”

Here, however, the parties do not present

competing versions of the facts but competing views of the law. Thus, we review the

propriety of the district court’s rulings on both motions in tandem.

A.

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons . . . against unreasonable searches and seizures.” U.S. CONST. amend. IV. These

protections extend to “brief investigatory stops . . . that fall short of traditional arrest.”

United States v. Arvizu,

(2002). For investigatory stops, “the balance

between the public interest and the individual’s right to personal security tilts in favor of a

standard less than probable cause.”

To that end, law enforcement need only reasonable,

articulable, and particularized suspicion that someone is engaged in criminal activity to

justify these brief interactions. United States v. Sprinkle,

(4th Cir. 1997).

That this standard requires less than probable cause does not render its burden

illusory. “[A]n officer who stops and detains a person for investigative questioning ‘must

be able to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.’”

(quoting Terry v.

Ohio,

(1968)). We have often emphasized that the Fourth Amendment

7 requires particularity—“a particularized and objective basis for suspecting the particular

person stopped of criminal activity.” See, e.g., United States v. Massenburg,

(4th Cir. 2011) (emphasis in original); see also United States v. Slocumb,

(4th Cir. 2015); United States v. Griffin,

(4th Cir. 2009).

Although the need for reasonable and particularized suspicion is “somewhat abstract,”

Arvizu,

, it unquestionably requires more than “an inchoate and

unparticularized suspicion or hunch.” Slocumb,

.

To be sure, Deputy Fulford did not trigger the Fourth Amendment’s protections by

merely driving up to Mr. Wingate to provide roadside assistance. Officers may approach

someone absent suspicion of criminal conduct and “generally ask questions of that

individual,” Florida v. Bostick,

(1991), request cooperation in a criminal

investigation, United States v. Weaver,

, 311–12 (4th Cir. 2002), or provide

assistance, United States v. Monsivais,

(5th Cir. 2017). And they

routinely do.

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. See

Santos v. Frederick Cnty Bd. of Com’rs,

(4th Cir. 2013) (voluntary

encounter became an investigatory stop when woman submitted to officer’s unambiguous

direction remain seated); Bostick,

(explaining that an encounter will

“trigger Fourth Amendment scrutiny” when “it loses its consensual nature”); see also Dash

Cam Video at 1:40:18–20.

8 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 court agreed, identifying six factors that, in its view, would give an

objectively reasonable officer constitutionally adequate suspicion: (1) Mr. Wingate’s vehicle

was parked with its hood up near the CarStar lot at roughly 1:39 a.m.; (2) the vehicle was

in the “dimly lit parking lot of a closed and empty business late at night . . . despite better

lit areas just down the road”; (3) the vehicle was near parked CarStar cars “during a period

of increased vehicular larcenies and in an area known for prevalent vehicular crimes”; (4)

Mr. Wingate exited his vehicle without prompting as Deputy Fulford exited his cruiser; (5)

Mr. Wingate was wearing all-black clothing “similar to the suspects identified and

apprehended during the recent increase in late-night vehicular larcenies”; and (6) Mr. Wingate

said he was having engine trouble even though the car appeared to be properly idling.

We evaluate these considerations both separately and in the aggregate, recognizing

that “factors ‘susceptible to innocent explanation’ individually may ‘suffice[] to form a

particularized and objective basis’ when taken together.” Slocumb,

(quoting Arvizu,

) (modification in original). Ultimately, we conclude that

the innocuous circumstances of this encounter fall short of indicating that criminal activity

was afoot.

First, Mr. Wingate’s vehicle was parked with its hood up near the CarStar lot at

roughly 1:39 a.m. Alone, this fact does little to suggest criminal activity. In fact—and as

Fulford initially reasoned—it indicates a very specific, non-criminal enterprise: attempting

to identify and remedy car problems.

9 Second, Mr. Wingate’s vehicle was in the “dimly lit parking lot of a closed and

empty business late at night . . . despite better lit areas just down the road.” 2 J.A. 45. We

have previously held that “there is nothing inherently suspicious about driving at night on

an interstate highway.” Williams, 808 F.3d at 248. The natural corollary of this proposition

should go without saying: there is nothing inherently suspicious about engaging in conduct

attendant to nighttime highway travel—for example, experiencing car troubles. Within

this context, the fact that Wingate parked his car at a closed business or in a “dimly lit area”

are mere proxies for the fact that it was, indeed, late at night.

