Day v. City of Fredericksburg, Virginia et al
Filing
48
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 10/6/2016. (rban, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
LANTZ DAY,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
OFFICER JOSEPH YOUNG,
Defendant.
M E M O R A N D U M
1:15cv1477 (JCC/MSN)
O P I N I O N
This case arises out of Defendant Officer Joseph
Young’s use of a Taser in the course of apprehending Plaintiff
Lantz Day.
It is before the Court now on Defendant’s Motion for
Summary Judgment [Dkt. 41].
Because there remain unresolved
material issues of fact, Defendant’s Motion will be granted in
part and denied in part.
I. Background
The facts upon which the Court relies are taken
primarily from Defendant’s Listed Statement of Undisputed
Material Facts.
See Mem. in Supp. of Mot. for Summ. J. [Dkt.
42] at 2-9 (“SOF”).
They are undisputed unless otherwise noted.
As the Court has already catalogued the circumstances of this
case in a prior Order [Dkt. 25], it repeats here only the facts
germane to its ruling on Defendant’s Motion.
On November 9, 2013, Plaintiff was involved in a car
accident with several other vehicles.
SOF ¶¶ 3, 7-8.
Defendant
was the first police officer to respond, and was the only
officer present throughout the events giving rise to this suit.
See id. ¶ 19.
En route, the police dispatch center relayed to
Defendant that an individual involved in the accident had fled
the scene.
Id. ¶ 5.
It further reported that the man in
question was acting “combative” towards those who attempted to
prevent his flight, and had threatened to kill anyone who called
the police.
Id.
Upon arriving, Defendant found the road blocked by
damaged vehicles and was forced to disembark his police cruiser.
Id. ¶ 6.
Multiple bystanders then directed Defendant to a
nearby intersection, where others pointed Plaintiff out as the
man who had fled the scene of the accident.
Id. ¶¶ 7, 15.
Defendant observed Plaintiff “moving aggressively toward
bystanders.”
Id. ¶ 15.
Defendant approached Plaintiff and ordered him to lie
down with his hands out to his sides.
Id. ¶ 16.
Defendant
advised Plaintiff that he was not under arrest, only being
detained.
See Opp. [Dkt. 44] at 1-2; Young Tr. 66-67.
Plaintiff refused to comply.
SOF ¶ 16.
2
Defendant then drew his
Taser and threatened to use it if Plaintiff did not do as he
asked.
Id.
Plaintiff lied down with his hands beneath his torso.
Id. ¶¶ 16-17.
Defendant again threatened to use his Taser if
Plaintiff did not bring his hands out to his sides, then began
to radio for backup.
Id. ¶ 17.
himself up and began to flee.
At that point, Plaintiff pushed
Id.
Defendant immediately “deployed his Taser toward
[Plaintiff]’s rear torso.”
Plaintiff and he fell.
Id. ¶ 18.
The probes struck
See id. ¶¶ 18-20.
One of the probes,
however, did not properly attach, becoming lodged in Plaintiff’s
clothing.
Id. ¶ 20.
The parties dispute what followed.
Defendant claims
that Plaintiff remained “able to move and speak” because the
probe failed to attach, id. ¶ 21, and “actively resist[ed]
arrest while being handcuffed.”
Id. ¶ 19.
Plaintiff, on the
other hand, contends that the Taser — while not entirely
effective — still delivered enough of an electrical shock to
subdue him.
See Opp. [Dkt. 44] at 2-3.
According to Plaintiff,
his movements once struck by Defendant’s Taser were involuntary,
and he did not actively resist arrest.
See id.
The parties agree, however, that Defendant maintained
the Taser’s electrical current for 42 seconds during the
incident.
See Mot. to Dismiss Exh. 60.
3
Defendant continued to
depress the trigger of the Taser until a bystander, Robert
Schmidt, took handcuffs from Defendant and placed them on
Plaintiff’s wrists.
Id. ¶¶ 20-21.
Defendant took Plaintiff into custody without further
incident.
See id. ¶¶ 23-24.
Plaintiff was later sentenced to
prison for a term of six and one half years in connection with
the accident.
See id. ¶ 26.
On November 6, 2015, Plaintiff filed suit against the
City of Fredericksburg, five John Doe defendants, former
Fredericksburg Police Chief James Powers, and Defendant Officer
Joseph Young.
