Simpson v. Commonwealth of Virginia et al
Filing
27
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 07/21/16. (kgra, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
JO ANN SIMPSON, individually
and as personal representative
of the estate of JOSHUA
SIMPSON,
Plaintiff,
v.
COMMONWEALTH OF VIRGINIA, et
al.,
Defendants.
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M E M O R A N D U M
1:16cv162 (JCC/TCB)
O P I N I O N
This matter is before the Court on Defendants’ Motion
to Dismiss.
[Dkt. 3.]
For the following reasons, the Court
will grant Defendants’ motion to dismiss and dismiss Plaintiff’s
Complaint [Dkt. 1-1].
I. Background
At the motion to dismiss stage, the Court must read
the complaint as a whole, construe the complaint in the light
most favorable to the plaintiff, and accept the facts alleged in
the complaint as true.
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678
The facts below are taken from Plaintiff’s Complaint
and facts available as a matter of public record.
See Philips
v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiff Jo Ann Simpson (“Plaintiff” or “Mrs.
1
Simpson”) brings this suit as the personal representative and
administrator of the estate of the deceased Joshua Michael
Simpson (“Decedent”).
Decedent was a mentally ill individual
living in Warrenton, Virginia in 2014.
(Compl., ¶¶ 4,6.)
Plaintiff brings claims against Defendant the Commonwealth of
Virginia (“the Commonwealth”), Defendant Steven Flaherty in his
official capacity as the Superintendent of the Virginia
Department of State Police (“Superintendent Flaherty”), and
Defendants John Does (“Doe Defendants”) who are currently
unidentified police officers employed by the Virginia Department
of State Police (“VSP”).
(Id. at ¶¶ 7-9.)
Collectively, the
Court will refer to the Commonwealth, Superintendent Flaherty,
and the Doe Defendants as “Defendants”.
Decedent lived in Warrenton, Virginia, and suffered
from mental illness leading him to sometimes suffer paranoia and
delusion.
(Id. at ¶ 10.)
Decedent suffered from a recurring
delusion that he was the “King of Israel.”
(Id.)
In or around
2013, Decedent was acquitted of a crime by reason of insanity.
(Id. at ¶ 11.)
At that time, the Warrenton Town Police seized
Decedent’s firearms after Decedent was involuntarily committed
to a mental facility pursuant to a temporary detention order.
(Id.)
In or around 2014, Decedent’s landlord retained a
lawyer to initiate eviction proceedings against Decedent.
2
(Id.
at ¶ 12.)
In response, Decedent delivered a strange letter to
the landlord’s attorney.
(Id.)
The letter ordered the landlord
to turn the property over to Decedent as “the King of Israel.”
(Id.)
The letter also purported to find the landlord guilty of
various crimes.
(Id.)
The attorney contacted the Fauquier
County Police Department (“FCPD”) as a result of this letter.
(Id.)
On October 4, 2014, the owner of “The Bridge,” a
restaurant in Warrenton, contacted FCPD after receiving a
similar strange letter from Decedent.
(Id. at ¶ 13.)
In that
letter, Decedent again claimed to be the “King of Israel” and
claimed that the owner of The Bridge had been accused of various
crimes and convicted in absentia.
(Id.)
ownership of The Bridge and $20,000.
This letter demanded
(Id.)
On the morning of October 6, 2014, FCPD opened a
criminal investigation into Decedent’s letter to the owner of
The Bridge.
(Id. at ¶ 14.)
FCPD were advised by an Assistant
Commonwealth’s Attorney at that time that Decedent had not yet
made any direct threats, and thus no crime had yet been
committed.
(Id. at ¶ 14.)
Later that same morning, Detective
Lillard of the FCPD (“Lillard”) was instructed to obtain, and
did obtain, a warrant for an Emergency Custody Order (“ECO”)
requiring Decedent to undergo a mental evaluation.
15.)
(Id. at ¶
At or around 1:30 p.m. of October 6, 2014, Detective Zeets
3
of the FCPD (“Zeets”) and Lillard attempted to serve the ECO on
Decedent as Decedent was walking towards his residence.
(Id. at
¶ 16.)
Decedent refused to co-operate with Zeets and Lillard
when he noticed their police vehicle, and fled into his
residence.
(Id.)
Zeets attempted negotiations with Decedent
through an open second-story window.
(Id. at ¶ 17.)
During
these negotiations, Decedent threw a receipt documenting the
purchase of a shotgun to Zeets.
(Id.)
Zeets was unable to
persuade Decedent to voluntarily comply with the ECO, but was
successful in obtaining Decedent’s cell phone number.
18.)
(Id. at ¶
Zeets continued intermittent communication with Decedent
through his cell phone.
(Id.)
At or around 5:30 p.m. of October 6, 2014, VSP, FCPD,
and the Warrenton Police Department (“WPD”) held a joint
briefing on the situation involving Decedent.
(Id. at ¶ 19.)
FCPD and WPD updated VSP and the Doe Defendants on the
circumstances of the case, including Decedent’s prior record and
his history of mental illness.
(Id.)
At some point during
Decedent’s negotiations with the police, Decedent communicated
to the police that he had built a model of The Bridge restaurant
and believed that God had instructed him to place the model on
the sidewalk in front of his house.
(Id. at ¶ 21.)
Decedent
explained that he believed that if the model levitated back into
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his house at 9:00 a.m. it was God’s will that Decedent be
granted the demands in his letter to The Bridge’s owner.
(Id.)
Decedent claimed that he would give up voluntarily if, at 9:00
a.m. on October 7, 2014, the model of the restaurant did not
levitate back into his apartment, per the instruction he
believed he had received from the Almighty.
(Id.)
At some point after 5:30 p.m. on October 6, 2014, VSP
obtained a felony arrest warrant against Decedent for possession
of a firearm by a person acquitted by reason of insanity.
at ¶ 22.)
(Id.
At approximately 9:45 p.m. of October 6, 2014,
Decedent walked onto his porch to give Zeets letters regarding
God.
(Id. at ¶ 23.)
When Decedent walked onto his porch,
unidentified police officers unsuccessfully attempted to
incapacitate Decedent with a stun gun, causing Decedent to run
back into the residence.
(Id.)
Once he was inside his house,
Decedent informed police that no further progress would be made
until morning.
(Id.)
At or around 12:00 a.m. on October 7, 2014, one or
more heavily armed VSP Tactical Operations Teams comprised of
Doe Defendant officers arrived on the scene with two armored
personnel vehicles.
(Id. at ¶ 24.)
The Doe Defendants then
deployed flashbangs to distract Decedent while breaching
Decedent’s window with a “throw phone.”
(Id.)
Decedent
responded to the use of flashbangs and the “throw phone” by
5
firing shotgun shots from his window.
(Id.)
Beginning at or
around 1:00 a.m. on October 7, 2014, the Doe Defendants deployed
tear gas canisters into Decedent’s house through the windows.