Third, Mr. Wingate parked near CarStar cars “during a period of increased vehicular

larcenies and in an area known for prevalent vehicular crimes.” J.A. 45. This factor, too,

is insufficiently particular. Courts may consider whether a person is in a “high crime area,”

but simply being in an area where crime is prevalent is minimally probative in the

reasonable suspicion analysis. United States v. Curry,

, 331 (4th Cir. 2020)

(“A person’s presence in a high-crime area cannot alone create reasonable suspicion to

justify a Terry stop.”); Black, 707 F.3d at 542 (denouncing the suggestion that “mere

presence in a high crime area at night is sufficient justification for detention by law

enforcement”); Williams, 808 F.3d at 248 (affording “very little weight” to the fact that

individuals were driving down a highway known as “drug corridor”). This is all the more

true when the “high-crime area” identified comprises an entire county. See J.A. 79 (“The

2 Deputy Fulford’s suggestion that Mr. Wingate knew or should have known there was a better-lit area up the road is unsupported by the record. We do not expect prescience from officers when evaluating their conduct. Nor do we expect it from lay people with even less reason to be aware of their surroundings. 10 county had been getting hit pretty hard with vehicle larcenies throughout that month, and I

believe also in the previous month.”); J.A. 241 (“Deputy Fulford was aware that there had

been increased vehicle larcenies throughout Stafford County.”). CarStar itself had only

had 8 larcenies over the course of six years. J.A. 287. Within the larger grid—the 820-

foot area surrounding CarStar—there were 18 larcenies over the course of six years. Id.

Fourth, Mr. Wingate exited his vehicle without prompting as Fulford exited his

cruiser. At Fulford’s deposition, he testified that this was a “red flag” for him. J.A. 72.

From his experience, “when somebody exits their vehicle and begins to walk away from

their vehicle, it’s because they are [] trying to get the attention off of the vehicle if there’s

something in plain view that [an officer] might see.” J.A. 75. Deputy Fulford went on to

say, “[G]enerally if somebody’s broken down on the side of the road, they stay inside their

vehicle. And when they get out, a lot of times that causes alarm.” J.A. 78. To be sure, if

a person gets out of her vehicle without prompting following a for-cause traffic stop, there

may be cause for concern. But the notion that the driver of a broken-down vehicle creates

suspicion of criminal activity by approaching the officer trying to render him aid, put

candidly, defies reason. Although we generally defer to officers’ claimed training and

experience, we withhold that deference when failing to do so would erode necessary

safeguards against “arbitrary and boundless” police prejudgments. Black, 707 F.3d at 541.

That is the case here.

Fifth, Mr. Wingate was wearing all-black clothing “similar to the suspects identified

and apprehended during the recent increase in late-night vehicular larcenies.” Dark attire

might be necessary to successfully engage in larceny. But it is far from sufficient. Indeed,

11 wearing dark clothing is often as innocuous as following the latest fashion trends. This is

not to say that distinctive items of clothing may never substantially aid in the reasonable

suspicion analysis. But when a nondescript style of clothing is commonplace for both

criminal suspects and an immeasurable subset of the law-abiding population, it is of little

investigatory value.

Finally, Mr. Wingate said he was having engine trouble even though the car

appeared to be properly idling. As any seasoned driver knows, a vehicle that runs is not

always a vehicle that runs well. It is therefore unreasonable for an officer to assume deceit

from a person claiming car trouble simply because the vehicle appears functional at a

glance. The record indicates that the only reason that Deputy Fulford found the properly

idling car suspicious was because of his own mistaken prejudgment that it was “disabled.”

J.A. 80. Mr. Wingate never told Fulford that his car was disabled. J.A. 212. Lt. Pinzon

testified that, when he approached, “there was nothing obvious to say it was a disabled

vehicle.” J.A. 321(b). And neither Deputy Fulford nor Lt. Pinzon testified that, based on

their training and experience, people experiencing engine trouble do not pull off the road

unless their cars are completely disabled. Deputy Fulford’s assessment of Wingate’s

credibility was untethered to any objective criteria. It therefore had little value in

suggesting that criminal activity was afoot. Black, 707 F.3d at 540 (declining to give

weight to an officer’s “irrational” observation).