Plaintiff alleged a variety of claims, all of
which were either voluntarily dismissed or dismissed by the
Court, see Order [Dkt. 25], but for Plaintiff’s claims against
Defendant for excessive use of force under the Fourth Amendment
and battery under Virginia law.
Defendant now moves for summary judgment, contending
that he is entitled to qualified immunity with respect to the
claims that remain.1
1
Defendant separately argues that he is entitled to
qualified immunity and that his actions did not violate the
Fourth Amendment. But the former argument necessarily
encompasses the latter, as whether Defendant is entitled to
qualified immunity rests in part upon whether he violated
Plaintiff’s constitutional rights. See Raub v. Campbell, 785
F.3d 876, 881 (4th Cir.), cert. denied, 136 S. Ct. 503 (2015).
The Court therefore addresses these arguments together.
4
II. Legal Standard
“Summary judgment is appropriate only if taking the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party, ‘no material facts
are disputed and the moving party is entitled to judgment as a
matter of law.’”
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (quoting Ausherman v. Bank of Am. Corp., 352 F.3d 896, 899
(4th Cir. 2003)).
An unresolved issue of fact precludes summary
judgment only if it is both “genuine” and “material.”
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Anderson
A factual
dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party” on that
issue.
Id. at 248.
It is material if it “might affect the
outcome of the suit under the governing law.”
Id.
“In the end,
the question posed by a summary judgment motion is whether the
evidence ‘is so one-sided that one party must prevail as a
matter of law.’”
Lee v. Bevington, 647 F. App’x 275, 277 (4th
Cir. 2016) (quoting Anderson, 477 U.S. at 252).
III. Analysis
In evaluating whether Defendant is entitled to
qualified immunity, the Court must determine “(1) whether the
plaintiff has established the violation of a constitutional
right, and (2) whether that right was clearly established at the
time of the alleged violation.”
Raub v. Campbell, 785 F.3d 876,
5
881 (4th Cir. 2015), cert. denied, 136 S. Ct. 503 (2015).
The
order in which to decide these issues is left to the Court’s
discretion.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A. Defendant’s Initial Decision to Deploy His Taser
Plaintiff contends that Defendant is not entitled to
qualified immunity with respect to his initial decision to
deploy his Taser because Defendant could not have reasonably
believed Plaintiff to be a threat warranting the use of such
force.
See Opp. [Dkt. 44] at 6-10.
Plaintiff does not dispute,
however, that he was fleeing, and thus resisting a lawful
seizure, when Defendant deployed his Taser.
Defendant is
therefore entitled to qualified immunity with respect to his
initial deployment of his Taser pursuant to Estate of Armstrong
ex rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 907
(4th Cir. 2016), cert. denied, __ S. Ct. __, 2016 WL 2839881
(U.S. Oct. 3, 2016).
In Armstrong, police officers were called to
involuntarily commit a mentally ill man.
See id. at 896.
When
the officers approached, the man wrapped his arms and legs
around the base of a stop sign and refused to let go.
896–97.
Id. at
One of the officers then used a Taser to shock the man
five times in an effort to dislodge him.
died shortly thereafter.
Id. at 898.
6
Id. at 897.
The man
In a lawsuit brought by the man’s estate, the Fourth
Circuit held that the police officer’s actions constituted
excessive use of force under the Fourth Amendment.
899.
See id. at
The Court nonetheless concluded that the officer was
entitled to qualified immunity because the “right not to be
subjected to tasing while offering stationary and non-violent
resistance to a lawful seizure” was not then clearly
established.
Id. at 907.
Earlier cases had held that police
officers may not use a Taser on an individual not actively
resisting arrest, but the law was “not so settled . . . that
‘every reasonable official would have understood’” what was
constitutionally required when an individual offered nonviolent
resistance.
Id. at 908 (quoting Mullenix v. Luna, 136 S. Ct.
305, 308 (2015)).
The Court extrapolates from this that any right not to
be tased while offering mobile, as opposed to stationary, nonviolent resistance to a lawful seizure was not clearly
established at the time of the events giving rise to this suit.
As in Armstrong, Defendant deployed his Taser while Plaintiff
was actively resisting detention and after issuing several
verbal warnings.
See id.
These are precisely the
characteristics of the situation in Armstrong that left the
applicable law “not . . . settled.”
7
Id.