(Id. at ¶ 25.)
The Doe Defendants repeated this act several
times over that night.
(Id.)
Each time Defendants deployed
tear gas into his house, Decedent responded by firing his
shotgun out of his window.
(Id.)
As many as 60 gas canisters
were fired into Decedent’s house overnight.
(Id. at ¶ 26.)
At approximately 6:45 a.m. the Doe Defendants deployed
their final gas canister.
(Id. at ¶
27.)
In response to the
deployment of this gas canister, Decedent emerged from the front
door of his house firing his shotgun.
(Id.)
As Decedent was
exiting his house and firing his shotgun, several Doe Defendant
police snipers took successive shots at Decedent, hitting him
and leaving him lying on his back in the doorway.
28.)
(Id. at ¶
As Decedent lay in the doorway, his shotgun was positioned
between his legs with the barrel resting on the floor and the
butt near his chest.
(Id.)
Another Doe Defendant sniper then
fired a shot at Decedent’s shotgun, rendering it inoperable.
(Id. at ¶ 29.)
Unsure as to whether Decedent was fully
incapacitated or still posed an active threat, another Doe
Defendant fired a beanbag round, striking Decedent in the chest.
(Id. at ¶ 30.)
After the beanbag struck Decedent, he threw it
back towards police and requested that they “shoot [him] in the
6
head.”
(Id.)
At this point, FCPD brought in a K9 unit to attempt
physical apprehension of Decedent.
(Id. at ¶ 31.)
At this
point, multiple, conflicting orders were given regarding the K9
unit, with “multiple [unidentified] persons simultaneously
issuing orders to both release, and not to release, the dog.”
(Id.)
Ultimately, FCPD deployed the K9 dog and received
“negative results,” as Decedent did not react to bites from the
dog.
(Id. at ¶ 32.)
Decedent was then taken into custody and
was transported to INOVA Fairfax Hospital, where he died from
his gunshot wounds on October 10, 2014.
(Id. at ¶ 33.)
On December 3, 2014, Plaintiff was certified as the
personal representative of Decedent’s estate by the Clerk of the
Circuit Court of Fauquier County.
(Pl.’s Mem. in Opp’n, Ex. B.
[Dkt. 18-1].) Plaintiff filed multiple FOIA requests regarding
the events surrounding Decedent’s death, and has received
responses from the Town of Warrenton, Fauquier County, and the
Fauquier County Commonwealth’s Attorney.
(Compl., ¶ 34.)
Plaintiff had not, at the time of this motion, received a FOIA
response from the VSP.
(Id.)
Plaintiff filed this suit in the
Circuit Court for Fauquier County on December 21, 2015.
It was
removed to this Court by Defendants on February 18, 2016.
(Notice of Removal [Dkt. 1].)
Defendants filed this Motion to
Dismiss on February 25, 2016.
The matter was fully briefed, and
7
argued on April 28, 2016.
The Court requested supplemental
briefing on the issue of Eleventh Amendment immunity at that
time.
That briefing was received on May 5, 2016, and May 9,
2016.
The motion is now fully briefed and ripe for decision.
II. Legal Standard
Defendants move to dismiss under Rule 12(b)(1) for
lack of jurisdiction and under Rule 12(b)(6) for failure to
state a claim.
“[I]n passing on a motion to dismiss, whether on
the ground of lack of jurisdiction over the subject matter or
for failure to state a cause of action, the allegations of the
complaint should be construed favorably to the pleader.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
A motion
pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure challenges the Court’s subject matter jurisdiction
over the pending action.
Fed. R. Civ. P. 12(b)(1).
Defendants
may attack subject matter jurisdiction in one of two ways.
As
relevant here, the assertion of immunity is properly addressed
by the Court on a motion filed pursuant to Rule 12(b)(1).
Smith
v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 205 (4th Cir.
2001) (citing Williams v. United States, 50 F.3d 299, 304 (4th
Cir. 1995)).
In this instance, all facts alleged in the
complaint are presumed to be true.
Virginia v. United States,
926 F. Supp. 537, 540 (E.D. Va. 1995).
8
“Federal courts are
courts of limited jurisdiction, and we presume that a cause lies
outside this limited jurisdiction.
The burden of establishing
the contrary rests upon the party asserting jurisdiction.”
Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley,
Inc., 683 F.3d 577, 583-84 (4th Cir. 2012) (citation omitted).
Defendants also challenge the sufficiency of the
complaint under Rule 12(b)(6).
“The purpose of a Rule 12(b)(6)
motion is to test the sufficiency of a complaint; importantly,
[a Rule 12(b)(6) motion] does not resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses.”
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999)(internal citation and quotation marks omitted).
While the court must accept well-pleaded allegations as true
when ruling on a Rule 12(b)(6) motion, the court need not accept
as true legal conclusions disguised as factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009).
Therefore, a
pleading that offers only a “formulaic recitation of the
elements of a cause of action will not do.”
Iqbal, 556 U.S. at
678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Nor
will a complaint that tenders mere “naked assertion[s]” devoid
of “further factual enhancement.”
Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 557.
In the instance where sufficient facts are alleged in
the complaint to rule on an affirmative defense, such as the
9
statute of limitations, the defense may be reached by a motion
to dismiss filed under Rule 12(b)(6).
This principle only
applies, however, if all facts necessary to the affirmative
defense “clearly appear[ ] on the face of the complaint.”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007)
(emphasis in original); see also 5B Wright & Miller, Federal
Practice & Procedure § 1357(3d ed. 2004).
III. Analysis
Plaintiff styles her Complaint as including Six
Counts: (I) Wrongful Death; (II) Negligence; (III) Gross
Negligence; (IV) Liability of the Commonwealth; (V) Violation of
the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.
(“ADA”); and (VI) Violation of the Decedent’s Fourth and
Fourteenth Amendment Rights under 42 U.S.C. § 1983 (the
“Constitutional Claims”).1
Because Count I, Wrongful Death,
merely establishes Plaintiff’s standing to bring the suit for
injuries suffered by Decedent and Count IV, Liability of the
Commonwealth, merely lays out Plaintiff’s argument for holding
the Commonwealth liable on the other counts, there are in fact
1
Plaintiff’s Complaint actually refers to the Constitutional
Claims as a second Count IV. (Compl. at 13.) For ease of
reference, the Court will identify them as Count VI.
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only four active claims contained in Plaintiff’s complaint.2
The
Court will begin its analysis with a discussion on the basis of
the Court’s jurisdiction over Plaintiff’s claims, and will then
address the Defendants named by Plaintiff and the defenses
raised by each of them in turn, beginning with the Commonwealth,
proceeding through Superintendent Flaherty, and ending with the
Doe Defendants.
A.
Jurisdiction
Plaintiff originally filed this case in the Circuit
Court for Fauquier County.
