Carter v. Officer S. Khan
Filing
24
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 11/04/2015. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BARRY CARTER,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
OFFICER S. KHAN,
Defendant.
1:15-cv-00572 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter came before the Court on Defendant Officer
Sameer Khan’s (“Khan”) motion for summary judgment.
[Dkt. 15.]
Plaintiff Barry Carter (“Carter”) filed this case against Khan
for unlawful arrest and excessive use of force in violation of
the United States Constitution and state law.
[Dkt. 1.]
This
motion has been fully briefed and argued and is now ripe for
disposition.
For the following reasons, the Court will grant
Defendant’s motion for summary judgment.
I.
Background
The following facts are taken from parties’ Local Rule
56(B) statements and are undisputed1 unless otherwise indicated.
(See Def.’s Stmt. of Facts (“SOF”) [Dkt. 16] at 2-12.)
1
For ease, undisputed facts are referred to by “SOF”
without a party designation.
1
The allegations in Carter’s complaint arise from the
night of February 8, 2014, when Falls Church Police Officer
Sameer Khan deployed his taser while arresting Carter for
obstructing justice and resisting arrest.
The arrest began as a
traffic stop, but escalated when Carter exited his vehicle and
refused several commands to get back inside.
This confrontation
was not Carter’s first meeting with local police officers
regarding his driving of this truck.
A brief look at Carter’s
history with traffic violations will help to frame the
circumstances of Carter’s arrest in February 2014.
About six months before the night of arrest, Officer
Khan pulled behind Carter’s beige 1989 Ford Ranger to inspect
what appeared to be a non-functioning high-mount brake light.
(SOF ¶ 27.)
Khan soon learned that Carter was also driving on a
suspended license.
(SOF ¶ 27.)
Before Khan could activate his
police lights, Carter pulled into a Budget Inn motel parking lot
and exited his truck.
(SOF ¶ 28.)
Khan pulled into the lot and
ordered Carter to get back into the truck, but Carter refused
and instead asked why he was being stopped.
(SOF ¶ 28.)
Khan
explained about the suspended license and equipment violation,
but Carter denied both allegations and did not get back in the
truck until two other officers arrived.
99.)
(SOF ¶ 28; Khan Dep. at
Khan ultimately issued a summons for driving while
2
suspended, which was nolle prossed when Carter remedied his
suspended license. (SOF ¶¶ 31-32.)
Two months later, and four months before the February
arrest, Khan again stopped Carter for a defective high-mount
brake light.
(SOF ¶ 33.)
This time, Carter remained in his
vehicle throughout the stop.
(SOF ¶ 33.)
After Khan conducted
some research on his cruiser’s computer, he decided against
issuing a summons for the high-mount brake light and instead
cited Carter for his truck’s lack of a muffler.
(SOF ¶ 34.)
Carter failed to appear in court in response to this summons,
causing his license to again become suspended.
(SOF ¶ 35.)
Another two months later, Fairfax County police
stopped Carter in the same truck and cited him for driving on a
suspended license, operating an uninspected vehicle, and not
wearing a seat belt.
(SOF ¶ 36.)
Carter again failed to appear
in court and was found guilty in absence.
(SOF ¶ 36.)
These three prior incidents lay the foundation for the
events of February 8, 2014.
That night was scheduled to be
Khan’s last day as a Falls Church police officer before he
transferred to a different police force.
(SOF ¶ 4.)
Khan “had
pretty much stopped writing tickets for minor violations at that
point” as he “didn’t feel that it was necessary to write more
tickets and have more reasons—more court dates to have to come
back to when I was no longer employed by the agency.”
3
(Khan
Dep. 119-20.)
But when he saw a beige Ford Ranger pass him
without a functioning high-mount brake light, Khan decided to
stop the truck to “let the motorist know that they had a
defective equipment violation.”
(Khan Dep. at 23.)
Khan
followed the truck for only a few seconds before it pulled into
the same Budget Inn where Carter and Khan met months earlier.
(SOF ¶ 10.)
the truck.
Khan stopped his cruiser about twenty feet behind
(SOF ¶ 11.)
Upon coming to a stop in the parking lot, Carter
immediately exited his truck.
(SOF ¶ 11.)
Carter testified
that he was not mad at this time, but he was “annoyed—very
annoyed” and began to engage Khan in a verbal “back and forth”
without leaving the side of his truck.
238.)
(Carter Dep. at 60, 63,
Carter described the incident as follows:
[I] [g]ot out of the vehicle.
I asked him
what he stopped me for. He asked me to get
back in my vehicle. Well, at first he said
the light. He said the light. And I asked
him why would you stop me for the light,
we’ve been through it before and the light
doesn’t count.
He asked me to get back in
my vehicle.
So I asked him the question
again.
And then I told him what he was
doing was illegal.
He said what he was
doing was not illegal.
At that point, he
asked me to get back in my vehicle again.
And I asked—I said the same thing to him
again about stopping about the light. We’ve
been to court before.
Why are we still
going through this with the light.
He
ordered me to get back in the vehicle again.
I asked him about the light one more time.
And then I said fine, I’m calling Fairfax
4
County Police. I turned to get back into my
vehicle.
I hear you’re under arrest, pow.
That’s how it ended.
(Id. at 63-64.)
The “pow” Carter refers to was not a sound, but
instead was a five-second cycle of 50,000 volts at .03 amperage
from Khan’s taser.
(SOF ¶ 19; Carter Dep. at 64.)
This shock
caused Carter to spin “a little bit” and fall to the ground in
the “general vicinity” of where he was standing when the taser
prongs struck him.
(Carter Dep. at 68.)
Photos from the scene
show Carter on the ground after the shock about five to ten feet
from his truck.