These factors do not fare better when viewed together. We need look no further

than Deputy Fulford’s own words to conclude that the first three factors—even when

viewed as a whole—indicated a car in distress, not criminal activity. In the dash cam video,

12 Deputy Fulford explained why he pulled over behind Mr. Wingate: “I drive by and I see

somebody with the hood up. So, guess what I’m going to do as a police officer? . . . I’m

going to pull over and I’m going to try to help that person.” Dash Cam Video at 1:42:41–

49. Then, again, during his deposition, Deputy Fulford explained, “For Mr. Wingate with

his hood up initially, like I said[,] when I pulled in I thought he was, you know, I thought

he was disabled.” J.A. 80. The question then becomes whether Deputy Fulford’s

remaining concerns—that Mr. Wingate exited his properly idling vehicle in all-black

clothing—can carry the weight that the district court afforded them. The answer? They

can’t.

The insufficiency of Deputy Fulford’s suspicion is apparent when we compare it to

the type of suspicion found adequate in other cases. C.f. Illinois v. Wardlow,

,

124–25 (2000) (officer had particularized suspicion of criminal activity when person in

area of heavy narcotics trafficking engaged in unprovoked flight upon seeing police);

United States v. Bumpers,

(4th Cir. 2013) (officers had reasonable and

particularized suspicion that someone was trespassing when seen loitering in a high-crime

area of a shopping center, without shopping bags, in front of a sign that said “no

trespassing”); United States v. Hernandez-Mendez,

, 209–10 (officer’s

surveillance, professional training, and extensive personal experience with a particular high

school’s gang activity created reasonable suspicion of criminal activity). One of the more

striking points of comparison is our decision in Perkins, where we held that an officer’s

stop was supported by reasonable suspicion when, before stopping a red car outside 2740

Knox Avenue, the officer knew:

13 (1) Knox Avenue was a high-crime, drug-ridden neighborhood in which children were commonly present; (2) he had taken part in four or five drug investigations on Knox Avenue; (3) the duplex at 2740 Knox Avenue was a known drug house under investigation by the police’s drug unit; (4) Officer Burdette had personally arrested the residents of one of the units in that duplex on several occasions; (5) an unnamed caller had reported observing two white males pointing rifles in various directions in the front yard of that duplex; (6) these men reportedly arrived in a red car with a silver or white stripe; (7) Mrs. Hayes, a resident who lived directly across the street from the duplex, normally reported this type of conduct to the police; (8) Mrs. Hayes had given reliable information about illegal activity in this area at least six to ten times before; (9) shortly after the phone call to the police, there were indeed two white males in a red car bearing a silver or white stripe, parked next to another car right outside the duplex at 2740 Knox Avenue; (10) the passenger in the car was Mark Freeman, a well-known drug purchaser who lived in the neighborhood; and (11) the red car pulled away when the officers arrived. United States v. Perkins,

(4th Cir. 2004).

Deputy Fulford, by contrast, first began to suspect criminal activity when a man that

he intended to help approached him in dark clothing. That is not enough. As Mr. Wingate

argues, the level of objective, reasonable, and particularized suspicion in this case is more

akin to that which we found lacking in cases like Slocumb, 804 F.3d at 682–84, Black, 707

F.3d at 531, 539–42, Williams, 808 F.3d at 247–53, and Massenburg, 654 F.3d at 489–91.

The district court therefore erred in finding Fulford’s stop was supported by reasonable and

particularized suspicion. 3

3 Mr. Wingate also argues that the unreasonable scope and duration of his detention made the seizure unconstitutional, even if it was justified at its inception. Because we hold that the encounter became unconstitutional as soon as Deputy Fulford told Mr. Wingate that he was not free to leave, we need not address Mr. Wingate’s alternative argument. 14 B.

Mr. Wingate’s arrest was likewise unlawful. “[E]very arrest, and every seizure

having the essential attributes of a formal arrest, is unreasonable unless it is supported by

probable cause.” Michigan v. Summers,

(1981). J.A. 322. Deputy Fulford

and Lt. Pinzon argue that they had probable cause to arrest Mr. Wingate after he failed to

identify himself. But, guided by Hiibel v. Sixth Judicial Dist. Court of Nev.,

,

187–88 (2004) and Brown v. Texas,

(1979), we hold that this ordinance is

unconstitutional when applied outside the context of a valid investigatory stop.

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.” J.A. 322.

