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Deputy immune from suit by innocent man

A victim of mistaken identity who spent three months behind bars cannot sue the deputy whose uncorroborated Internet searches led to his arrest, the 4th U.S. Circuit Court of Appeals has held in a 2-1 split.

While the seizure of Michael Dwayne Durham was unfortunate, it passed constitutional muster because the warrants for his arrest were issued only after a grand jury indicted him, Judge Robert B. King wrote for himself and Chief Judge William B. Traxler Jr.

Their decision affirms that sheriff’s deputy David L. Horner was entitled to qualified immunity as a matter of law.

Judge James A. Wynn Jr. dissented, noting that the U.S. Supreme Court and the 4th Circuit itself have rejected the majority’s line of reasoning in prior cases.

“The undeniable truth remains that, but for Officer Horner’s actions, Durham would never have been arrested and incarcerated,” Wynn wrote. “If the investigative officer cannot be held accountable for his recklessness or incompetence, then where is an innocent man to turn?”

500 miles away

Durham’s first indication that something was amiss came in November 2006, when he was living outside Memphis, Tenn. He got a letter from the Social Security Administration advising him that his disability benefits were being terminated because of an outstanding warrant for his arrest in Wise County, Va., some 500 miles away.

Durham, who had lived in Wise County a decade earlier, went to the authorities in Memphis on Dec. 15, 2006, to “straighten it out.” He waived extradition and was transported to a jail in Virginia.

It turned out that there were three outstanding warrants for Durham’s arrest, stemming from controlled drug purchases made in 2005 by a regional task force in Big Stone Gap, Va.

Based on the seller’s name provided by the confidential informant who acted as the purchaser, the task force found Durham’s Social Security number, and Horner, the deputy, ran it through two Internet sites used by law enforcement.

Horner did not obtain a photo of Durham at that point, or do anything to corroborate that he had the right suspect, even though the searches produced conflicting descriptions and addresses and the sites warned that corroboration was required. Horner also revealed during the litigation that he was not entirely certain he had the right man.

However, once the confidential informant completed three methamphetamine buys from the seller, Horner told the task force to “go ahead and indict” Durham.

That concluded Horner’s official action on the case.

In May 2006, Agent Larry Mullins testified before the grand jury, which handed up the indictments that led to the arrest warrants, which led to the termination of Durham’s disability benefits, which Durham was trying to clear up when he turned himself in.

The Virginia magistrate set bail at $9,000, which Durham was unable to make.

Three days later, a circuit judge appointed counsel, who did not contact Durham until February 2007. Once Durham explained the situation, his lawyer obtained Durham’s cell phone records and, in March 2007, presented them to the prosecutor to establish Durham’s innocence.

The prosecutor dismissed the indictments that same day.

Dug a little deeper

Durham filed suit in 2009. Most of the counts were dismissed early on, leaving only his civil rights claim under 42 U.S.C. 1983 and a state-law malicious prosecution claim against Horner, all based on his seizure.

Horner claimed qualified immunity, and, in December 2010, a federal judge in Big Stone Gap granted his motion for summary judgment.

Wednesday’s decision by the 4th Circuit affirmed.

“The primary problem that Durham faces in this proceeding is that he was indicted by a Wise County grand jury before which Horner did not even testify. …” King wrote. “Horner could hardly have been the instrument of its misapprehension.”

There was no evidence that Horner acted with malice or conspired with Mullins to mislead the grand jury, the majority noted.

“As a result, the grand jury’s probable cause determinations and its three indictments were the proximate cause of Durham’s arrest and detention, which by operation of law constituted a reasonable seizure,” King wrote.

In a footnote, the majority said that Horner dug a little deeper once he learned that Durham had filed suit.

“He eventually showed the [confidential informant] a photograph of a ‘Michael David Durham,’ whom the CI identified as the person who sold him drugs,” King wrote.



Durham v. Horner et al., US4th No. 11-1022. Opinion by King, J.; Wynn, J. dissents. Argued May 15, 2012; decided Aug. 8, 2012. Published.


Did the lower court properly grant summary judgment, on the grounds of qualified immunity, to a deputy who conducted an allegedly reckless and incompetent search that led to the arrest and indictment of an innocent man?


Yes; affirmed. The plaintiff’s claims were based on his wrongful seizure; however, the seizure was based on arrest warrants issued pursuant to the grand jury’s indictment, which established probable cause as a matter of law. (Per the dissent, the Supreme Court and 4th Circuit itself have rejected that line of reasoning.)


Charles Adam Kinser, Montgomery Kinser Law Offices, Jonesville, Va., for appellant; Henry Keuling-

Stout, Keuling-Stout PC, Big Stone Gap, Va., for appellee.

RecordFax #12-0808-60 (18 pages)