(Def.’s Ex. 26.)
In Khan’s retelling of the circumstances of arrest,
Carter “exited the vehicle in an aggressive manner, yelling at
me with his fist balled,” advanced toward the patrol car and
began to yell obscenities.
(Khan Dep. at 30-32.)
Khan says he
ordered Carter back into the truck two times before placing a
quick dispatch call for immediate backup.
(Id. at 37.)
He then
aimed his taser’s laser sight at Carter’s chest and told Carter
he was under arrest.
(Id. at 40, 118.)
Carter then turned back
toward his truck saying “you can’t do hit [sic] shit to me.”
(Id. at 38.)
As Carter walked toward the truck, Khan deployed
one five-second shock from his taser causing Carter to fall
immediately to the ground.
(Id. at 37-39.)
The only other witness was Carter’s surrogate daughter
Ashley Good, who was in the passenger seat of the truck
5
throughout this event.
According to Good, Carter did not appear
angry and his tone of voice was regular, but she “could tell he
was frustrated from how he was saying what he was saying.”
(Good Dep. at 29.)
And although she did not see Carter do
anything aggressive, she could sense frustration or tenseness
from his “body language.”
(Id.)
There are no objective recordings of these encounters.
Khan’s car-mounted camera had not been functioning for several
months at the time of the arrest.
(Khan Dep. at 15.)
There are
a few brief recordings of Khan’s calls to police dispatch.
Def.’s Ex. 1.)
(See
One of those calls recorded a loud,
indistinguishable voice in the background, which Khan argues is
Carter yelling.
(See Id. at File 232428; Decl. of Lt. Carter
¶ 2 (identifying this voice as Carter yelling).)
That brief
recording, however, is uninformative of the tone or substance of
Carter’s “words back and forth” with Khan.
About thirty seconds after Khan deployed his taser,
officers arrived in response to Khan’s radio request for help.
(Khan Dep. at 55.)
The first officer on the scene, Officer
Issaev, quickly handcuffed Carter, who was still on the ground.
(SOF ¶ 21.)
Emergency medical services were then dispatched to
remove the taser prong, as Falls Church protocol does not permit
officers to remove them.
(SOF ¶ 22.)
Khan allowed Carter to
remain lying in the parking lot handcuffed during this wait
6
because he was concerned moving Carter might cause injury, in
light of Carter’s fall to the pavement.
(SOF ¶ 22.)
An
ambulance arrived shortly before midnight and cleared Carter
medically and removed the taser prong from Carter’s lower back.
(SOF ¶ 24.)
Later, Khan brought Carter before a magistrate
judge, who found probable cause to issue warrants for Carter’s
resisting arrest and obstructing justice.
(SOF ¶ 26.)
Carter
was also cited for lack of a valid inspection and a cracked
windshield.
prossed.
(SOF ¶ 26.)
All of these charges were nolle
(See Def.’s Ex. 5-8.)
Although Carter’s claims in this case relate only to
the events of February 8, 2014, his driving problems continued
after that night.
In March 2014, Fairfax County police cited
Carter for operating an uninspected vehicle and he was found
guilty in absence.
(SOF ¶ 37.)
In November 2014, Carter’s lack
of vehicle inspection resulted in another Fairfax County
summons.
(SOF ¶ 38.)
Finally in January 2015, Fairfax County
issued Carter a summons for invalid inspection and he was found
guilty in absence.
(SOF ¶ 39.)
At the time of Carter’s
deposition in August 2015, his truck still had not passed
inspection.
(Carter Dep. at 106.)
Carter filed suit in Fairfax County on April 2, 2015,
alleging unreasonable seizure and excessive force in violation
of the U.S. Constitution, in addition to state law claims for
7
false arrest and false imprisonment, excessive force, malicious
prosecution, and intentional infliction of emotional distress.
On April 30, 2015, Khan removed the case to this Court and later
moved for summary judgment.
II.
Legal Standard
Summary judgment shall be granted “if the movant shows
that there is no genuine dispute as to any material facts and
the movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
The moving party bears the initial burden of “informing
the district court of the basis for its motion” and identifying
the matter “it believes demonstrate[s] the absence of a genuine
issue of material fact.”
Celotex, 477 U.S. at 323.
Once a
motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986).
facts are material.
242, 248 (1986).
The substantive law defines which
Anderson v. Liberty Lobby, Inc., 477 U.S.
“Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Id.
Therefore, “the
non-moving party ‘may not rest upon mere allegation or denials
of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.’”
8
Hughes v. Bedsole, 48
F.3d 1376, 1381 (4th Cir. 1995) (quoting Anderson, 477 U.S. at
256).
A dispute is “genuine” when “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.”
Anderson, 477 U.S. at 248.
Thus, when reviewing the
record on summary judgment, the court “must draw any inferences
in the light most favorable to the non-movant” and “determine
whether the record taken as a whole could lead a reasonable
trier of fact to find for the non-movant.”
Brock v. Entre
Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir. 1991)
(citations omitted).
“[A]t the summary judgment stage the
judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
III. Analysis
A.
42 U.S.C. § 1983
Carter brought his federal claims for unreasonable
seizure and excessive use of force under 42 U.S.C. § 1983, which
“permits suit by a citizen who has been deprived of a right
secured by the Constitution by a person acting under color of
state law.”
1996).
Bonner v. Anderson, 81 F.3d 472, 474 (4th Cir.
Khan asserts that he is entitled to qualified immunity
on Carter’s federal claims.
(Def.’s Mem. in Supp. at 13-26.)
9
Qualified immunity protects government officials
performing discretionary functions from liability, provided that
“their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.”
Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
This
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, 555 U.S. 223, 231 (2009).
In
light of those interests, qualified immunity “gives ample room
for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.”
