Tobey v. Napolitano et al

Filing 28

Memorandum in Opposition re 19 MOTION to Dismiss Complaint of Commission Defendants filed by Aaron Tobey. (Knicely, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AARON TOBEY,
Plaintiff,
v.
JANET NAPOLITANO, et al.
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 3:11cv154-HEH

PLAINTIFF’S OPPOSITION AND MEMORANDUM OF LAW IN
OPPOSITION TO DEFENDANTS’ PARTIAL MOTION TO DISMISS
James J. Knicely (VSB #19356)
Robert Luther III (VSB #78766)
KNICELY & ASSOCIATES, P.C.
487 McLaws Circle, Suite 2
Williamsburg, Virginia 23185
[phone] (phone)
[phone] (fax)
[e-mail]
Of Counsel:
Anand Agneshwar
Alan C. Veronick
ARNOLD & PORTER, LLP
399 Park Avenue
New York, New York 10022-4690
[phone] (phone)
(212) 212-715.1399 (fax)
[e-mail]
John W. Whitehead (VSB # 20361)
Douglas R. McKusick (VSB # 72201)
The Rutherford Institute
1440 Sachem Place
Charlottesville, Virginia 22906
Participating Attorneys for
THE RUTHERFORD INSTITUTE
Attorneys for Plaintiff, AARON TOBEY
Dated: May 27, 2011

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT .........................................................................................1
FACTUAL ALLEGATIONS ..............................................................................................3
STANDARD OF REVIEW .................................................................................................6
ARGUMENT.......................................................................................................................7
I.

Plaintiff Has Alleged Sufficient Facts Demonstrating That the Official
Policies, Customs, and/or Practices of the Commission and Its
Policymaker Were the Cause of the Constitutional Deprivations in This
Case..........................................................................................................................7
A.

The Complaint Alleges That Plaintiff’s Constitutional
Deprivations Were the Result of the Commission’s
Policies, Customs, and/or Practices. ............................................................7

B.

The Complaint Alleges That Plaintiff’s Constitutional
Deprivations Were the Result of a Course of Action Taken
and Directly Sanctioned by an Official Policymaker and
Supervisor. ...................................................................................................9

C.

The Complaint Alleges That Plaintiff’s Constitutional
Deprivations Were the Result of a Failure to Train...................................11

D.

The Claims Against the Individuals in Their Official
Capacities...................................................................................................14

II.

The State-Law Claims............................................................................................14

III.

The Filing of the Amended Complaint. .................................................................14

CONCLUSION..................................................................................................................15

-i-

TABLE OF AUTHORITIES
PAGE(S)

CASES

Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009)..................................................................................................10
Avery v. Burke County,
660 F.2d 111 (4th Cir. 1981) .........................................................................................9
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)....................................................................................................6,7
Board of County Comm’rs of Bryan County v. Brown,
520 U.S. 397 (1997).....................................................................................................12
City of Canton v. Harris,
489 U.S. 378 (1989)................................................................................................11,12
Cohen v. California,
403 U. S. 15 (1971)......................................................................................................13
Corbin v. Woolums,
No. 3:08-Civ-173, 2008 WL 5049912 (E.D. Va. Nov. 25, 2008) ..............................2,9
Edwards v. City of Goldsboro,
178 F.3d 231 (4th Cir. 1999) .........................................................................................7
Harden v. Montgomery County,
No. 8:09-CV-031666, 2010 WL 3938326 (D. Md. Oct. 6, 2010) ...............................15
Harlow v. Fitzgerald,
457 U.S. 800 (1982).......................................................................................................6
Johnson v. City of Richmond, Va,
No. 3:04-Civ-340, 2005 WL 1793778 (E.D. Va. June 24, 2005)................................10
McCall v. City of Portsmouth,
No. 2:07cv339, 2007 WL 3025359 (E.D. Va. Oct. 12, 2007) .......................................7
Monell v. Dep’t of Social Servs.,
436 U.S. 658 (1978).................................................................................................2,8,9
Pachaly v. City of Lynchburg,
897 F.2d 723 (4th Cir. 1990) .........................................................................................2