It was removed to this Court by
Defendants on February 18, 2016.
(Notice of Removal [Dkt. 1].)
2
Actions for Wrongful Death are authorized in the
Commonwealth by Va. Code Ann. § 8.01-50. It provides that
Whenever the death of a person shall be
caused by the wrongful act, neglect, or
default of any person or corporation, or of
any ship or vessel, and the act, neglect, or
default is such as would, if death had not
ensued, have entitled the party injured to
maintain an action . . . then, and in ever
such case, the person who, or corporation or
ship or vessel which, would have been liable
if death had not ensued, shall be liable to
an action for damages.
Va. Code Ann. § 8.01-50. “Virginia’s wrongful death statute
does not create a new cause of action, but only a right of
action in a personal representative to enforce the decedent’s
claim for any personal injury that caused death.” Miller v.
United States, 932 F.2d 301, 303 (4th Cir. 1991)(citing Va. Code
§ 8.01-50.) Accordingly, Counts I, II, and III are better
understood by collapsing them into two Counts: Count II, for
Wrongful Death by Negligence; and Count III, for Wrongful Death
by Gross Negligence. The Court interprets Counts II and III of
Plaintiff’s Complaint as such.
11
As the basis for their removal, Defendants invoked, inter alia¸
28 U.S.C. §§ 1331, 1441, 1367(a).
Section 1441 provides that
except as otherwise provided, “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant or
the defendants, to the district of the United States for the
district and division embracing the place where such action is
pending.”
Section 1331 provides that “the district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”
Finally, § 1367(a) provides that, generally, “in any civil
action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction of all
other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case
or controversy.”
28 U.S.C. § 1367(a).
This Court has original jurisdiction over Plaintiff’s
claims brought under 42 U.S.C. § 1983 and the ADA pursuant to 28
U.S.C. 1331.
It therefore has supplemental jurisdiction over
Plaintiff’s state law wrongful death claims pursuant to 28
U.S.C. 1367(a).
Because this Court has original or supplemental
jurisdiction over all of Plaintiff’s claims, Defendants’ removal
was proper, and the case is properly before this Court.
12
This Court’s jurisdiction over Plaintiff’s state law
claims is dependent upon the existence of Plaintiff’s claims
arising in federal law.
See 28 U.S.C. § 1367(a).
Generally,
dismissal of Plaintiff’s federal law claims would result in a
remand of Plaintiff’s state law claims to state court for
resolution.
O’Bar v. Pinion, 953 F.2d 74, 85 (4th Cir. 1991).
However, “[i]n a § 1983 action in federal court, where all
federal claims are disposed of in favor of the defendants,
leaving only state claims that have been briefed by both parties
and are ‘patently 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)(quoting O’Bar, 953 F.2d at 85).
As
that situation presents itself in this case, the Court reaches
both Plaintiff’s claims arising under state law and her claims
arising under federal law in its analysis below.
The Court will now address the merits of Defendants’
Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6).
B. Commonwealth of Virginia
1.
Standing
The Commonwealth first claims that Plaintiff lacks
standing to bring her wrongful death action as personal
representative of decedent’s estate.
Defendant additionally
claims that Plaintiff lacks standing to bring any of her claims
13
against the Commonwealth as Plaintiff’s initial notice of this
suit contained representations that Decedent had 2 surviving
children who would be the statutory beneficiaries of this
action.
(Def.’s Mem. at 6-7.)
However, Plaintiff has since
introduced a copy of the Fauquier County Circuit Court’s
certification that Plaintiff is the personal representative and
administrator of the personal estate of Decedent.
in Opp’n, Ex. B.)
(Pl.’s Mem.
Plaintiff has also clarified that Decedent
did not, in fact, have any children, and her prior
representation to that effect was an error.
9.)
(Pl.’s Mem. at 8-
Plaintiff has clarified that she does have standing to
bring these actions.
2.
Eleventh Amendment Immunity
The Commonwealth asserts Eleventh Amendment immunity
as a jurisdictional defense to Plaintiff’s claims.
The
“ultimate guarantee of the Eleventh Amendment is that nonconsenting states may not be sued by private individuals in
federal court.”
Bd. of Trustees of Univ. Ala. v. Garrett, 31
U.S. 356, 363 (2001); See also Edelman v. Jordan, 415 U.S. 651,
662-63 (1974); Hans v. Louisiana, 134 U.S. 1, 18-21 (1890).
The
Eleventh Amendment is a privilege of the States, and as such,
“[a] State remains free to waive its Eleventh Amendment immunity
from suit in a federal Court.”
Lapides v. Bd. of Regents of
Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).
14
When a State
voluntarily invokes the jurisdiction of the federal courts by
removing a case from its own courts to federal court, it waives
its Eleventh Amendment immunity from suit in federal court.
Id.
at 624.
The Eleventh Amendment immunity from suit in federal
courts “does not define the scope of the States’ sovereign
immunity; it is but one particular exemplification of that
immunity.”
Fed. Mar. Com’n v. S.C. Ports Auth., 535 U.S. 743,
754 (2002).
Even where a state cannot avail itself of the
Eleventh Amendment immunity from suit in federal court, it may
still be able to draw from the residual well of common law
sovereign immunity retained by the States.
Id.;
cf. Lapides,
535 U.S. at 618 (immunity unavailable to the State where it has
both waived its Eleventh Amendment immunity through removal and
waived common law sovereign immunity against suit in its courts
through statute).
By removing this case and voluntarily invoking the
jurisdiction of this Court, Defendants have waived any Eleventh
Amendment immunity they may have possessed.
Removal to this
Court does not affect any residual sovereign immunity retained
by the Commonwealth.
The Court will now proceed to the question
of the Commonwealth’s residual, common law sovereign immunity.
3.
Common Law Sovereign Immunity
The Commonwealth has asserted sovereign immunity
15
defenses to each of Defendant’s state law causes of action,
Counts I through IV.
Plaintiff contends that the Commonwealth
has waived sovereign immunity through the Virginia Tort Claims
Act (“VTCA”).
The VTCA waives sovereign immunity for damages
arising from “personal injury or death caused by the negligent
or wrongful act or omission of any employee while acting within
the scope of his employment under circumstances where the
Commonwealth or transportation district, if a private person,
would be liable to the claimant,” subject to several exceptions.
Va. Code § 8.01-195.3.
Those exceptions include “[a]ny claim
based upon an act or omission of an officer, agent, or employee
of any agency of government in the execution of a lawful order
of any court.”
Id.
The Commonwealth argues that as all of the
actions giving rise to Plaintiff’s cause of action in this case
were taken while attempting to execute a court order, and as
Plaintiff does not challenge the propriety of the ECO, the
subsequent arrest warrant issued for Mr. Simpson, or the search
warrant issued for his house, the Commonwealth retains sovereign
immunity for actions taken by its employees in execution of
those orders.