Hunter v.
Bryant, 502 U.S. 224, 229 (1991) (internal quotations omitted).
In other words, qualified immunity gives “government officials
cover when they resolve close calls in reasonable (even if
ultimately incorrect) ways.”
Hagans v. Franklin Cnty.
Sherriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012).
There are two steps in the qualified immunity
analysis.
Step one is to determine if the plaintiff has shown a
violation of a constitutional right.
Step two is to determine
if that right was “clearly established” at the time of the
defendant’s alleged misconduct.
Pearson, 555 U.S. at 232.
10
The
answer to this second step depends on whether “it would be clear
to an objectively reasonable officer that his conduct violated
[the] right.”
2002).
Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir.
Courts can exercise their sound discretion when deciding
which of the two steps to address first.
Pearson, 555 U.S. at
236.
The Supreme Court has emphasized that “[b]ecause
qualified immunity is ‘an immunity from suit rather than a mere
defense to liability . . . it is effectively lost if a case is
erroneously permitted to go to trial.”
Id. at 231 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Furthermore, a
“driving force behind creation of the qualified immunity
doctrine was a desire to ensure that insubstantial claims
against government officials [will] be resolved prior to
discovery.”
Id. (quoting Anderson v. Creighton, 483 U.S. 635,
640 n.2 (1987)) (internal quotations omitted).
Therefore,
qualified immunity should be addressed at the earliest possible
stage of litigation, ordinarily at summary judgment.
Id.
Applying those principles to this case, the Court
finds that qualified immunity protects Khan from both the
unlawful arrest and excessive force claim.
address the unlawful arrest claim.
11
The Court will first
1.
Unlawful Arrest
Applying the first step in the qualified immunity
analysis, the Court concludes that Carter’s arrest did not
violate the U.S. Constitution.
The Fourth Amendment protects
against unreasonable seizures, including unreasonable seizures
of a person.
California v. Hodari D., 499 U.S. 621, 624 (1991).
It is well-settled, however, that “[i]f an officer has probable
cause to believe that an individual has committed even a very
minor criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”
v. City of Lago Vista, 532 U.S. 318, 354 (2001).
Atwater
States cannot
change this federal constitutional standard by prohibiting
arrests for minor offenses.
Virginia v. Moore, 553 U.S. 164,
176 (2008).
Probable cause to arrest exists when “facts and
circumstances within the officer’s knowledge . . . sufficient to
warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has
committed, is committed, or is about to commit an offense.”
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
A finding of
probable cause “must be supported by more than a mere suspicion,
but evidence to convict is not required.”
Taylor v. Waters, 81
F.3d 429, 434 (4th Cir. 1996) (citing Wong Sung v. United
States, 371 U.S. 471, 479 (1963)).
12
Therefore, the relevant
question for this Court is “whether a reasonable police officer
could have believed” that probable cause existed to arrest
Carter on February 8, 2014.
290 (4th Cir. 2001).
Rogers v. Pendleton, 249 F.3d 279,
This analysis turns on the following two
factors: “the suspect’s conduct as known to the officer, and the
contours of the offense thought to be committed by that
conduct.”
Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.
1992).
When considering whether probable cause exists, the
court is not limited to the officer’s stated reasons for arrest.
As the Supreme Court has made clear, an officer’s “subjective
reason for making the arrest need not be the criminal offense as
to which the known facts provide probable cause.”
Alford, 543 U.S. 146, 153 (2004).
Devenpeck v.
In other words, an officer’s
“initial reason for making the arrest need not be the criminal
offense that ultimately is supported by probable cause from the
known facts.”
Ware v. James City Cnty., Va., 652 F. Supp. 2d
693, 706 (E.D. Va. 2009).
With these principles in mind, and
viewing the facts in the light most favorable to Carter, the
Court finds Khan had at least two bases to arrest Carter.
i.
Equipment Violation
Khan had probable cause to arrest Carter for defective
equipment in violation of Virginia Code § 46.2-1014.1.
This
statute requires “every Virginia-registered passenger car
13
manufactured for the 1986 or subsequent model year” to be
equipped with a “supplemental center high mount stop light” to
be “actuated only in conjunction with the vehicle’s brake lights
and hazard lights.”
A “passenger car” is “every motor vehicle
other than a motorcycle or autocycle designed and used primarily
for the transportation of no more than 10 persons, including the
driver.”
Va. Code Ann. § 46.2-100.
Based on the information
Khan knew at the time, it was reasonable under the Fourth
Amendment to arrest Carter for violating this statute.
When Khan saw Carter’s truck, he immediately noticed
the lack of a high-mount brake light.
Photos from the scene of
the arrest show a cab covering Carter’s truck bed.
Mem. in Supp. Ex. 26.)
(See Def.’s
From these photos, it is clear that
Carter’s truck did not have a visible high-mount brake light,
just as Khan observed and Carter admits.
(Carter Dep. at 121.)
Furthermore, Carter’s truck is a 1989 model, which is within the
model-year bound by the high-mount brake light statute.
Carter argues that his truck does not need to comply
with § 46.02-1014.1 because he primarily uses it to transport
tools and work equipment.
Carter, however, cites no legal
authority or facts to support this claim.
Even if it were true
that his truck is exempt, something this Court does not
conclude, “an arrest, though warrantless, is valid where the
officer had probable cause to believe that a misdemeanor was
14
committed in his presence, even though the action he observed
did not in fact constitute a misdemeanor.”
DeChene v.
Smallwood, 311 S.E.2d 749, 750 (Va. 1984) (quoting Yeatts v.
Minton, 177 S.E.2d 646, 648 (Va. 1970)).