While viewing the facts in the light most favorable to
Plaintiff, Defendant may have been “treading close to the
constitutional line,” id., the Court must conclude that the line
was not clearly drawn before Armstrong.
Accordingly, the Court
finds that Defendant is entitled to qualified immunity with
respect to his decision to deploy his Taser to prevent Plaintiff
from fleeing after repeated warnings.
B. Defendant’s Continuous Use of the Taser for 42
Seconds
That Defendant is entitled to qualified immunity with
respect to his initial decision to deploy his Taser does not
resolve Defendant’s Motion.
“[F]orce justified at the beginning
of an encounter is not justified even seconds later if the
justification for the initial force has been eliminated.”
Waterman v. Batton, 393 F.3d 471, 481 (4th Cir. 2005).
The
Court must therefore determine whether Defendant’s use of his
Taser remained justified throughout the 42 seconds he maintained
the Taser’s electrical current.
The Court finds that genuine issues of material fact
preclude summary judgment on this issue.
Specifically, the
record fails to conclusively establish what effect the Taser had
on Plaintiff and whether, when, and to what extent Plaintiff
resisted detention during the 42 seconds Defendant maintained
the Taser’s electrical current.
Moreover, these disputed issues
8
of fact bear heavily on Defendant’s entitlement to qualified
immunity.
Accordingly, Defendant’s Motion must be denied with
respect to his continuous use of a Taser on Plaintiff for 42
seconds.
See Anderson, 477 U.S. at 248.
1. Whether the Factual Dispute is Genuine
Defendant claims that, because one of the Taser’s
probes failed to properly attach, the Taser caused Plaintiff
merely “a tingling sensation,” Rep. [Dkt. 45] at 4, and
Plaintiff “actively resist[ed] arrest while being handcuffed.”
SOF ¶ 19.
Plaintiff, on the other hand, claims that the Taser
subdued him almost immediately, and that his movements after the
Taser’s probes struck were an involuntary response to the
electrical current.
See Opp. [Dkt. 44] at 2-3, 10.
In view of the record, the Court has little difficulty
concluding that this dispute presents a triable issue of fact.
Of particular importance to the Court’s holding is a video of
the incident shot by a bystander and admitted into evidence.
See Mot. to Dismiss Exh. 60.
In it, Plaintiff collapses as soon
as he is struck by the Taser’s probes.
He proceeds to cry out,
and at one point pleads with Defendant to stop.
Given this
evidence, Defendant’s claim that the Taser caused Plaintiff no
more than “a tingling sensation” strains credulity.
The video
is sufficient that “a reasonable jury” viewing it could find
that the Taser subdued Plaintiff almost immediately.
9
Anderson,
477 U.S. at 248; see also Scott v. Harris, 550 U.S. 372, 381
(2007) (noting the high probative value of video in evaluating a
disputed incident on a motion for summary judgment).
Moreover, much of the evidence upon which Defendant
relies is at best ambiguous as to whether Plaintiff continued to
resist detention after Defendant deployed his Taser.
For
example, in one passage from Defendant’s deposition testimony
cited in his statement of facts, Defendant testified that when
he depressed the Taser’s trigger
[Plaintiff] went down, was kind of still like moving
around, is best I can describe it. Moving around. He
yelled something.
Young Tr. [Dkt. 42-45] at 72.
This testimony is, on its face, more consistent with
Plaintiff’s account of events than Defendant’s.
Defendant
suggests that the Taser caused Plaintiff to collapse, indicating
that it was at least partially effective in subduing Plaintiff.
Moreover, Defendant states that Plaintiff simply “mov[ed]
around” after being struck by the Taser, finding no better way
to describe Plaintiff’s actions.
That Plaintiff’s movements did
not appear directed toward any identifiable purpose bolsters
Plaintiff’s claim that they were involuntary.
Similarly, Defendant’s Motion cites heavily to a
portion of Defendant’s deposition testimony in which he claims
Plaintiff failed to comply with instructions after being struck
10
by the Taser.
Young Tr. [Dkt. 42-45] at 100.
But Defendant
continued to depress his Taser’s trigger while issuing those
instructions.
Plaintiff contends that he was incapable of
voluntary movement while Defendant maintained the Taser’s
electrical current.
See Opp. [Dkt. 44] at 2-3.
Plaintiff’s
failure to follow Defendant’s instructions could have resulted
from incapacity as easily as from conscious refusal.