Plaintiff argues that the lawful order exception
to the waiver of sovereign immunity in the VTCA does not apply
to arrest warrants or search warrants.
The Supreme Court of Virginia has not explicitly
addressed whether arrest warrants or search warrants are court
16
orders for purposes of the lawful court order exception to the
VTCA’s waiver of sovereign immunity.
This Court now finds that
by the plain language of Va. Code § 8.01-195.3(4), the lawful
order exception to the VCTA’s waiver of sovereign immunity
covers actions taken in the execution of a lawful arrest or
search warrant.
The Supreme Court of Virginia has held that the VTCA,
like any statutory waiver of sovereign immunity, stands in
derogation of the common law, and thus “its limited waiver of
immunity must be strictly construed.”
Baumgardner v. Sw. Va.
Mental Health Inst., 442 S.E.2d 400, 402 (Va. 1994).
They have
also found the language of Virginia Code § 8.01-195.3(4) to be
unambiguous and held that it ought to be applied according to
its plain meaning.
Id.
The plain language of Virginia Code §
8.01-195.3(4) does not limit its applicability to only mental
health orders or protective custody orders.
It clearly
contemplates “a lawful order of any court.”
Va. Code § 8.01-
195.3(4).
Black’s Law Dictionary defines an order as “a written
direction or command delivered by a government official,
especially a court or judge.”
(10th ed. 2014).
Order, Black’s Law Dictionary
Black’s defines an arrest warrant as “[a]
warrant issued by a disinterested magistrate after a showing of
probable cause, directing a law-enforcement officer to arrest
and take a person into custody.”
17
Arrest Warrant, Black’s Law
Dictionary (10th ed. 2014).
The arrest warrant issued by the
Commonwealth of Virginia in this case contains language directed
“to any authorized officer,” instructing them that they “are
hereby commanded in the name of the Commonwealth of Virginia
forthwith to arrest and bring the Accused before the Court.”
(Defendant’s Memorandum in Support, Ex. 3 [Dkt. 4-3] (emphasis
added).)
The arrest warrant was signed by a magistrate.
Because arrest warrants in the Commonwealth are issued by a
court and are written “direction[s] or command[s]” to arrest an
individual and bring him before the court, this Court finds that
arrest warrants fall within the plain meaning of Va. Code §
8.01-195.3(4) and its exception to the VTCA’s waiver of
sovereign immunity.
The VTCA’s waiver of sovereign immunity is therefore
inapplicable to this case.
Plaintiff has failed to identify any
other valid waiver of sovereign immunity by the Commonwealth.
Therefore, the Court finds that the Commonwealth retains
sovereign immunity on Plaintiff’s State Law Claims and dismisses
Counts II and III with prejudice as to the Commonwealth.
4.
ADA Claims
Plaintiff alleges that Defendants discriminated
against Decedent due to his mental disability by “approving an
exceedingly aggressive, excessive, and unreasonable use of force
against him” and “failing to train their officers in the
18
appropriate and reasonable police practices under the
circumstances and/or failing to follow such training in this
instance.”
(Compl., ¶ 65.)
Defendants respond that any claim
Plaintiff may have had under the ADA is now time-barred.
Congress did not include a federal statute of
limitations establishing when plaintiffs may assert claims under
the ADA.
“In the event of such an omission, 42 U.S.C. § 1988(a)
provides for the selection of an appropriate common-law statute
of limitations, which is most applicable to the federal action.”
Wolsky v. Med. Coll. of Hampton Roads, 1 F.3d 222, 223 (4th Cir.
1993).
The Supreme Court has interpreted this provision as
requiring the application of the most analogous state-law cause
of action from the state in which the claim is heard.
Id.
(citing Wilson v. Garcia, 471 U.S. 261 (1985)).
While the applicable limitation period is borrowed
from state law, the accrual of a cause of action under the ADA
is a question of federal law.
Guerrero v. Weeks, No. 1:13cv837
(JCC/JFA), 2013 WL 5234248, at *5 (E.D. Va. Sept. 16,
2013)(citing Synergistic Int’l, L.L.C. v. Korman, No. 2:05cv49,
2007 WL 517677, at *9 (E.D. Va. Feb. 8, 2007)).
Causes of
action under federal law accrue when the plaintiff “possesses
sufficient facts about the harm done to him that reasonable
inquiry will reveal his cause of action.”
Nasim v. Warden, Md.
House of Corr., 64 F.3d 951, 955 (4th Cir. 1995)(citing United
19
States v. Kubrick, 444 U.S. 111, 122-24 (1979)).
Once a cause
of action has accrued under federal law, federal courts are
“obligated not only to apply the analogous state statute of
limitations . . . but also to apply the State’s rule for tolling
that statute of limitations.”
Scoggins v. Douglas, 760 F.2d
535, 537 (4th Cir. 1985)).
ADA claims are subject to a one-year statute of
limitations period in Virginia.
See Guerrero, 2013 WL 5234248,
at *5 (citing A Soc’y Without a Name v. Virginia, 655 F.3d 342,
342 (4th Cir. 2011)).
Plaintiff’s argument that she could not
have discovered the injury at issue in the case through diligent
effort until August 30, 2015, is not persuasive.
The shooting
and Decedent’s subsequent death both occurred in October of
2014.
At the very least, Plaintiff must have been aware that
Decedent had been shot and killed by police when she was
appointed administrator of his estate on December 3, 2014.
(See
Pl.’s Mem. in Opp., Ex. B.)
Plaintiff argues that “[b]ecause the state and county
authorities possessed almost all of the relevant information
surrounding the death of her son, Ms. Simpson had no ability to
determine exactly how or why her son died until these
authorities produced their reports.”
23.)
(Pl.’s Mem. in Opp’n at
Plaintiff’s argument misunderstands the nature of inquiry
notice.
Plaintiff’s ADA claim did not accrue when the police
20
released their reports on the shooting or when her inquiries
were answered, but when Plaintiff was “put on notice – e.g., by
the knowledge of the fact of injury and who caused it – to make
reasonable inquiry and that inquiry would reveal the existence
of a colorable claim.”
Nasim, 64 F.3d at 955.
It is apparent
from the face of Plaintiff’s complaint that by December 3, 2014,
at the latest, Plaintiff must have been aware of Decedent’s
death and the police agencies involved.
Plaintiff “should have
known of [her] purported injury at this time.”
a Name, 655 F.3d at 348.
A Soc’y Without
Any claim she had under the ADA
therefore accrued on December 3, 2014.
This action was not
filed until December 21, 2015, outside of the applicable oneyear limitation period.
Because it is clear that Plaintiff’s
ADA claim is time-barred, the Court dismisses Count V of
Plaintiff’s Complaint with prejudice as to all Defendants.
C.
Defendant Flaherty
Plaintiff asserts each count of her Complaint against
Superintendent Flaherty in his official capacity as
Superintendent of the Virginia Department of State Police.