It was certainly
reasonable for Khan to conclude that the truck qualifies as a
passenger vehicle, given that it has no commercial markings, was
being driven during non-business hours, and Carter was actually
transporting a passenger that night.
Therefore, Khan had
probable cause to believe Carter violated Virginia Code § 46.2104.1 in Khan’s presence, which is sufficient to permit arrest
under the Fourth Amendment.
ii.
Obstruction of Justice
Khan also had probable cause to arrest Carter for
violating Virginia Code § 18.2-460(A)’s prohibition against
obstructing justice.
That provision imposes a Class 1
misdemeanor when “any person without just cause knowingly
obstructs . . . any law enforcement officer . . . in the
performance of his duties as such or fails or refuses without
just cause to cease such obstruction when requested to do so.”
Va. Code Ann. § 18.2-460(A).
The question for the court is
whether, the facts and circumstances “warranted a reasonable
belief that [the arrestee] was, or was on the verge of,
unlawfully obstructing [the officer] in the performance of his
duties.”
Coffey v. Morris, 401 F. Supp. 2d 542, 547 (W.D. Va.
15
2005) (quoting Wilson v. Kittoe, 337 F.3d 392, 398-99 (4th Cir.
2003)).
To answer this question, we consider the “contours of
the offense” under Virginia law.
Rogers, 249 F.3d at 291.
The Fourth Circuit has interpreted Virginia law as
drawing a distinction between conduct that “merely impedes or
frustrates the officer, which does not ground liability under
the Obstruction Statute, and conduct that intentionally thwarts
or prevents an arrest, which does.”
(citing Rogers, 249 F.3d at 291)).
Kittoe, 337 F.3d at 400
Courts applying this
standard to traffic stops further illuminate the dividing line
between obstructing justice and merely frustrating an officer.2
In Coffey v. Morris, for example, the district court found
probable cause of obstruction of justice when a passenger exited
a stopped vehicle after the officer ordered both passenger and
driver to remain inside the car.
2
401 F. Supp. 2d 542, 547 (W.D.
Carter cites the case of Jordan v. Commonwealth, 643
S.E.2d 166, 168 (Va. 2007), to support his argument that merely
rendering an officer’s task more difficult or being less than
cooperative is not obstructing justice. (See Pl.’s Mem. in
Opp’n at 7.) Jordan’s discussion of Virginia law informed this
Court’s analysis, but its holding does not control the outcome
of this case for several reasons. First, Jordan involved
obstruction of justice under § 18.2-460(C), which is a Class 5
felony requiring proof of obstructing justice through “threats
of bodily harm or force.” Obstructing justice under § 18.2460(C) is far more serious than the Class 1 misdemeanor involved
in this case under § 18.2-460(A). Second, Jordan considered
whether there was sufficient evidence to sustain a conviction of
obstruction of justice. 643 S.E.2d at 642. This Court’s
inquiry, however, is only whether there was probable cause to
believe obstruction of justice occurred, not whether a
conviction could be sustained.
16
Va. 2005).
The officer then tried to grab the passenger’s arm
to arrest her and the passenger resisted.
Id.
After concluding
that the officer’s order to remain in the car was lawful, the
court found probable cause that the passenger obstructed justice
by disobeying the order and exiting the car.
Id. at 546.
Therefore, the officer was entitled to qualified immunity on the
§ 1983 claim for unlawful arrest.
Similarly, in Durney v. Doss,
the Fourth Circuit found probable cause to arrest a driver who
refused to comply with an officer’s request for identifying
information, returned to her vehicle without providing the
information, and started her ignition.
(4th Cir. 2004).
106 F. App’x 166, 170
Additionally, in Ware v. James City County,
probable cause existed when a suspect refused to speak to an
officer, stepped toward the officer aggressively, and pointed
his finger in the officer’s face.
(E.D. Va. 2009).
652 F. Supp. 2d 693, 708
These cases demonstrate that Khan had probable
cause to believe Carter had or was on the verge of obstructing
justice.
By immediately exiting his vehicle, Carter interfered
with Khan’s ability to safely mark out his position on the radio
or run Carter’s license plate number.
Furthermore, in Carter’s
own testimony, he admits to refusing several commands to return
to his truck.
While outside, Carter challenged Khan’s basis for
pulling him over and insisted that Khan had no right to stop
17
him.
Even Carter’s eventual turn toward his truck at the end of
the encounter was in defiance, as Carter stated he was going to
call Fairfax County police on Khan.
These actions bring
Carter’s conduct within the realm of cases cited above.
Therefore, Khan’s arrest was reasonable under the Fourth
Amendment and cannot form the basis of a § 1983 action.
iii.
Resisting Arrest
Having found that probable cause existed as to at
least two independent misdemeanors, the Court need not consider
whether there was also probable cause to arrest for resisting
arrest.
See Ware, 652 F. Supp. 2d at 709 (declining to consider
alternative theories of probable cause after concluding that
probable cause to arrest existed as to one crime).
In conclusion, viewing the facts in the light most
favorable to Carter, no reasonable juror could find a Fourth
Amendment violation for unreasonable arrest.
The Court will now
turn to Carter’s claim of excessive use of force.
2.
Excessive Use of Force
Carter argues that Khan’s use of a taser during the
arrest was excessive force in violation of the Fourth Amendment.
After considering parties’ memoranda and oral argument, the
Court concludes that Khan’s use of force was not unreasonable
and did not violate any clearly established law.
Thus,
qualified immunity protects Khan from liability for this claim.
18
i.
Fourth Amendment
The Fourth Amendment “bars police officers from using
excessive force to seize a free citizen.”
Jones v. Buchanan,
325 F.3d 520, 527 (4th Cir. 2005) (quoting Graham, 490 U.S. at
395).
To prove excessive force, the plaintiff must show “that
the officer’s use of force to achieve arrest was objectively
unreasonable under the circumstances.”