- ii -

Pembaur v. City of Cincinnati,
475 U.S. 469 (1986)...............................................................................................2,9,10
Republican Party of NC v. Martin,
980 F.2d 943 (4th Cir. 1992) ......................................................................................6,7
Revene v. Charles County Comm’rs,
882 F.2d 870 (4th Cir. 1989) ....................................................................................6,10
Scheuer v. Rhodes,
416 U.S. 232 (1974)....................................................................................................6,7
Scinto v. Preston,
170 Fed. Appx. 834 (4th Cir. 2006)...............................................................................6
Shaw v. Stroud,
13 F.3d 791 (4th Cir. 1994) .........................................................................................10
Simpson v. Univ. of Colo.,
500 F.3d 1170 (10th Cir. 2007) ............................................................................. 12-13
Smith v. Goguen,
415 U.S. 566 (1974).....................................................................................................13
Spell v. McDaniel,
824 F.2d 1380 (4th Cir. 1987) ..................................................................................8,10
Spell v. McDaniel,
591 F. Supp. 1090 (E.D.N.C. 1984).............................................................................10
Venkatraman v. REI Sys., Inc.,
417 F.3d 418 (4th Cir. 2005) .........................................................................................7
Wellington v. Daniels,
717 F.2d 932 (4th Cir. 1983) .......................................................................................10
Woodward v. Corr. Med. Servs. of Ill., Inc.,
368 F.3d 917 (7th Cir. 2004) .......................................................................................13
PAGE(S)

STATUTES

42 U.S.C. § 1983........................................................................................................ passim
Fed. R. Civ. Pro. 12(b)(6) ...............................................................................................7,14
Virginia Code 18.2-415 .......................................................................................................6

- iii -

PRELIMINARY STATEMENT
On December 30, 2010, Plaintiff Aaron Tobey, decided to peacefully protest what
he perceived to be invasive enhanced airport screening procedures at Richmond
International Airport (RIC). When asked to walk through an advanced imaging screening
unit at RIC, Plaintiff removed his shirt, sweatpants, and shoes, displaying the text of the
Fourth Amendment on his chest. The Transportation Security Administration (“TSA”)
and the Capital Region Airport Commission (the “Commission”) police then humiliated
and punished him in direct retaliation for this protected act of peaceful protest, detaining
and arresting him without probable cause, repeatedly searching his belongings, seizing
and discarding certain of his personal effects, and charging him with a trumped up,
meritless, charge of disorderly conduct which the prosecutor subsequently dismissed.
With this lawsuit Plaintiff seeks to vindicate his First, Fourth, and Fourteenth
Amendment rights.
By their motion, the Commission Defendants 1 ask this Court to dismiss Plaintiff’s
Section 1983 claim, on the theory that Plaintiff failed to plead “factual allegations of
other instances of the Commission’s constitutional abuses.” Comm’n Defs. Br. at 5
(emphasis added). But the United States Supreme Court, the United States Court of
Appeals for the Fourth Circuit, and this Court, have soundly rejected such a limitation,
expressly permitting municipal liability claims to proceed based upon a single official act
or decision. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (“[I]t is
plain that municipal liability may be imposed for a single decision by municipal
1

The Commission Defendants include the Commission and Defendants Victor Williams (“Williams”), the
Director of Public Safety and Operations at RIC; Colonel Quentin Trice (“Colonel Trice”), the Chief of the
RIC Police; and Calvin Vann (“Vann”), Anthony Mason (“Mason”), and Jeffrey Kandler (“Kandler”),
officers of the RIC, each acting in their official capacities.