The testimony of Robert Schmidt, upon which Defendant
also relies, is likewise ambiguous as to Plaintiff’s resistance
after being struck by the Taser.
Mr. Schmidt testified that
Defendant encountered difficulty handcuffing Plaintiff after
deploying his Taser “either due to [Defendant] was getting
tangled in the [T]aser wires . . . [or] due to [Plaintiff]’s
movements.”
R. Schmidt Tr. [Dkt. 42-43] at 36.
This does not
indicate that Plaintiff intentionally thwarted Defendant’s
efforts to restrain him.
Indeed, it is unclear from Mr.
Schmidt’s testimony that Plaintiff’s movements — as opposed to
the Taser’s wires — presented any impediment at all.
Moreover, Defendant appears to concede that the Taser
had at least some incapacitating effect on Plaintiff.
In
attempting to justify the 42-second length of the Taser
discharge, Defendant argues that Plaintiff might have “continued
in his attempt to flee, or even become more aggressive and
potentially harm [Defendant] and nearby bystanders if
11
[Defendant] had released the trigger mechanism of the Taser.”
Mem. in Supp. of Mot. for Summ. J. [Dkt. 42] at 15.
If, as
Defendant claims, the Taser caused Plaintiff no more than a “a
tingling sensation,” Rep. [Dkt. 45] at 4, it is not clear how
continuously depressing the Taser’s trigger prevented Defendant
from fleeing or harming bystanders.
In light of the above, a reasonable jury could find
that the Taser was largely effective, and that Defendant
maintained its electrical current long after Plaintiff ceased
resisting.
2. Whether the Disputed Facts are Material
Having established that the factual dispute is
genuine, the Court now turns to whether it is material.
In
light of the Fourth Circuit’s opinion in Meyers v. Baltimore
Cty., Md., 713 F.3d 723 (4th Cir. 2013), the Court easily
concludes that it is.
In Meyers, police responded to a report of a violent
altercation and found the suspect wielding a baseball bat.
id. at 727-28.
See
When the suspect refused to drop the bat, one of
the officers deployed his Taser in probe mode.2
2
See id. at 728.
A Taser may function in either “probe” mode, in which
two probes are fired at a distance and the target, if struck,
suffers paralysis, or in “stun” mode, in which the Taser’s
electrodes are applied directly and “‘the [t]aser does not cause
muscular disruption or incapacitation, but rather functions only
as a ‘pain compliance’ tool.’” Meyers, 713 F.3d at 735 n.3
12
The officer administered three shocks before the suspect stopped
advancing and fell to the ground.
Id.
After discharging his
Taser once more in probe mode, the officer switched to stun mode
and shocked the suspect several additional times.
died shortly thereafter.
Id.
The man
Id. at 729.
In a lawsuit brought by the man’s family, the Fourth
Circuit held that the officer was entitled to qualified immunity
with respect to his initial use of the Taser to subdue the
suspect, but not as to his continued use of the Taser after the
suspect had fallen to the ground.
Id. at 735.
Once that
happened, the suspect “did not pose a threat to the officers’
safety and was not actively resisting arrest.”
Id.
The
continued use of a Taser beyond that point violated the man’s
clearly established Fourth Amendment rights.
See id.
Viewing the disputed issues of fact in the light most
favorable to the nonmoving party, Plaintiff likewise “did not
pose a threat to [Defendant’s] safety and was not actively
resisting arrest,” id. at 735, during the great majority of the
42 seconds that Defendant maintained his Taser’s electrical
current.
Rather, Plaintiff was lying prone, convulsing, and no
longer making any effort to flee.
In light of Meyers, should a
jury accept Plaintiff’s account of events, Defendant could
(quoting Meyers v. Baltimore Cty., Md., 814 F. Supp. 2d 552, 555
n.3 (D. Md. 2011)).
13
easily be found to have violated Plaintiff’s clearly established
Fourth Amendment rights.
Accordingly, the disputed factual
issue is material, as it “might affect the outcome of the suit
under the governing law.”
Anderson, 477 U.S. at 248.3
Defendant argues that Meyers is distinguishable
because Plaintiff was not fully “incapacitated” or “subdued.”
See Rep. [Dkt. 45] at 9.
But as discussed above, whether and to
what extent Plaintiff was “incapacitated” or “subdued” is, based
upon this record, a question for the jury.