The Supreme Court’s seminal cases on “stop and identify” statues such as § 17–7(c) are

Hiibel, 542 U.S. at 187–88 and Brown, 443 U.S. at 49–52. Brown involved a Texas law

that made it a criminal offense for someone to “intentionally refuse[] to report . . . his name

and residence address” to an officer “who ha[d] lawfully stopped him and requested the

information.” Id. at 49 n.1. Invoking this statute, the officers stopped Brown and asked

that he identify himself. Id. at 49–50. Although Brown was walking in a “high crime”

area and “looked suspicious,” the officers did not “suspect [him] of any specific

misconduct.” Id. at 50. Upon failing to identify himself, Brown was arrested, charged,

and ultimately convicted under the Texas statute—a conviction the Supreme Court

reversed. Id. at 49–50, 52–53. Brown recognized that the Texas statute was “designed to

15 advance a weighty social objective in large metropolitan centers: prevention of crime.”

Id. at 52. Still, it held that a worthy objective did not “negate Fourth Amendment

guarantees.” Id. (“[E]ven assuming that [crime prevention] is served to some degree by

stopping and demanding identification from an individual without any specific basis for

believing he is involved in criminal activity, the guarantees of the Fourth Amendment do

not allow it.”)

Hiibel then answered the question that Brown left open: whether a state may compel

someone to disclose her name during an otherwise valid Terry stop. 542 U.S. at 185–86;

see also Brown,

n.3. The Supreme Court upheld the use of stop and identify

statutes within this context “because it properly balance[d] the intrusion on the individual’s

interests with the promotion of legitimate government interests.”

at 186–88. Hiibel

also found that, in many respects, the individual and government interests implicated by

stop and identify statutes were coextensive with those implicated by Terry itself.

. On the government-interest side of the ledger, “[t]he request for identity has an

immediate relation to the purpose, rationale, and practical demands of a Terry stop” and

“[t]he threat of criminal sanction helps ensure that the request for identity does not become

a legal nullity.”

Moreover, the request rarely imposes additional burdens on

individuals’ interests in being free from government intrusion. An identity request

ordinarily “does not alter the nature of the stop itself: it does not change [the stop’s]

duration, [] or its location [].”

(citing United States v. Place,

(1983);

Dunaway v. New York,

(1979)).

16 Because identity requests implicate the same interests as Terry stops, they are also

subject to the same constitutional limits. When pressed on the risk of arbitrary policing,

Hiibel explained that the safeguards inherent in Terry likewise constrained an officer’s

authority to compel disclosure of someone’s identity.

at 189 (quoting Terry,

) (“Petitioner’s concerns are met by the requirement that a Terry stop must be justified

at its inception and ‘reasonably related in scope to the circumstances which justified the

initial stop.’”). For example, “an officer may not arrest a suspect for failure to identify

himself if the request for identification is not reasonably related to the circumstances

justifying the stop.”

Nor may the request impermissibly extend the stop, suggesting

“an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient

evidence.”

Read together, Brown and Hiibel illustrate that a valid investigatory stop, supported

by Terry-level suspicion, is a constitutional prerequisite to enforcing stop and identify

statutes. 4 Necessarily so. The prevailing seizure jurisprudence flows from the idea that,

short of an investigatory stop, a person is “free to disregard the police and go about his

business.” Cf. California v. Hodari D.,

(1991); Brendlin v. California,

, 254–55 (2007); I.N.S. v. Delgado,

, 216–17 (1984). To be sure,

officers may always request someone’s identification during a voluntary encounter.

Bostick, 501 U.S. at 434–35; Delgado, 466 U.S. at 216–17. But they may not compel it by

4 This holding establishes a constitutional floor for enforcing stop and identify statutes. Notably, an ordinance may impose additional statutory prerequisites to enforcement. Here, for example, § 17–7(c) also requires that a public safety interest justify the compelled disclosure of someone’s identity. 17 threat of criminal sanction. Allowing a county to criminalize a person’s silence outside the

confines of a valid seizure would press our conception of voluntary encounters beyond its

logical limits. We therefore decline to do so here.

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. 5 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.

C.

The question remains whether Deputy Fulford and Lt. Pinzon are entitled to

qualified immunity for their violations of Mr. Wingate’s Fourth Amendment rights.