policymakers under appropriate circumstances.”) (discussing Monell v. Dep’t of Social
Servs., 436 U.S. 658 (1978)); Pachaly v. City of Lynchburg, 897 F.2d 723, 726 (4th Cir.
1990) (“The appellant contends, and we agree, that a single act by a municipality may
give rise to civil liability if it is shown that the officials of the municipality responsible
for establishing the challenged policy made a calculated choice to follow the course of
action deemed unconstitutional.”) (citing Pembaur, 475 U.S. at 480); Corbin v. Woolums,
No. 3:08-Civ-173, 2008 WL 5049912, *10 (E.D. Va. Nov. 25, 2008) (“Municipal
liability may be imposed for even a single decision by municipal policymakers under
appropriate circumstances.”) (citing Pembaur, 475 U.S. at 480).
The Plaintiff’s First Amended Complaint 2 clearly and specifically alleges facts
which if true would constitute a Section 1983 violation by the Commission and its
official actor. The Amended Complaint plainly contends that the Commission, through
its agreements with TSA and the actions of its policymaking officials, has adopted
policies, customs, and practices related to passenger screening, security collaboration and
coordination, and “security plays” to be made by TSA officers and RIC police that
directly caused Plaintiff’s constitution deprivations. Plaintiff’s Complaint fairly alleges
that the Commission’s failure to train and supervise RIC police officers was so obvious
that it demonstrates deliberate indifference to the constitutional rights of Plaintiff and

2

With the consent of Defendants’ counsel and pursuant to the Order entered on May 17, 2011, Plaintiff
filed a First Amended Complaint with this Court, concurrently with the filing of its Memorandum of Law
in Opposition to Defendants’ Partial Motion to Dismiss. The paragraph numbering and allegations
contained in the First Amended Complaint, which will be referenced in this Memorandum, remain the
same as the original Complaint except for allegations identifying the “John Doe” Defendants and
identifying with more specificity the “John Smith” Defendants by separate pseudonyms. Plaintiff is also
filing concurrently with the Clerk of this Court a motion to file under seal, pursuant to agreement of
counsel, an identical copy of the First Amended Complaint containing the true identities of the “John
Smith” Defendants, together with a sealed envelope containing such First Amended Complaint.

-2-

other airline passengers at RIC. Accordingly, the Commission Defendants’ motion to
dismiss should be denied.
FACTUAL ALLEGATIONS
The Commonwealth of Virginia has granted authority to the Commission to
operate, manage, and regulate RIC. Amend. Comp. ¶ 7. The Commission’s
responsibilities include promulgating and enforcing rules and regulations governing the
activities at RIC. Id. Colonel Quentin Trice, the Chief of the RIC Police, is the principal
supervisor of day-to-day operations of the RIC police force and responsible “for the
management, direction and supervision of the RIC Police and all police officers”
employed by the Commission. He shares with Defendant Victor Williams, the Director
of Public Safety and Operations of the Commission, responsibility “for the development,
promulgation, approval and implementation of all programs, policies, practices,
procedures, customs and protocols of the RIC Police including, without limitation, the
training and supervision of its police officers, and the operations and interactions of the
RIC Police officers with other security personnel and agencies exercising security
functions at RIC.” Id. ¶¶ 8, 11. Defendants Vann, Mason, and Kandler are RIC Police
officers. Id. ¶¶ 10-11.
The TSA is the government agency charged and empowered by law to maintain
and monitor the security of commercial travel in the United States. Id. ¶ 13. In this
capacity, TSA conducts screening and searches of airline passengers at airports, including
RIC. Id. ¶ 14. TSA’s screening activities are governed by TSA Management Directive
No. 100.4, which establishes a regime and protocol for passenger screening designed to
protect against terrorism and “to find explosives, incendiaries, weapons or other items