Miller v. Parrish, No.
3:12cv873, 2013 WL 1868028, at *7 (E.D. Va. May 2, 2013) (citing
Graham, 490 U.S. at 395).
The objective reasonableness standard
is highly fact dependent and requires the court to consider the
totality of the circumstances “judged from the perspective of a
reasonable officer at the scene, rather than with the 20/20
vision of hindsight.”
Gray v. Bd. of Cnty. Com’r of Frederick
Cnty., 551 F. App’x 666, 672-73 (4th Cir. 2014).
In particular,
courts should consider “‘the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.’”
Meyers v.
Balt. Cnty., Md., 713 F.3d 723, 732-33 (4th Cir. 2013) (quoting
Graham, 490 U.S. at 396)).
Additionally, “the extent of the
plaintiff’s injury is also a relevant consideration.”
325 F.3d at 527.
Jones,
Courts must consider “the salient events ‘in
full context, with an eye toward the proportionality of the
force in light of all the circumstances.’”
19
Parker v. Loren, No.
1:13cv927, 2015 WL 3767555, at *4 (E.D. Va. June 16, 2015)
(quoting Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994)).
Applying those factors and viewing the evidence in the
light most favorable to Carter, the Court finds that Khan’s use
of force was objectively reasonable.
The facts establish that
Khan had probable cause to believe Carter committed a minor
traffic violation and obstructed justice.
This routine traffic
stop escalated as a result of Carter immediately exiting his
vehicle, questioning and challenging Khan’s authority, and
refusing several verbal commands to get back inside his truck.
Carter describes his attitude during this encounter as “annoyed—
very annoyed” and his daughter described his demeanor as
frustrated and tense.
During this verbal exchange, Khan did not
believe there was “any threat of deadly force to me or anyone
else.”
(Khan Dep. at 39.)
But when Carter turned toward his
open truck, Khan reasonably feared that Carter might retrieve a
weapon or flee the scene.
This fear was supported by Carter’s
continued challenges of Khan’s authority, even when turning
toward the truck.
Furthermore, these events occurred rapidly
and in the darkness of near midnight.
From these circumstances,
Khan “faced an uncertain situation with the potential to evolve
into something more threatening, and acted in response.”
Parker, 2015 WL 3767555, at *5 (finding two uses of taser,
20
including twenty-five-second shock, reasonable).
That response
was not disproportionate.
If Khan was to deploy any force at all, a single fivesecond shock from his taser was the least amount of force
reasonably available.
Falls Church police policy describes the
“typical escalation of force pattern” as “officer presence,
verbal commands, physical force, chemical munitions, electronic
control device (ECD), baton, less lethal (kinetic energy)
munitions, firearm.”
(Def.’s Mem. in Supp. Ex. 31.)
of force complied with this policy.3
Khan’s use
When Khan deployed his
taser, verbal commands had proven insufficient to control
Carter.
Furthermore, Carter was too far from Khan for the
effective use of physical restraints or pepper spray.
Thus, the
lowest degree of force available was an electronic control
device, or taser.
And although a taser is “more than a non-
serious or trivial use of force,” Thomas v. Holly, 533 F. App’x
208, 217 (4th Cir. 2013), the taser in this case caused no
injury other than the initial shock and a minor puncture wound
to Carter’s lower back.
3
A recent study found that the use of a taser “is
associated with overall decreases in suspect and officer
injuries when deployed with appropriate agency policies” and the
“relative risk of [taser] deployments appears to be lower than
other use-of-force options.” John H. Laub, Director, Nat’l
Inst. of Justice, Study of Deaths Following Electro Muscular
Disruption 3 (2011), available at
www.ncjrs.gov/pdffiles1/nij/233432.pdf.
21
In conclusion, the circumstances viewed in the light
most favorable to Carter demonstrate that some use of force was
justified and the force employed was reasonable.
Therefore, the
Court grants Khan’s motion for summary judgment on the § 1983
claim for excessive force.
ii.
Clearly Established Law
Even if Khan’s use of force was not reasonable, Khan
would none-the-less be entitled to qualified immunity because
his actions did not violate clearly established law.
“For a
constitutional right to be clearly established, its contours
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”
Pelzer, 536 U.S. 730, 739 (2002).
Hope v.
To determine what a
reasonable officer would understand, the court focuses “not upon
the right at its most general or abstract level, but at the
level of its application to the specific conduct being
challenged.”
1996).
Jackson v. Long, 102 F.3d 722, 728 (4th Cir.
Looking at the contours of the law governing the use of
a taser against an unsubdued and confrontational suspect, the
Court cannot say that a reasonable officer would have understood
the five-second use of a taser to be illegal in this case.
The Fourth Circuit has provided only limited guidance
on the Fourth Amendment’s limitations on taser usage.
See
Russell v. Wright, 916 F. Supp. 2d 629, 638 (W.D. Va. 2013)
22
(“The Supreme Court of the United States has not issued a
decision substantively evaluating the use of tasers in an
excessive force claim, nor does the law of this circuit offer
many helpful examples.”); Ian A. Mance, Comment, Power Down:
Tasers, The Fourth Amendment, and Police Accountability in the
Fourth Circuit, 91 N.C. L. Rev. 606, 616 (2013) (concluding from
a review of cases that “the Fourth Circuit has yet to
meaningfully consider a claim of excessive force by taser under
the Fourth Amendment”).
The primary guidance on taser use-of-
force in the Fourth Amendment context comes from Meyers v.
Baltimore County, 713 F.3d 723, 734 (4th Cir. 2013).
The
officers in Meyers used a taser on a suspect three times in
prong-mode, followed by seven additional stun-mode uses after
the suspect had been disarmed of his baseball bat and restrained
by three officers.