Moreover, whether
Plaintiff was fully “incapacitated” or “subdued” is relevant to,
but not dispositive of, the ultimate issue of whether Plaintiff
“pose[d] a threat to [Defendant’s] safety” or “was . . .
actively resisting arrest” during the 42 seconds Defendant
maintained his Taser’s electrical current.
Meyers, 713 F.3d at
735.
A closer examination of the specific circumstances of
this case confirms that the disputed facts are material.
When
evaluating an excessive force claim, Courts engage in “‘a
careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
3
The Court notes that in Meyers, one of the Taser
discharges was only partially effective. See 713 F.3d at 728
n.4. The Fourth Circuit did not differentiate between the
effective Taser discharges and the “bad tase” in holding that
the use of a Taser violated the subject’s Fourth Amendment
rights.
14
countervailing governmental interests at stake.’”
Smith v. Ray,
781 F.3d 95, 101 (4th Cir. 2015) (quoting Graham v. Connor, 490
U.S. 386, 396 (U.S. 1989)).
In conducting this analysis, three
considerations are particularly salient: the severity of the
crime allegedly committed, the threat posed to the officer and
others, and any resistance offered.
Armstrong, 810 F.3d at 899.
As to the first consideration, Defendant was unsure
whether Plaintiff had committed any crime at the time of the
incident.
Defendant “ma[de] it clear” that Plaintiff was not
under arrest at the outset because Defendant “d[idn’t] know what
[he] [had] at that point.”
Young Tr. [Dkt. 42-45] at 67.
Rather, Defendant detained Plaintiff based primarily on his
aggressive demeanor, and “[d]idn’t [then] know” the extent of
Plaintiff’s involvement in the nearby accident.
Id.
While
Defendant argues that Plaintiff was later convicted of serious
crimes, the Fourth Amendment concerns itself with “the
perspective of a reasonable officer on the scene, including what
the officer knew at the time, not with the 20/20 vision of
hindsight.”
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473
(2015) (emphasis added).
As to the threat Plaintiff posed to Defendant and
others, Defendant observed Plaintiff acting erratically and
aggressively.
See Young Tr. [Dkt. 42-45] at 65-67.
But
Plaintiff is not alleged to have acted violently, either before
15
or after Defendant arrived at the scene.
Moreover, viewing the
disputed facts in the light most favorable to the nonmoving
party, Plaintiff posed no threat during the great majority of
the 42 seconds Defendant maintained his Taser’s current.
Finally, again viewing the disputed facts in the light
most favorable to Plaintiff, Plaintiff’s resistance was limited
to initial disobedience and a brief attempt at flight.
These
efforts ended when Plaintiff was brought to the ground by
Defendant’s Taser.
Plaintiff offered no further resistance
during the 42 seconds that Defendant maintained his Taser’s
electrical current.
Rather, he simply convulsed involuntarily.
Turning to “‘the proportionality of the force in light
of’” the above, Smith v. Ray, 781 F.3d 95, 101 (4th Cir. 2015)
(quoting Waterman, 393 F.3d at 481), the Court notes that a
Taser is a “weapon . . . designed to ‘caus[e] . . . excruciating
pain,’ and application can burn a subject’s flesh.” Armstrong,
810 F.3d at 902 (citations omitted).
constitutes a “serious use of force.”
Deploying a Taser at all
Id.
To use a Taser on an
individual continuously for 42 seconds, assuming the Taser to be
at least partially effective, is a use of force that may fairly
be characterized as extreme.
See, e.g., Meyers, 713 F.3d at 728
n.5, 734 (holding that the use of a Taser for 35 seconds,
leading to the subject’s death, constituted excessive force);
Orem v. Rephann, 523 F.3d 442, 447–48 (4th Cir. 2008) (rejecting
16
the argument that applying a Taser for 1.5 seconds results in
only de minimis injury); cf. Fontenot v. Taser Int’l, Inc., 736
F.3d 318, 323 (4th Cir. 2013) (attributing an individual’s death
to improper application of a Taser for 42 seconds); Bachtel v.
TASER Int’l, Inc., 747 F.3d 965, 967 (8th Cir. 2014)
(attributing an individual’s death to improper application of a
Taser for 31 seconds).
The City of Fredericksburg Police Department —
Defendant’s employer — recognizes as much.