-3-

and screening to ensure that an individual[’]s identity is appropriately verified and
checked against government watch lists.” Id. ¶¶ 15-18.
TSA and the Commission have entered into agreements under which the
Commission makes its law enforcement officers available to TSA to enforce the TSA’s
and the Commission’s regulations, policies, practices, customs, and protocols at RIC. Id.
¶¶ 7, 20, 23. The agreements include a Memorandum of Agreement requiring TSA “[t]o
provide guidance as to the process and procedures necessary to implement the Playbook
Concept,” and establishing a process by which TSA and the Commission “will act
collaboratively for the purpose of combining layers of security and coordinating the
assets of TSA, law enforcement, and other security partners at the airport to improve the
overall airport security posture.” Id. ¶ 21. Under the Memorandum of Agreement, the
Commission has responsibility “to actively participate in the collaborative coordination
of security countermeasures” and “to assign airport resources, when available and
appropriate, to execute agreed upon Plays.” Id. ¶ 22.
These rules, procedures and protocols were in effect on December 30, 2010, when
Plaintiff Aaron Tobey, a Charlottesville, Virginia resident studying architecture at the
University of Cincinnati, sought to fly from RIC to his grandfather’s funeral in
Wisconsin. Id. ¶ 25. Anticipating being selected for enhanced electronic body scanning
or pat down procedures that he believed were unconstitutionally intrusive, Plaintiff
decided to make his views known — writing the text of the Fourth Amendment in black
marker on his chest. Id. ¶ 26. When he reached the passenger screening location and
placed his belongings on a conveyor belt, Defendant Rebecca Smith diverted him to an
Advanced Imaging Technology (“AIT”) scanning unit. Id. ¶¶ 27-30. Before entering the

-4-

AIT scanning unit, Plaintiff removed and placed his t-shirt and sweatpants on the
conveyor belt. He stood in athletic running shorts and socks, revealing the “protest
language” on his chest. Id. ¶ 31. When told that he did not need to remove his clothing,
Plaintiff responded that he wished to do so to express his belief that enhanced screening
procedures were unconstitutional. Id. ¶ 32. At that point, Defendant Smith radioed for
assistance and Defendants Vann and Mason arrived. Vann, at the urging of Defendant
Mason, accosted Plaintiff from behind, handcuffed him, pushed him through the AIT
device, and arrested him for “creating a public disturbance.” Id. ¶¶ 33-35.
Vann then took Plaintiff to the airport police station, located under the center of
the main RIC concourse. Id. ¶ 39. There, several officers, including Vann, questioned,
bullied and argued with him about his protest. Id. ¶ 40-41. They told him ominously that
his conduct would have repercussions, threatened that they would make sure he would
have a permanent criminal record, and for no discernible legitimate reason reported the
incident by phone to the University of Cincinnati police. Id. ¶¶ 41-43, 50. One of the
Defendant Officers told Plaintiff that by purchasing a ticket and commencing a screening
procedure, he had surrendered his Fourth Amendment rights. Id. ¶ 44. They told him
they were taking him to the Henrico County jail, and removed and discarded certain of
his personal belongings which were declared to be “contraband.” Id. ¶¶ 48, 51-53.
Plaintiff spent one and one-half hours in handcuffs with arms behind his back,
wearing only running shorts and socks in the cold airport police station. Finally the
officers informed Plaintiff that he could leave for his flight after he spoke with an Air
Marshal from the Federal Air Marshal’s Joint Terrorism Task Force. Id. ¶¶ 54-55. Once
the Air Marshal completed his questioning, Defendants released him, but not before