Id. at 727-29.
The Fourth Circuit agreed
with the district court that the first three prong-mode uses
were reasonable, but the following seven uses were excessive.
Id. at 733-34.
The Fourth Circuit stated affirmatively that
“[i]t is an excessive and unreasonable use of force for a police
officer repeatedly to administer electrical shocks with a taser
on an individual who no longer is armed, has been brought to the
ground, has been restrained physically by several other
officers, and no longer is actively resisting arrest.”
Id. at
734; see also Orem v. Rephann, 523 F.3d 442, 447-49 (4th Cir.
23
2008) (finding Due Process Clause violation from taser use that
was intended to “punish or intimidate” and was “wanton,
sadistic, and not a good faith effort to restore discipline” of
a woman detained in a police car).
Meyers, however, was an
extreme case of taser misuse and provides limited guidance for
less clear-cut cases involving unsubdued and noncompliant
suspects, like Carter.
Furthermore, there is no “consensus of cases from
other circuits” that would have put Carter “on notice that his
conduct is unconstitutional.”
See Altman v. City of High Point,
N.C., 330 F.3d 194, 210 (4th Cir. 2003) (looking at other
circuits’ case law).
The Court of Appeals for the Eight Circuit
has stated that it “is clearly established that force is least
justified against nonviolent misdemeants who do not flee or
actively resist arrest and pose little or no threat to the
security of the officers or the public.”
Brown v. City of
Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009) (denying
qualified immunity for taser use on a woman passenger not
resisting arrest or attempting to flee but not complying with
order to get off her cell phone); Cavanaugh v. Woods Cross City,
625 F.3d 661, 666-67 (10th Cir. 2010) (finding it excessive to
use taser on woman suspected of domestic violence who merely
walked into her house before officer gave any verbal command,
warning, or announced the reason for his presence).
24
Correspondingly, the Sixth Circuit has stated the following rule
based on an arrestee’s active resistance: “If a suspect actively
resists arrest and refuses to be handcuffed, officers do not
violate the Fourth Amendment by using a taser to subdue him.”
Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505 (6th
Cir. 2012).
Other courts appear to follow a similar active-
resistance standard.
See, e.g., McKenny v. Harrison, 635 F.3d
354, 360 (8th Cir. 2011) (finding no excessive force when tasing
unrestrained suspect who attempted to escape arrest through an
open window even though suspect died as a result); Draper v.
Reynolds, 369 F.3d 1270, 1277-78 (11th Cir. 2004) (finding it
reasonable to use taser on aggressive motorist who refused to
comply with multiple verbal commands to produce documents).
A recent district court case applying the foregoing
standards supports the conclusion that Khan did not violate
clearly established law.
In Russell v. Wright, two officers
stopped a vehicle driven by a man suspected of domestic
violence.
916 F. Supp. 2d 629 (W.D. Va. 2013).
The suspect
immediately exited his vehicle and walked toward the officers’
cars with his hands on his head.
Id. at 633.
One officer
shouted for the suspect to “get down—get down on the ground.”
Id.
Instead of following this command, the suspect remained
standing and dropped his hands to his side.
Id.
As a result,
one officer deployed his taser into the suspect’s chest.
25
Id. at
634.
Id.
The whole incident was over in about seventeen seconds.
As a result of the shock, the suspect went into cardiac
arrest and ultimately died.
Id.
After conducting an extensive
review of the existing law, the district court concluded that it
“simply cannot say that [the officer’s] use of his taser under
these circumstances violated clearly established law.”
Id.
The
facts and outcome of Russell support a similar conclusion in
this case.
Even viewing the facts in the light most favorable to
Carter, his actions are more analogous to the active resistance
and threat of danger in McKenny, Draper, and Russell, than to
the above-cited cases finding excessive taser usage.
Carter
admittedly refused at least two orders to return to his truck,
during which time he describes his demeanor as “very annoyed.”
Furthermore, even by Carter’s daughter’s account, his body
language was tense and he was frustrated.
When Carter did move
to return to his truck, he remained defiant of Khan’s authority
to stop him, which reasonably indicated a threat of flight or
risk escalation.
Carter’s memorandum in opposition to summary
judgment cited no cases that have found the use of a single
taser jolt in such circumstances to be an unreasonable
application of force, let alone clearly established law.
The
Russell court’s opinion, however, strongly indicates that no
such clearly established law exists for this case.
26
This Court’s
survey of the law confirms that conclusion.
Therefore, the
Court finds that Khan is entitled to qualified immunity and
grants his motion for summary judgment on this § 1983 claim of
excessive use of force.
B.
State Law Claims4
In addition to the federal claims, Carter asserted
several state law claims arising from the February 8, 2014
incident and arrest.
Specifically, Carter alleges (1) False
Arrest and False Imprisonment (Compl. ¶¶ 26-30); (2) Excessive
Force (id. ¶¶ 32-36); (3) Malicious Prosecution (id. ¶¶ 37-40);
and (4) Intentional Infliction of Emotional Distress (id. ¶¶ 4143).
Khan argues that he is immune under Virginia law from any
state law claims and that he has not violated state law.
Def.’s Mem. in Supp. at 26-27.)
(See
The Court will consider these
arguments in turn.
1.
Sovereign Immunity
At the outset, the Court rejects Khan’s argument that
sovereign immunity protects him from liability for these alleged
intentional torts.
The Court acknowledges that the application
4
As a threshold matter, having decided the federal
claims in favor of Carter, the Court must determine whether to
exercise its discretion to address these state law claims.
Because the state law claims have been briefed by both parties
and are without merit, “the balance between judicial efficiency
and comity is struck in favor of the federal court’s disposition
of the state claims.” McLenagan v. Karnes, 27 F.3d 1002, 1009
(4th Cir. 1994).