Qualified immunity “balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson

v. Callahan,

(2009). The doctrine shields government officials from

5 The Officers do not argue that Mr. Wingate’s failure to disclose his identity, in itself, created reasonable suspicion of criminal activity sufficient to justify a stop. Properly so. Implied in our holding that stop and identify statutes are only constitutionally enforceable during a valid Terry stop is the assumption that the stop is predicated on suspicion of criminal activity distinct from a person’s failure to disclose her identity. See Hiibel, 542 U.S. at 188–89 (cautioning against using an identity request to create suspicion of criminal activity). In other words, an officer cannot initiate an investigatory stop based on suspicion that someone would refuse an identity request during a valid investigatory stop. 18 liability for civil damages, provided that their conduct does not violate clearly established

statutory or constitutional rights within the knowledge of a reasonable person. Harlow v.

Fitzgerald,

(1982). The burden of establishing a qualified immunity

defense rests on the official asserting the defense. Meyers v. Baltimore County,

(4th 2013). The officer must show either that she did not violate a constitutional

right or that the right was not clearly established at the time her conduct occurred.

Deputy Fulford is not entitled to qualified immunity for his unconstitutional

investigatory stop. As Mr. Wingate argues, the circumstances here are nearly

indistinguishable from those in Slocumb, 804 F.3d at 682–84—a case where we found

officers lacked the requisite suspicion to conduct an investigatory stop. The officers in

Slocumb saw a man, woman, and two infant children near two cars in a parking lot known

for illegal drug transactions.

at 679–80. The two adults were transferring a child’s car

seat from one car to another. Id. at 680. One of the officers approached the group and

“noticed that the man appeared to be hurrying the woman.” Id. When asked, the man told

the officer that his girlfriend’s car had broken down and that he had come to pick her up.

Id. During this seconds-long conversation, the officer concluded the man was “acting

evasively” because he “did not make eye contact and gave mumbled responses to officer’s

questions,” and conducted an investigatory stop. Id. We found the officer lacked

reasonable suspicion, explaining that the government failed to explain how Slocumb’s

innocent acts “were likely to be indicative of some more sinister activity,” id. at 684, and

cautioning the government that it “must do more than simply label a behavior as suspicious

to make it so.” Id. (internal quotation marks omitted). Slocumb put Deputy Fulford on

19 notice that the circumstances present here were too innocuous to give rise to reasonable

suspicion.

This conclusion is only bolstered by pre-Slocumb cases like Black and Massenburg.

In Black, 707 F.3d 541–42, we explained that a person’s presence “in a high crime area at

night” is of little investigatory value and warned officers against making “irrational

assumptions based on innocent facts.” Id. at 542. We also highlighted four of our previous

decisions, where “we admonished against the Government’s misuse of innocent facts as

indicia of suspicious activity.” Id. at 539 (quoting United States v. Powell,

(4th Cir. 2011); Massenburg,

; United States v. Digiovanni,

(4th Cir. 2011); and United States v. Foster,

(4th Cir. 2011)). One of those

cases was Massenburg. There, we held that an officer lacked reasonable suspicion to stop

and frisk an individual who (1) was found in the vicinity of several gunshots, (2) responded

nervously when approached by the police, and (3) was reluctant to consent to a pat down.

Massenburg,

. We said in no uncertain terms: “[The government] cannot

simply proffer whatever facts are present, no matter how innocent, as indicia of suspicious

activity.”

(internal quotation marks omitted).

Deputy Fulford’s suspicion of criminal activity in this case is on par with that which

we found insufficient in Slocumb, and pales in comparison to that which we found lacking

in Massenburg. Because these cases 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.

20 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. And although the proper reading of

Brown encompasses Stafford County’s ordinance, it was not “plainly incompetent” for the

Officers to believe that § 17–7(c) fell outside the decision’s reach. See Ashcroft v. al-Kidd,

, 743 (2011). The law at issue in Brown criminalized a person’s refusal to

identify himself to an “officer who ha[d] lawfully stopped him.” Brown,

n.1. Because the Texas provision only applied in the context of lawful investigatory stops,

the need to comply with Terry’s requirements was evident from the text of the statute.

Stafford County’s ordinance, on the other hand, does not predicate enforcement upon the

investigation of criminal activity. Rather, it criminalizes a person’s refusal to provide his

identity upon an officer’s request “if the surrounding circumstances are such as to indicate

to a reasonable man that the public safety requires such identification.” J.A. 322 (emphasis

added). A reasonable officer could infer—albeit incorrectly—that Terry’s requirements

did not apply to stop and identify statutes rooted in public safety rather than crime

prevention.