-5-

charging him with disorderly conduct in a public place in violation of Virginia Code
18.2-415. Id. ¶¶ 56, 63. The Commonwealth Attorney for Henrico County, Virginia
subsequently dropped the charge, admitting there was no evidence to sustain it. Id. ¶ 75.
STANDARD OF REVIEW
A motion to dismiss a claim under 42 U.S.C. § 1983 “should not be granted
unless it appears beyond doubt that the plaintiff can prove no set of facts to support h[is]
allegations.” Revene v. Charles County Commissioners, 882 F.2d 870, 872 (4th Cir.
1989) (emphasis added) (internal citations omitted). As the United States Supreme Court
explained in Scheuer v. Rhodes, 416 U.S. 232 (1974),
[w]hen a federal court reviews the sufficiency of a [§ 1983]
complaint, before the reception of any evidence either by
affidavit or admissions, its task is necessarily a limited one.
The issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claims. Indeed it may appear on the face of the
pleadings that a recovery is very remote and unlikely but
that is not the test.
Id. at 236, abrogated on other grounds by, Harlow v. Fitzgerald, 457 U.S. 800 (1982);
see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007) (affirming decision
not to expand pleading requirements beyond the limits of the Federal Rules); Scinto v.
Preston, 170 Fed. Appx. 834, 836 (4th Cir. 2006) (stating that “where the face of the
pleadings tends to show that recovery would be very remote and unlikely, a complaint
cannot be dismissed unless there is no set of facts in support of the claim which would
entitle the plaintiff to relief”) (emphasis added) (quoting Scheuer); Revene, 882 F.2d at
872 (quoting Scheuer for the proposition quoted above).
A motion to dismiss under Rule 12(b)(6) “does not resolve contests surrounding
the facts, the merits of a claim, or the applicability of defenses.” Republican Party of NC

-6-

v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). The complaint’s allegations are taken as
true and all reasonable factual inferences should be construed in the plaintiff’s favor. See
McCall v. City of Portsmouth, No. 2:07cv339, 2007 WL 3025359, *3 (E.D. Va. Oct. 12,
2007) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)); see
also Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (“In considering a
motion to dismiss, we accept as true all well-pleaded allegations and view the complaint
in the light most favorable to the plaintiff.”). Rule 12(b)(6) does “not require heightened
fact pleading of specifics, but only enough facts to state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570.
ARGUMENT
I.

Plaintiff has Alleged Sufficient Facts Demonstrating That the Official
Policies, Customs, and/or Practices of the Commission and Its Policymaker
Were the Cause of the Constitutional Deprivations in This Case.
The Commission Defendants argue that Plaintiff has failed to state a Section 1983

claim because he has not alleged multiple instances of constitutional violations. The
Commission Defendants ignore a wealth of precedent squarely holding that in some
circumstances a plaintiff can succeed on a Section 1983 claim based on a single act or
“decision” by a municipality, including its policymakers. See, supra, at p. 2. Properly
evaluated, Plaintiff’s Amended Complaint alleges policies, customs, and/or practices that
resulted in constitutional deprivations. Accordingly, whether Plaintiff ultimately will
prevail cannot and should not be decided on a motion to dismiss.
A.

The Complaint Alleges That Plaintiff’s Constitutional Deprivations
Were the Result of the Commission’s Policies, Customs, and/or
Practices.

The Commission Defendants do not contend that their officers’ actions complied
with the Constitution. Instead, they take Plaintiff to task for not identifying a

-7-

Commission policy that authorizes its employees to commit constitutional violations.
They also contend that because one of their policies pays lip service to the First
Amendment, they are not liable for First Amendment violations. It is beyond
peradventure, however, that the Commission’s policies, customs, or practices either
sanctioned unconstitutional conduct, or were lacking in standards as to be constitutionally
infirm.
First, a local authority can be held liable under Section 1983 for ordinances,
regulations, and official acts adopted by its governing body “which directly command or
authorize constitutional violations.” Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir.
1987) (citing Monell, 436 U.S. at 694); id. at 1387. Here, in exercising its authority to
“operate, manage and regulate [RIC]”, the Commission has adopted policies and
procedures to facilitate and conduct passenger screening and law enforcement activities
related to security at RIC. These policies and procedures are embodied in the
Commission’s rules and regulations governing activities at RIC, the agreements between
TSA and the Commission, and the TSA’s rules, regulations, directives, procedures, and
protocols, which the Commission has adopted as its own. Amend. Compl. ¶¶ 17-24, 67.
Under the Memorandum of Agreement between TSA and the Commission, TSA is
responsible for providing guidance on processes and procedures “to implement the
Playbook Concept” and the Commission is responsible for “assign[ing] airport resources,
when available and appropriate, to execute agreed upon Plays.” Id. ¶¶ 21-23. If the
Defendant Officers followed these policies, customs, or practices, then those “policies”
authorized constitutional violations and directly led to Plaintiff’s injuries.