(Compl., ¶¶ 35-69.)
The Court will now address each of
Plaintiff’s claims as asserted against Superintendent Flaherty.
1.
Wrongful Death by Negligence
Count II of Plaintiff’s Complaint asserts a claim for
wrongful death against Superintendent Flaherty under an ordinary
21
negligence theory.
“The elements of an action in negligence are
a legal duty on the part of the defendant, breach of that duty,
and a showing that such breach was the proximate cause of
injury, resulting in damage to the plaintiff.”
Blue Ridge Serv.
Corp. of Va. v. Saxon Shoes, Inc., 271 Va. 206, 624 S.E.2d 55,
62 (2006)(citing Trimyer v. Norfolk Tallow Co., 192 Va. 776, 66
S.E.2d 441, 443 (1951)).
Plaintiff specifically alleges that
Flaherty, in his official capacity, owed a duty to Decedent to
protect his life and wellbeing in the performance of his duties.
Plaintiff alleges that Flaherty violated this duty by
negligently failing to train his officers on how to deescalate
situations involving mentally ill suspects.
Defendants argue that Flaherty is entitled to
sovereign immunity against Plaintiff’s claims for ordinary
negligence.
In Virginia, “high level governmental officials
have generally been accorded absolute immunity” for actions
taken in their official capacity.
Messina v. Burden, 228 Va.
301, 321 S.E.2d 657, 661 (1984).
In Messina, the Supreme Court
of Virginia established a four-part test for determining whether
a state employee is protected from suit by sovereign immunity.
The four Messina factors are: (1) the nature of the function
performed; (2) the extent of the state’s interest and
involvement in the function; (3) the degree of control exercised
by the state over the employee; and (4) whether the act
22
complained of involved the use of judgment and discretion.
Messina, 321 S.E.2d at 663.
The Supreme Court of Virginia explained in Messina
that this four-part test did not represent a break with
precedent, but was developed by “distilling general principles
from [its] prior decisions.”
Id. at 662.
The Supreme Court of
Virginia had frequent opportunity to engage in a case-by-case
assessment of the availability of sovereign immunity for
official capacity defendants in these prior decisions.
In those
cases, the Supreme Court of Virginia routinely held that
officers at a further remove from the Commonwealth than the
Superintendent of the Department of State Police were entitled
to immunity for claims arising out of acts that fell within the
scope of their official duties.
See, e.g., Sayre v. The Nw.
Turnpike Road, 37 Va. (10 Leigh) 454 (1839)(holding the
president and directors of the Northwestern Turnpike Road immune
against a claim that a bridge built by their company was
negligently constructed); Sayers v. Bullar, 180 Va. 222, 22
S.E.2d 9, 12 (1942)(workers performing blasting operations for
the State were immune because in performing the blasting they
“were simply carrying out instructions given them” by a state
agency and “were acting solely in their representative capacity
as lawful and proper agents of the State and not in their own
individual right”); Kellam v. School Board, 202 Va. 252, 117
23
S.E.2d 96 (1960)(school board was sufficiently high level
official to qualify for immunity); Lawhorne v. Harlan, 214 Va.
405, 200 S.E.2d 569 (1973)(hospital administrators at University
of Virginia Hospital sufficiently high level to qualify for
immunity); Banks v. Sellers, 224 Va. 168, 294 S.E.2d 862
(1982)(division school superintendent and high school principal
immune in suit alleging failure to provide a safe environment);
Bowers v. Commonwealth, 225 Va. 245, 302 S.E.2d 511
(1983)(highway department resident engineer immune from suit
alleging negligent construction of a culvert by the highway
department); Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891
(1983)(Superintendent of the Norfolk-Virginia Beach Expressway
immune from suit for negligently failing to provide adequate
barriers and traffic control).
In the case of Guerrero v. Deane, 1:09cv1313
(JCC/TRJ), 2010 WL 670089 (E.D. Va. Feb. 19, 2010), this Court
held that the Chief of the Prince William County Police
Department “serves in a high position that involves the exercise
of judgment and discretion and the execution of important
government functions” and is therefore immune from claims of
negligence for actions taken in his official capacity which
involve the exercise of his judgment and discretion.
As
Superintendent of the Virginia Department of State Police,
Flaherty is in a position analogous to the Chief of the Prince
24
William County Police Department on a state-wide level.
Flaherty’s only role in this case, as alleged in
Plaintiff’s Complaint, was his failure to implement certain
policies and practices within the Department of State Police.
The act of designing the training curriculum for the Department
of State Police necessarily involves the exercise of judgment
and discretion.
Applying the Messina test, it is clear that
sovereign immunity protects Superintendent Flaherty from
liability for negligence in designing the training curriculum
for the Department of State Police, just as it protected the
Prince William County Chief of Police in Deane.
Thus, the Court
dismisses Count II of Plaintiff’s Complaint, for wrongful death
by negligence, as against Superintendent Flaherty.
2.
Wrongful Death by Gross Negligence
Count III of Plaintiff’s Complaint alleges wrongful
death by gross negligence against Superintendent Flaherty and
the John Doe Defendants.
The sovereign immunity granted to
qualifying employees of the Commonwealth under Messina is a kind
of qualified immunity, and does not extend to intentional torts
or torts involving gross negligence.
See Colby v. Boyden, 241
Va. 125, 400 S.E.2d 184, 187 (1991)(citing James v. Jane, 221
Va. 43, 282 S.E.2d 864, 869 (1980); Sayers v. Bullar, 180 Va.
222, 22 S.E.2d 9, 12 (1942)).
Gross negligence requires a
showing that the defendant acted with the “absence of slight
25
diligence, or the want of even scant care.”
Frazier v. City of
Norfolk, 234 Va. 388, 362 S.E.2d 688, 691 (1987).
“It must be
such a degree of negligence as would shock fair minded men
although something less than willful recklessness.”
Ferguson, 212 Va. 86, 181 S.E.2d 648, 653 (1971).
Ferguson v.
“It is a
heedless and palpable violation of legal duty respecting the
rights of others.”
Town of Big Stone Gap v. Johnson, 184 Va.
375, 35 S.E.2d 71, 73 (1945).
Defendants argue that Plaintiff has failed to identify
a specific duty running from Defendants to Plaintiff which they
are alleged to have violated.
Plaintiff’s Complaint lays out
several duties allegedly running from Defendant to Plaintiff.3
The Court notes that courts routinely assess claims for gross
3
Plaintiff points to the following alleged duties supposedly
owed to Mr. Simpson by Defendants:
(1) a duty to protect his life and wellbeing in the
performance of their duties; (2) A duty to protect him
from reasonable risks of harm; (3) A duty to protect
him from the reasonable risks of harm insofar as the
risk of foreseeable danger and/or death to him was
even greater than others because of his history of
mental illness; (4) A duty to act with due care in
performing their duties and such actions undertaken by
them, and as such, a duty to act with care as to him;
and (5) A duty in light of all of the circumstances
surrounding him and his mental illness to act
reasonably
and
conform
their
actions
as
the
circumstances so required in order to deescalate the
situation and take him safely into custody for mental
evaluation.