It has adopted a
policy limiting the use of a Taser on a given subject to 15
seconds:
Do not have more than three uses of the Taser
against a person during a single event. (If this
occurs the subject shall be taken to the hospital
for a medical evaluation.)
Opp. Exh. 9 [Dkt. 44-4] at 7 (bold, italics, and underline
in original).4
The Court notes that Defendant’s testimony
indicates he did not intend to discharge his Taser for more
than 15 seconds, but simply lost track of time.
See Young
Tr. [Dkt. 42-45] at 73 (“I know – after seeing the video
once, when they showed it to me, I know it’s 42 seconds.
At the time, for whatever reason, in my mind I thought it
was ten to 15 seconds.”).
It is not clear that, had
4
At the hearing held on this matter, Plaintiff’s
counsel explained — and Defendant’s counsel did not contest —
that the Taser “uses” referenced in the policy are five-second
discharges.
17
Defendant known how long he was depressing his Taser’s
trigger, he would have continued to do so for 42 seconds.
See Opp. Exh. 6 [Dkt. 44-3] (“So I’m thinkin’ [sic] at that
point, ten to 15 seconds, in my mind — I don’t know what
was goin’ [sic] through his mind — um, that what — that’s
how I proceeded. Then I find out that it’s 42 seconds, um,
you know, which I — I don’t — I don’t, like, I mean
. . .”).
One might infer from this that Defendant likewise
understood the use of a Taser for 42 seconds to constitute
an unusually high degree of force.
*
*
*
In light of the above, Defendant is likely not
entitled to qualified immunity should a jury accept
Plaintiff’s account of events.
Conversely, if a jury were
to accept Defendant’s version of the facts, Defendant is
likely entitled to qualified immunity for the reasons
discussed above in Section III(A).
The Court is unable
rule on the issue until these ambiguities are resolved.
Defendant’s Motion for Summary Judgment must
therefore be denied as to his continuous use of a Taser on
Plaintiff for 42 seconds.
The Court will “submit [the]
factual questions to the jury and reserve for itself the
legal question of whether . . . [D]efendant is entitled to
qualified immunity on the facts found by the jury.”
18
Yates
v. Terry, 817 F.3d 877, 882 n.2 (4th Cir. 2016) (quoting
Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005)).
The Court notes that the denial of qualified immunity on
this basis is not immediately appealable, see id. at 882,
and so the parties should prepare for trial.
C. Plaintiff’s State Law Claims
Turning to Defendant’s argument regarding Plaintiff’s
claim of battery under Virginia law, the Court notes that it is
relegated to two sentences at the end of Defendant’s brief.
Defendant contends first that he is entitled to
“sovereign immunity” as to Plaintiff’s battery claim “because he
acted in good faith and with reasonable belief in the validity
of his actions.”
at 19.
Mem. in Supp. of Mot. for Summ. J. [Dkt. 42]
In support of this proposition, Defendant cites two
cases decided by the Virginia Supreme Court that make no mention
of immunity at all.
Rather, both hold simply that a police
officer is not liable for the tort of false imprisonment when an
arrest results from a reasonable mistake of law or fact.
See
Yeatts v. Minton, 211 Va. 402 (1970); DeChene v. Smallwood, 226
Va. 475, 480 (1984).
Defendant points to no such mistake in
this instance or what conduct that mistake would excuse.
Defendant next argues that the “use of reasonable
force during the course of a lawful arrest by a police officer
does not constitute the crime of battery under Virginia law.”
19
Mem. in Supp. of Mot. for Summ. J. [Dkt. 42] at 19.
Defendant
supports this with a citation to a case holding that “[a]
touching” that is “justified or excused . . . is not unlawful
and therefore not a battery” under Virginia law.
Gnadt v.
Commonwealth of Virginia, 27 Va. App. 148, 151 (1998).
Given
the issues discussed above, whether the “touching” in this
instance was “justified or excused” will turn on facts to be
determined by a jury.
Accordingly, the Court will deny
Defendant’s Motion as to Plaintiff’s common law battery claim.
IV. Conclusion
For the foregoing reasons, Defendant’s Motion will be
granted in part and denied in part.
Defendant’s Motion will be
granted as to Plaintiff’s Fourth Amendment claim insofar as it
relates to Defendant’s initial decision to deploy his Taser.
Defendant’s Motion will be denied in all other respects, and the
parties will be required to confer with the Court as to a trial
date.
An appropriate order will issue.
October 6, 2016
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
20
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