-8-

Second, the Commission is also liable under Section 1983 for vesting
“standardless discretion” in the RIC police to determine whether there has been a
constitutional violation. See, e.g., Avery v. Burke County, 660 F.2d 111, 115 (4th Cir.
1981) (Section 1983 could apply to the Board of Health’s failure to adopt policies, rules,
or regulations for counseling persons believed to have the sickle cell trait by leaving the
decision “to the standardless discretion of individual employees.” (emphasis added)).
Here, the Commission claims to have promulgated rules and regulations setting forth
standards to insure First Amendment protection for speech involving picketing,
handbilling, and solicitation. Amended Complaint ¶¶ 68-69. But it does not claim to
have established guidelines governing other forms of expressive speech at RIC. Id. ¶¶
68-69, 78, 83. Instead, it vested “standardless discretion” in the RIC police “to make
unlawful distinctions based on the content or viewpoint of speech” Id. ¶¶ 87, 93. The
vesting of “standardless discretion” in areas involving important societal issues, such as
the First Amendment issues at play here, can form the basis of a Section 1983 claim.
B.

The Complaint Alleges That Plaintiff’s Constitutional Deprivations
Were the Result of a Course of Action Taken and Directly Sanctioned
by an Official Policymaker and Supervisor.

It is well-settled that a municipality may be liable under Section 1983 for the
actions of a municipal official “whose acts or edicts may fairly be said to represent
official policy, Monell, supra, at 436 U. S. 694, . . . whether that action is to be taken
only once or to be taken repeatedly.” Pembaur, 475 U.S. at 481 (emphasis added); see
also Corbin, 2008 WL 2149911, at *2 (liability “may also be found in formal or informal
ad hoc ‘policy’ choices or decisions of municipal officials authorized to make and
implement municipal policy”).

-9-

To hold a municipality liable for a single decision (or violation), the policymaker
must possess “authority to establish municipal policy with respect to the action ordered.”
Pembaur, 475 U.S. at 481-82; see also Spell, 824 F.2d at 1387 (a policy is fairly
attributed to a municipality when “it is directly made by . . . [an] official having final
authority to establish and implement the relevant policy”) (internal citations omitted);
Johnson v. City of Richmond, Va, No. 3:04-Civ-340, 2005 WL 1793778, at *4 (E.D. Va.
June 24, 2005) (“[i]n any case of municipal liability, ‘there must be an official whose acts
reflect governmental policy . . . in a matter involving the selection of goals or of means of
achieving goals, his choices represent government policy’”) (citing Spell v. McDaniel,
591 F. Supp. 1090, 1108 (E.D.N.C. 1984)). When police chiefs are “responsible for the
choice and implementation of police department practices and procedures, [their] acts and
omissions reflect government policy,” they will be considered official policymakers for
purposes of Section 1983 liability. Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.
1983); see also Johnson, 2005 WL 1793778, at *4 (the Chief of Police for the City of
Richmond was a policymaker); Revene, 882 F.2d at 874 (in the realm of county lawenforcement, the sheriff was the duly delegated policy-maker for the county). 3
The Amended Complaint alleges that Colonel Trice is the Chief of the RIC Police
and, in that capacity, was the senior officer on duty directing the RIC police on the date
of the incident. He was responsible “for the management, direction and supervision of
the RIC Police and all police officers” employed by the Commission. Amend. Compl. ¶
11. Colonel Trice also shares with Defendant Williams, the responsibility for

3

We note that Trice, as a supervising official, and a participant in the detention of Plaintiff, may also be
held liable in his individual capacity. See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994); Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009).