(Pl.’s Mem. in Opp’n at 11.)
26
negligence arising from the use of force by police officers
without clearly identifying a specific duty running from the
defendant officers to the plaintiff.
See, e.g., McLenagan v.
Karnes, 27 F.3d 1002, 1008-09 (4th Cir. 1994)(reversing denial
of summary judgment on gross negligence claims stemming from
police shooting of fleeing detainee); Milstead v. Kibler, 91 F.
Supp. 2d 895, 901-902 (W.D. Va. 2000)(granting summary judgment
on gross negligence claims arising from police shooting);
Russell v. Wright, 916 F. Supp. 2d 629, 644 (W.D. Va.
2013)(granting summary judgment on gross negligence claims
stemming from use of a taser by police); Valladares v. Cordero,
No. 1:06cv1378 (JCC), 2007 WL 2471067, at *5 (E.D. Va. Aug. 27,
2007)(granting summary judgment on gross negligence claim
stemming from use of force in an arrest); Drake v. Higgins, No.
Civ.A.97-0143-C, 1999 WL 462987, at *7 (W.D. Va. June 10,
1999)(granting summary judgment on gross negligence claims
stemming from confrontation between police officer and college
student);
Johnson v. City of Richmond, Va., No.
Civ.A.3:04CV340, 2005 WL 1668080, at *11-12 (E.D. Va. June 16,
2005)(denying summary judgment on gross negligence claim
stemming from shooting of unarmed detainee).
Accordingly, the
Court presumes the existence of a duty on the part of Defendants
to refrain from engaging in grossly negligent acts and proceeds
to analyze whether the facts alleged could support a finding
27
that Defendants’ actions constituted gross negligence.
Superintendent Flaherty is not alleged to have been
present when Decedent was shot, nor is he alleged to have
ordered any of the actions resulting in decedent’s death.
Plaintiff specifically alleges that Superintendent Flaherty was
grossly negligent in failing to observe his duty “to act with
due care in performing [his] duties by declining to train or
inadequately training [his] employees in regard to dealing with
mentally ill individuals.”
(Compl., ¶¶ 50, 55.)
Despite the
conclusory language of her Complaint, Plaintiff alleges no facts
which could plausibly support an inference that Superintendent
Flaherty acted with anything approaching the “absence of slight
diligence, or the want of even scant care.”
at 691.
Frazier, 362 S.E.2d
In Deane, this Court held that a police chief’s alleged
failure to implement policies and customs regarding training,
hiring, and supervision could generally not support a claim for
gross negligence.
2010 WL 670089, at *14.
Plaintiff’s
complaint does not allege any extraordinary failures or
oversights by Superintendent Flaherty, and it thus fails to
state a claim for wrongful death by gross negligence against
Superintendent Flaherty.
Accordingly, the Court dismisses Count
III of Plaintiff’s Complaint with respect to Defendant Flaherty.
3.
Constitutional Claims
Count VI of Plaintiff’s Complaint alleges violations
28
of Decedent’s Fourth and Fourteenth Amendment rights by
Superintendent Flaherty and the John Doe Defendants.
is brought pursuant to 42 U.S.C. § 1983.
Count VI
Section 1983 provides
a federal cause of action against “[e]very person” who deprives
another of their constitutional rights under color of state law
within the jurisdiction of the United States.
42 U.S.C. § 1983.
While Superintendent Flaherty is a literal person, a suit
against him in his official capacity is not truly a suit against
him, but a suit against the office of the Superintendent of the
Virginia Department of State Police.
464, 471 (1985).
“As such, it is no different from a suit
against the State itself.”
(1989).
Brandon v. Holt, 469 U.S.
Will v. Michigan, 491 U.S. 58, 71
The Supreme Court has held that “neither a State nor
its officials acting in their official capacities are ‘persons’
under § 1983.”
Id.
Plaintiff brings this suit against
Superintendent Flaherty in his official capacity, and her
Complaint alleges only actions taken in his official capacity.
Accordingly, the Court dismisses Count VI of Plaintiff’s
Complaint as against Superintendent Flaherty.
C.
John Doe Defendants
Plaintiff brings Counts II, III, and VI against the
John Doe Defendants.
All of the Doe Defendants are officers of
the Virginia Department of State Police, and they are not
29
individually distinguished in Plaintiff’s Complaint.4
1.
Wrongful Death by Negligence
Count II of Plaintiff’s Complaint alleges that the Doe
Defendants caused Decedent’s death through their negligent acts,
specifically their “unreasonable and excessive force, and by
their refusal to use training techniques regarding mentally ill
persons.”
(Compl. ¶ 44.)
In applying the Messina test to law
enforcement officers, this Court has previously held that
“[u]nder Virginia law, ordinary negligence claims cannot lie
against a law enforcement officer who was engaged in ‘an
essential governmental function involving the exercise of
discretion and judgment’ at the time of the act alleged to be
negligent.”
Savage v. Cty. of Stafford, Va., 754 F. Supp. 2d
809, 817 (E.D. Va. 2010)(citing Glasco v. Ballard, 249 Va. 61,
452 S.E.2d 854, 856 (1995)).
The Doe Defendants, as Officers of
the Virginia Department of State Police, are alleged to have
taken actions in furtherance of executing first the ECO, and
then the arrest warrant issued for Decedent and the search
warrant issued for Decedent’s Apartment.
4
The execution of ECOs,
Plaintiff’s Complaint is styled as being against “John
Does, Police Officers of the Virginia State Department (sic) of
Police, the identity and number of whom are presently unknown.”
Defendants have not raised any objection to this misnomer, and
it is clear from the remainder of Plaintiff’s Complaint that she
means to name unknown Officers of the Virginia Department of
State Police as the John Doe Defendants. The Court’s analysis
in this opinion proceeds on that assumption.
30
arrest warrants, and search warrants are essential functions of
police officers anywhere.
Thus, the Doe Defendants, like
Superintendent Flaherty, are entitled to immunity against
Plaintiff’s claim for wrongful death by negligence, and the
Court accordingly dismisses Count II of Plaintiff’s Complaint as
against the Doe Defendants.
2.
Wrongful Death by Gross Negligence
As discussed above, Count III of Plaintiff’s Complaint
alleges wrongful death by gross negligence against the Doe
Defendants, and although the Doe Defendants qualify for
sovereign immunity under the Messina test, it does not protect
them against claims for gross negligence.
at 187 (citations omitted).
See Colby 400 S.E.2d
Again, gross negligence requires a
showing that the defendant acted with the “absence of slight
diligence, or the want of even scant care.”