27
of sovereign immunity in civil suits against officers is
convoluted.
In Virginia, a government agent performing
discretionary functions is protected from liability for ordinary
negligence, but may be liable for acts of gross negligence.
See
Colby v. Boyden, 241 Va. 125, 128 (Va. 1991) (“[T]he degree of
negligence which must be shown to impose liability is elevated
from simple to gross negligence.”).
Some courts have applied
this gross-negligence standard even in the context of
intentional torts, such as assault and battery.
See, e.g., Ware
v. James City Cnty., Va., 652 F. Supp. 2d 693, 712 (E.D. Va.
2009) (applying immunity to intentional tort claims); Veney v.
Ojeda, 321 F. Supp. 2d 733, 747 (E.D. Va. 2004) (considering,
but not finding, immunity for assault and battery).
This Court believes it is more consistent with
Virginia law to not consider sovereign immunity in the context
of these intentional torts.
In Elder v. Holland, the Virginia
Supreme Court stated that “we must conclude that a State
employee may be held liable for intentional torts.”
369, 372 (Va. 1967).
155 S.E.2d
Furthermore, when discussing the loss of
immunity through gross negligence, the Fourth Circuit has stated
that an officer “obviously could not avail himself of the
defense [of sovereign immunity] had he intended to commit an
assault and battery.”
McLenagan, 27 F.3d at 1008 n.10.
Many
district courts interpreting Virginia law have declined to apply
28
sovereign immunity to the torts Carter alleges in this case.
See, e.g., Hales v. City of Newport News, No. 4:11cv28, 2011 WL
4621182, at *5-8 (E.D. Va. Sept. 30, 2011) (considering
sovereign immunity for negligence claim, but not for intentional
torts); Harrison v. William Cnty. Police Dept., 640 F. Supp. 2d
688, 712 (E.D. Va. 2009) (“Sovereign immunity, however, does not
extend to state employees who commit intentional torts.
Thus,
the state law claims for the intentional tort of assault and
battery . . . cannot be dismissed on sovereign immunity
grounds.”
(internal citations omitted));
Cominelli v. The
Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 716
(W.D. Va. 2008) (“[S]tate employees are not immune for wanton or
grossly negligent behavior, intentional torts, or actions taken
outside the scope of their employment.”).
Therefore, the Court
will not apply sovereign immunity to these alleged intentional
torts.
2.
The Court turns now to the merits of Carter’s claims.
False Arrest and False Imprisonment
Carter has asserted a false arrest and false
imprisonment claim against Khan.
“False imprisonment is the
restraint of one’s liberty without any sufficient legal excuse.”
Lewis v. Kei, 708 S.E.2d 884, 890 (Va. 2011).
If an arrest is
lawful, “the plaintiff cannot prevail on a claim of false
imprisonment.”
Id.
In Virginia, a uniformed officer generally
“may arrest, without a warrant, any person who commits any crime
29
in the presence of the officer.”
Va. Code Ann. § 19.2-81.
But,
in the case of Class 1 or 2 misdemeanors, Virginia statute
limits the officer to issuing a summons unless certain statutory
exceptions permit arrest.
Va. Code Ann. § 19.2-74(A)(1).
Obstruction of justice under Virginia Code § 18.2-460(A) is a
Class 1 misdemeanor, thus an arrest is only lawful for this
offense if one of the statutory exceptions is present.
See
Spiers v. Sydnor, 3 F. App’x 176, 180 (4th Cir. 2001) (finding
that even if probable cause of obstruction of justice existed
“and therefore that he had the right to issue Spiers a summons,
that offense did not give Sheriff Sydnor the right to make the
equivalent of a custodial arrest”).
The exceptions permitting an arrest pursuant to the
observation of a Class 1 misdemeanor include “if any such person
shall fail or refuse to discontinue the unlawful act” or “if any
person is believed by the arresting officer to be likely to
disregard the summons issued” or “to be likely to cause harm to
himself or any other person.”
Va. Code Ann. § 19.2-74(A)(1).
“[T]he standard for determining satisfaction of the statute is
objective, whether evidence supports a reasonable belief that
the statutory circumstances obtain.”
United States v. Hudson,
497 F. Supp. 2d 771, 774 (W.D. Va. 2007) (quoting West v.
Commonwealth, 549 S.E.2d 605, 606 (Va. Ct. App. 2001)).
30
The Court has already decided that Khan had probable
cause to believe Carter obstructed justice in his presence.
Thus, the arrest would be lawful if an officer could have
reasonably believed that one of the statutory exceptions
permitting arrest applied.
The Court finds that several
exceptions reasonably applied.
First, a reasonable officer
could have concluded that Carter would not show up in court for
his summons.
Carter failed to respond to a summons Khan issued
only months before, which is how his license became suspended.
Second, Carter’s behavior while handcuffed could lead to the
reasonable conclusion that he would pose a danger to officers if
released from arrest.
Carter admits that while he was
handcuffed he called the officers a “calamity crew” or “keystone
cops” (Carter Dep. at 73, 217), told one of the officers “why
don’t you make me shut up” (Id. at 73), and exchanged other
“words” with an officer suggesting that there might be a
physical conflict if Carter was unhandcuffed.
(Id.)
From all
these facts within Khan’s knowledge that night, an officer could
reasonably have concluded that arrest was lawful under § 19.274(A)(1).
Therefore, summary judgment will be granted for Khan
on Carter’s state law claims of false arrest and false
imprisonment.
31
3.
Excessive Force
In addition to Carter’s § 1983 claim of excessive use
of force, his complaint also alleges a state law claim for
excessive force.
(See Compl. ¶¶ 32-36.)