Deputy Fulford and Lt. Pinzon violated Mr. Wingate’s Fourth Amendment rights

by enforcing § 17–7(c) outside the context of a valid Terry stop. But because this right

was not clearly established at the time of the arrest, the Officers are entitled to qualified

immunity on this claim.

21 III.

Finally, we review the district court’s grant of summary judgment on Mr. Wingate’s

claims under the Virginia common law: false arrest and malicious prosecution. The district

court found that these claims were derivative of Wingate’s unlawful arrest claim—each

required a showing that the Officers lacked probable cause to arrest Mr. Wingate and charge

him with a crime. J.A. 48–49. Since the district court held Deputy Fulford and Lt. Pinzon’s

arrest was supported by probable cause, it granted the Officers summary judgment on the

pendant common law claims as well. Id. We affirm the district court’s grant of summary

judgment on these claims. But because the court’s ruling is rooted in an incorrect probable-

cause determination, we affirm on separate grounds.

Under Virginia law, false imprisonment is defined as “the restraint of one’s liberty

without any sufficient legal excuse.” Lewis v. Kei,

(2011). That said,

Virginia law provides a defense to officers who subjectively “believed[] in good faith, that

[their] conduct was lawful” and whose subjective beliefs were objectively reasonable.

DeChene v. Smallwood,

(1984) (quoting Bivens v. Six Unknown

Named Agents of Fed. Bur. Of Narc.,

(2d Cir. 1972)). Although there

is limited guidance on the scope of this defense, DeChene’s reliance on Bivens suggests

that Virginia’s good-faith exception is congruent with the federal qualified immunity

defense. See

We therefore hold that, 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.

22 The Officers are also entitled to summary judgment on Mr. Wingate’s malicious

prosecution claim. To prove a malicious prosecution claim under Virginia common law,

Mr. Wingate must establish that a defendant (1) instituted or procured a criminal

prosecution of the plaintiff; (2) without probable cause; (3) acted maliciously; and (4) the

prosecution was terminated in a manner not unfavorable to the plaintiff. Brice v. Nkaru,

(4th Cir. 2000). Malice exists when the individual who institutes or

procures the prosecution has a “controlling motive other than a good faith desire to further

the ends of justice, enforce obedience to the criminal laws, suppress crime, or see that the

guilty are punished.” Hudson v. Lanier,

(1998). “Malice is not

presumed by law; it must exist in fact and be proven like any other fact.” Montanile v.

Botticelli, No. 1:08-cv-0716(JCC),

, at *4 (E.D. Va. Nov. 25, 2008)

(citing Freezer v. Miller,

(1934)). The record before the district court is

devoid of any evidence of malice as defined by Virginia law. And, on appeal, Mr. Wingate

fails to argue to the contrary. The Officers are therefore entitled to judgment on this claim.

Albeit on separate grounds, we affirm the district court’s grant of summary

judgment for the Officers on Mr. Wingate’s claims under the Virginia common law.

IV.

In sum, the district court erred in granting Deputy Fulford summary judgment on

Mr. Wingate’s claim that the deputy conducted an unconstitutional investigatory stop. We

reverse and remand for further proceedings consistent with this opinion. We affirm the

23 district court’s grant of summary judgment for the Officers on Mr. Wingate’s remaining

federal and common law claims.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS

24 RICHARDSON, Circuit Judge, concurring:

I readily concur with the majority’s resolution of this case. But I have one

reservation. The majority holds that constitutionally enforcing Stafford County Ordinance

§ 17-7(c) requires “a valid investigatory stop, supported by Terry-level

suspicion.” Majority Op. 17. 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.

Consider, for example, an officer requiring a driver’s identification at a

constitutionally proper, but suspicionless, sobriety checkpoint. Or an officer at a border

crossing or secure facility who asks for identification from someone seeking entry. In those

instances (and others), the encounter might constitutionally permit enforcing a law

requiring identification. Those circumstances were not addressed in Brown v. Texas,

(1979) or Hiibel v. Sixth Judicial District Court of Nevada,

(2004).

And I would make plain that we are not expanding their guidance here, where we are

without briefing on those issues and those circumstances are not before us.

25