Frazier 362 S.E.2d
at 691.
No reasonable jury could possibly find that the
conduct alleged in Plaintiff’s complaint rises to this level.
The Doe Defendants, as officers of the VSP, are not alleged to
have taken any actions or have been involved with Decedent in
any way until at or around 5:30 p.m. of October 6, 2014.
(Compl., ¶ 19.)
At that point the Doe Defendants were presented
with the apparently mentally ill Decedent, barricaded in his
house, having recently provided officers of the FCPD with a
31
receipt for a shotgun.
(Id. at ¶¶ 17, 19.)
The facts alleged
demonstrate that after the Doe Defendants arrived, police
attempted to bring about a peaceful resolution through
negotiations and then attempted to incapacitate Decedent using
the less-lethal force of a stun gun before ultimately proceeding
to use tear gas and finally lethal force.
(Id. at ¶¶ 20-28.)
The specific actions the Doe Defendants, rather than officers
with another police department, are alleged to have taken are:
(1) the deployment of one or more heavily armed tactical
operations teams with two armored personal carriers at or around
12:00 a.m. on October 7, 2014; (2) the use of flashbangs to
distract Decedent as the Doe Defendants breached the window of
Decedent’s house with a “throw phone” at or around 12:00 a.m. on
October 7, 2014 (3) the firing of tear gas canisters into
Decedent’s home through the windows beginning at or around 1:00
a.m. on October 7, 2014 and continuing intermittently until at
or around 6:45 a.m. of the same day; (4) the shooting of
Decedent by several Doe Defendant snipers as he emerged from the
front door firing his shotgun at or around 6:45 a.m. on October
7, 2014; (5) firing at Decedent’s shotgun to render it
inoperable as he lay on his back in the doorway with his gun
between his legs, the barrel resting on the floor and the butt
positioned near his chest, after Decedent had been shot; and (6)
shooting Decedent in the chest with a beanbag round to see if he
32
was incapacitated or still an active threat as he lay on the
ground after being shot.
Even viewing the facts in the light
most favorable to the Plaintiff, these actions clearly indicate
a cautious, slow escalation in force in response to the
increasing threat posed by Decedent at the various stages of the
standoff.
At no point do they indicate anything approaching “a
heedless and palpable violation of legal duty respecting the
rights of others.”
Town of Big Stone Gap, 35 S.E.2d at 73.
Plaintiff urges the Court to find that Defendants were
grossly negligent in not simply standing pat and waiting for Mr.
Simpson to turn himself in once God signaled to him that this
was the right course of action by failing to levitate a model of
a local restaurant from his sidewalk into his house at 9 a.m.
the next morning.
Even viewing the facts in the light most
favorable to the Plaintiff, Defendants’ decision not to
patiently wait for an armed, delusional, likely violent man to
turn himself in once God instructed him to do so cannot be
considered “the absence of slight diligence, or the want of even
scant care.”
Frazier, at 691.
If Defendants had let the
mentally ill Decedent walk out with his shotgun and the model of
the restaurant and he had shot or otherwise injured a passerby,
the Court “do[es] not doubt that [it] would today be deciding
whether [Defendants’] decision in that case constituted
‘complete neglect of the safety of another.’”
33
McLenagan, 27
F.3d at 1009 (4th Cir. 1994)(ordering dismissal of a gross
negligence claim for shooting an unarmed prisoner attempting to
flee and believed to be in possession of a firearm.)
Accordingly, because the facts alleged could not support a
finding that the Doe Defendants acted with gross negligence in
the standoff that ultimately resulted in Decedent’s death, the
Court dismisses Count III of Plaintiff’s Complaint as against
the Doe Defendants without prejudice.
3.
Constitutional Claims
Finally, Plaintiff alleges that the Doe Defendants
subjected Decedent to unreasonable and excessive force and
deprived him of his life and liberty without due process of law
in violation of the Fourth and Fourteenth Amendments. (Compl. ¶
68.)
As a preliminary matter, Plaintiff plainly fails to state
a claim for excessive use of force in violation of the
Fourteenth Amendment.
The Fourteenth Amendment’s Due Process
Clause applies only to excessive force claims brought by
individuals already in custody.
See Orem v. Rephann, 523 F.3d
442, 446 (4th Cir. 2008), abrogated on other grounds by Wilkins
v. Gaddy, 559 U.S. 34, 37 (2010).
Plaintiff does not allege
that Mr. Simpson was in custody when any of the allegedly
excessive uses of force took place.
Claims of excessive force in the course of an arrest
or other seizure are analyzed under the Fourth Amendment’s
34
reasonableness standard.
(1989).
Graham v. Connor, 490 U.S. 386, 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 ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
hindsight.”
Graham, 490 U.S. at 396.
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. Cty.,
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.”
527.
Jones, 325 F.3d at
Courts must consider “the salient events ‘in full context,
with an eye toward the proportionality of the force in light of
all the circumstances.’”
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)).
Even where an official sued under § 1983 has violated
the aggrieved party’s Fourth Amendment rights, the official “is
entitled to qualified immunity unless it is shown that the
35
official violated a statutory or constitutional right that was
‘clearly established’ at the time of the challenged conduct.”
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)(quoting
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011)).
A defendant
will only be held to have violated a clearly established right
where “the right’s contours were sufficiently definite that any
reasonable official in the defendant’s shoes would have
understood that he was violating it.”
Id.
This requires that
“the existing precedent must have placed the statutory or
constitutional question’ confronted by the official beyond
debate.”
Id.
(internal quotations omitted).
The Supreme Court
has repeatedly warned courts “not to define clearly established
law at a high level of generality.”
2074.
Ashcroft, 131 S. Ct. at
The right must be defined with a fine grain, as an overly
broad definition “avoids the crucial question whether the
official acted reasonably in the particular circumstances that
he or she faced.”
Plumhoff, 134 S. Ct. at 2023.
In her complaint and memorandum in opposition,
Plaintiff argues that Defendants set in motion the chain of
events leading to the eventual shooting of Mr. Simpson by
unreasonably deploying “military-style machinery and dozens of
police officers” in an escalation of the standoff.
in Opp’n at 20.)
(Pl.’s Mem.
However, the Fourth Circuit recently held that
a “police officer’s pre-seizure conduct, regardless of whether
36
it was ill-advised or violative of law enforcement protocol, is
generally not relevant for purposes of an excessive force claim
under the Fourth Amendment which looks only to the moment force
is used.”
2013).5
Gandy v. Robey, 520 F. App’x 134, 142 (4th Cir.
The Fourth Circuit referred to a theory of “setting-in-
motion” a constitutional violation as “highly dubious in the
excessive force context,” and found “the mere decision itself to
make a surprise entry as opposed to other alternatives affords
no basis for liability.”
refute this precedent.
Id.