In Virginia, “an
arrest utilizing excessive force is a battery because that
touching is not justified or excused and therefore is unlawful.”
Gnadt v. Commonwealth, 497 S.E.2d 887, 888 (Va. Ct. App. 1998)
(citing Roger D. Groot, Criminal Offenses and Defenses in
Virginia 26 (3d ed. 1994)).
Carter’s response memorandum
presents no argument in support of his excessive force claim.
Without guidance to the contrary, this Court will evaluate
Carter’s excessive force claim as a claim of battery.
Battery is “an unwarranted touching which is neither
consented to, excused, nor justified.”
S.E.2d 258, 261 (Va. 2003).
Koffman v. Garnett, 574
“A plaintiff’s assault or battery
claim can be defeated by a legal justification for the act, and
Virginia law recognizes that police officers are legally
justified in using reasonable force to execute their lawful
duties.”
Ware, 652 F. Supp. 2d at 712.
“Accordingly, if
reasonable force is used by police officers in execution of
their lawful duties, they are immune from suit for such acts.”
Id.
The Court concluded above that Khan’s actions were
objectively reasonable under the Fourth Amendment and that it
would not have been clear to a reasonable officer that Khan’s
32
taser usage was illegal.
For the same reasons stated above, the
Court finds Khan’s use of force was reasonable for purposes of
this state law claim and thus not a battery.
See Crihfield v.
City of Danville Police Dept., No. 4:07cv00010, 2007 WL 3003279,
at *3 (W.D. Va. Oct. 11, 2007) (“If the alleged police actions
were constitutional or if the officers were entitled to a
qualified immunity defense, then these claims would also be
dismissed.”).
4.
Malicious Prosecution
To succeed on his malicious prosecution claim, Carter
must prove that the prosecution was (1) malicious; (2)
instituted by or with the cooperation of the defendant; (3)
without probable cause; and (4) terminated in a manner not
unfavorable to the plaintiff.
575 (Va. 2011).
O’Connor v. Tice, 704 S.E.2d 572,
Malicious prosecution actions “are not favored
in Virginia and the requirements for maintaining such actions
are more stringent than those applied to other tort cases.”
Id.
The Court has found that probable cause was present in
this case with respect to a traffic violation and obstruction of
justice.
Thus, Carter’s claim of malicious prosecution fails.
See Ware, 652 F. Supp. 2d at 714 (granting summary judgment on
malicious prosecution claim based on finding of probable cause
in § 1983 analysis).
33
5.
Intentional Infliction of Emotional Distress
To recover on a claim of intentional infliction of
emotional distress, Carter must prove “(1) the wrongdoer’s
conduct was intentional or reckless; (2) the conduct was
outrageous or intolerable; (3) there was a causal connection
between the wrongdoer’s conduct and the resulting emotional
distress; and (4) the resulting emotional distress was severe.”
Supervalu, Inc. v. Johnson, 666 S.E.2d 335, 343 (Va. 2008).
Carter’s response brief did not address Khan’s arguments that
several of the elements of an intentional infliction of
emotional distress claim are absent here.
The Court agrees with
Khan, Carter’s claim of intentional infliction of emotional
distress will be dismissed.
The element most obviously lacking in Carter’s claim
is proof of severe emotional distress.
The emotional distress
required to sustain this claim must be “so severe that no
reasonable person would be expected to endure it.”
White, 400 S.E.2d 160, 163 (Va. 1991).
Russo v.
The Virginia Supreme
Court has found that a plaintiff failed to satisfy this standard
by alleging she was “nervous, could not sleep, experienced
stress and ‘its physical symptoms,’ withdrew from activities,
and was unable to concentrate at work.”
Id. at 28.
In this
case, Carter has failed to allege even emotional distress of the
kind rejected in Russo.
Carter’s complaint merely states that
34
Khan’s actions “caused Mr. Carter severe emotional distress.”
(Compl. ¶¶ 41-42.)
Carter failed to identify any symptoms or
consequences of that distress or demonstrate that he has sought
medical treatment.
At this stage of the case, Carter must
present more than bare, conclusory assertions.
See Bouchat v.
Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his] pleadings . . . .’”).
Carter’s memorandum in response to
this motion for summary judgment provides no elaboration on his
alleged distress.
Therefore, Carter’s complaint clearly fails
to establish the necessary element of severe emotional distress
at the summary judgment stage.
Additionally, Carter has not demonstrated that Khan’s
actions were extreme or outrageous.
Sufficiently outrageous
conduct “has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Harris v. Kreutzer, 624 S.E.2d 24, 33 (Va. 2006) (quoting Russo,
400 S.E.2d at 162).
“[I]t is insufficient for a defendant to
have acted with an intent which is tortious or even criminal.”
Russo, 400 S.E.2d at 162 (quoting Restatement (Second) of Torts
commend d. (1965)).
In this case, the Court has found that Khan
35
had probable cause to arrest Carter and exercised a reasonable
degree of force.
Therefore, the Court finds no basis to
categorize Khan’s conduct as beyond all possible bounds of
decency or utterly intolerable.
Having concluded that at least
two of the elements for an intentional infliction of emotional
distress claim are lacking, the Court does not reach the
remaining two elements.
In conclusion, viewing the facts in the light most
favorable to Carter, the Court finds that Khan did not violate
the Fourth Amendment on the night of the arrest.
Additionally,
at the time of the arrest there was no clearly established law
against using a taser one time to restrain an unsubdued and
noncompliant suspect who presented a reasonable threat of force.
Finally, none of Carter’s state law claims have merit.
IV.
Conclusion
For the reasons set forth above, the Court will grant
Defendant’s Motion for Summary Judgment.
An appropriate order
will issue.
November 4, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
36
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