Plaintiff has cited no cases to
Accordingly, Defendants’ decision to
deploy military style equipment and police snipers, although
possibly ill-advised, is not relevant to Plaintiff’s claim of
unreasonable force.
Plaintiff points to three allegedly excessive actual
uses of force; first, the use of flashbangs and teargas
canisters against Decedent after negotiations had broken down
but before Decedent began firing his shotgun out of his window;
second, the shooting of Decedent by police snipers when he
exited the house firing his shotgun; and third, the use of a K9
5
This unpublished opinion is not binding precedent in the
Fourth Circuit, but still indicates the unlikely existence of
the right Plaintiff asserts here. See Owens v. Balt. City
State’s Attorney’s Office, 767 F.3d 379, 401 n.10 (4th Cir.
2014) (noting that unpublished opinions do not “reflect the kind
of judicial disagreement that makes qualified immunity
appropriate,” but also that they “may reflect judicial
disagreement about whether a right is in fact clearly
established”).
37
unit dog to attempt safe physical apprehension after Decedent
had already been shot.
(Compl. ¶¶ 24-31; Pl.’s Mem. in Opp’n at
21-22.)
It was the FCPD, rather than the Doe Defendants, who
“brought in” the K9 unit to attempt physical apprehension under
the facts as alleged in Plaintiff’s complaint.
(Compl., ¶ 31.)
Because the Doe Defendants are not alleged to have taken any
part in the use of the K9 unit, and neither the FCPD nor any of
its officers are named as defendants in Plaintiff’s Complaint,
the use of the K9 unit is irrelevant to Plaintiff’s claims in
this case.
The Court will now address the other two uses of
force identified by Plaintiff.
The first allegedly excessive use of force occurred
when police used teargas and flashbangs against Decedent in his
house after communications had broken down.
As alleged in
Plaintiff’s complaint, the police did not resort to teargas and
flashbangs until Decedent had ceased productively communicating
with police and had passed them a receipt for a shotgun he had
illegally purchased.
(Compl. ¶¶ 17, 23-24.)
It was not
unreasonable for the officers on the scene to interpret
Decedent’s delivery of the receipt for the shotgun as a
declaration that he was armed with a shotgun in his house.
At
that point in time, officers were confronted with an armed,
mentally unstable individual, who was resisting an ECO, a search
38
warrant, and an arrest warrant, and who had terminated
communications with police.
No reasonable jury could find that
the use of non-lethal measures like flashbangs and teargas to
attempt to force the very likely armed, certainly unstable, and
undeniably uncooperative Mr. Simpson out of his house, where he
posed a serious threat to himself and any officer attempting to
apprehend him, and into the open, where he could be more safely
apprehended, was an unreasonable use of force.
Accordingly, the
use of flashbangs and tear gas was not an excessive use of force
and did not violate Mr. Simpson’s Fourth Amendment rights.
Ultimately, the standoff proceeded for several hours
during which Mr. Simpson fired his shotgun out of his window
several times, and ended with Mr. Simpson exiting the house
firing his shotgun and being shot several successive times by
police snipers.
Plaintiff does not allege that any of the shots
which hit Decedent took place after Decedent had been
incapacitated.
(Compl. ¶¶ 27-29.)
When the John Doe Defendants
shot Decedent, he was exiting his house after hours of sporadic
gunfire at police outside his house, and was firing his shotgun.
There is no doubt that at that moment they shot Decedent, the
Doe Defendants were reasonably concerned that Decedent posed an
imminent threat of severe bodily harm to them, their fellow
officers, and the public at large.
See Estate of Williams v.
Clemens, No. 96-2425, 1997 WL 697197 (4th Cir. Nov. 7,
39
1997)(finding the fatal shooting of an armed, mentally ill
individual after a protracted standoff involving sporadic
gunfire to be reasonable).
Plaintiff argues that these actions were “especially
extreme when considering the knowledge officers had of
[Decedent’s] illness and his previous reactions to their
tactics.”
(Pl.’s Mem. in Opp’n at 22.)
However, the Fourth
Circuit has previously held that “[k]knowledge of a person’s
disability simply cannot foreclose officers from protecting
themselves, the disabled person, and the general public when
faced with threatening conduct by the disabled individual.”
Bates v. Chesterfield Cty., 216 F.3d 367, 372 (4th Cir. 2000).
Decedent’s mental illness did not require Defendants to leave
Decedent, a mentally ill, armed individual, to his own devices
for several hours as he willfully violated court orders and
resisted entering custody.
Defendants were rightly hesitant to
trust the judgment of a man who wanted to see if God would
levitate his model of a local restaurant back into his house
from the sidewalk in a sign of his righteous claim to ownership.
Because the facts alleged cannot sustain a claim that
Plaintiff’s Fourth Amendment rights were violated by the
unreasonable application of excessive force, the Court dismisses
Plaintiff’s § 1983 claims against the Doe Defendants.
40
Even if the Doe Defendants’ alleged actions were
unreasonable in light of the circumstances, they certainly did
not violate any clearly established law.
Plaintiff does not
point to, and this Court cannot find, any case law clearly
establishing that any of the Doe Defendants’ actions were
unreasonable in light of the situation.
As discussed above, the
weight of Fourth Circuit and Supreme Court case law addressing
situations similar to the one presented by this case strongly
suggests that the Doe Defendant’s actions were reasonable.
See
Estate of Williams, 1997 WL 697197 at *2; Bates, 216 F.3d at
372; Gandy, 520 F. App’x at 142.
The cases dealing with
standoffs between police officers and armed, mentally ill
individuals “by no means clearly establish that [the Doe
Defendants] conduct violated the Fourth Amendment.”
Haugen, 543 U.S. 194, 201 (2004)(per curiam).
Brosseau v.
There is
therefore no way a reasonable jury could possibly find that the
Doe Defendants’ conduct as alleged violated a “clearly
established” right.
Because none of Plaintiff’s claims remain after
dismissal of Plaintiff Constitutional Claims against the Doe
Defendants, Plaintiff’s Complaint is dismissed in its entirety.
IV. Conclusion
For the foregoing reasons, the Court grants
Defendant’s Motion to Dismiss.
Plaintiff’s complaint is
41
dismissed in its entirety.
Counts I and II, as interpreted
above, are dismissed with prejudice as to all Defendants.
Count
III, as interpreted above, is dismissed with prejudice as to the
Commonwealth and Superintendent Flaherty.
Count III is
dismissed without prejudice as to the Doe Defendants.
is dismissed with prejudice as to all Defendants.
dismissed with prejudice as to all Defendants.
Count IV
Count V is
Count VI is
dismissed with prejudice as to the Commonwealth and
Superintendent Flaherty.
Count VI is dismissed without
prejudice as to the Doe Defendants.
An appropriate Order shall issue.
/s/
July 21, 2016
Alexandria, Virginia
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
42
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