- 10 -

developing, promulgating, approving and implementing all policies, practices, procedures
and customs of the RIC Police including, “the training and supervision of its police
officers, and the operations and interactions of the RIC Police officers with other security
personnel and agencies exercising security functions at RIC.” Id. Colonel Trice was the
senior uniformed RIC police officer on the date of the incident, and directly sanctioned
and actively participated in the constitutional deprivations that occurred that day. Id. ¶¶
11, 40, 49-50. Accordingly, the Amended Complaint adequately asserts that Colonel
Trice, as the Chief of the RIC Police, was an official policymaker with respect to the
operations and conduct of the RIC police, thereby implicating the Commission itself in
authorizing and carrying out the unlawful conduct.
C.

The Complaint Alleges That Plaintiff’s Constitutional Deprivations
Were the Result of a Failure to Train.

The United States Supreme Court has long recognized that liability may be
imposed on a municipal entity for failing to train its employees to avoid violating the
constitutional rights of the citizens they serve. City of Canton v. Harris, 489 U.S. 378,
388 (1989). Plaintiff makes that claim here and the court should permit it to proceed.
The plaintiff in Canton alleged that the city’s inadequate training of police
officers resulted in their unconstitutional neglect of her medical condition following her
arrest. The Court explained that “failure to train” liability could be predicated upon
“deliberate indifference” to constitutional rights:
[I]t may happen that in light of the duties assigned to
specific officers or employees the need for more or
different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights, that
the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need. In that event, the
failure to provide proper training may fairly be said to
represent a policy for which the city is responsible, and for
- 11 -

which the city may be held liable if it actually causes
injury.
Id. at 390 (emphasis added). The Court then described two non-exclusive situations in
which a plaintiff could satisfy the requisite “level of fault” for failure-to-train liability
could be satisfied. First, the need for training “can be said to be ‘so obvious’ that a
failure to [train] could properly be characterized as ‘deliberate indifference’ to
constitutional rights.” Id. at 390 n.10. Second, “[i]t could also be that the police, in
exercising their discretion, so often violate constitutional rights that the need for further
training must have been plainly obvious to the city policymakers, who, nevertheless, are
‘deliberately indifferent’ to the need.” Id. Accordingly, if the failure to train is obvious,
plaintiff need not prove a pattern.
In Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520
U.S. 397 (1997), the Court reaffirmed “the possibility that evidence of a single violation
of federal rights, accompanied by a showing that a municipality has failed to train its
employees to handle recurring situations presenting an obvious potential for such a
violation, could trigger municipal liability.” Id. at 409 (citing Canton, 489 U.S. at 390,
n.10). The Court explained:
The likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle
that situation will violate citizens’ rights could justify a
finding that policymakers’ decision not to train the officer
reflected “deliberate indifference” to the obvious
consequence of the policymakers’ choice — namely, a
violation of a specific constitutional or statutory right. The
high degree of predictability may also support an inference
of causation — that the municipality’s indifference led
directly to the very consequence that was so predictable.
Id. at 409-10; see also Simpson v. Univ. of Colo., 500 F.3d 1170, 1178 (10th Cir. 2007)
(“In applying this standard we take note of Canton’s discussion of what is meant by an
- 12 -

‘obvious’ need for training. It recognized that a need could be ‘obvious’ for reasons
other than knowledge of previous incidents within the municipality.”); Woodward v.
Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929 (7th Cir. 2004) (evidence of a single
injury caused by a failure to train was evidence that the government actor “was fortunate,
not that it wasn’t deliberately indifferent”).
Here, the officers and agents acting under the Commission’s authority are
responsible for airport passenger screening. Given the public nature of an airport, and
widespread public controversy about the recently adopted enhanced digital body scanning
and body pat-down screening, the Commission obviously needed to train its officers and
agents properly to respond to First Amendment protests. Given that such protests were
likely to recur based on the sheer number of passengers passing through RIC screening, it
should have been obvious to the Commission that the failure to train would result in
constitutional violations. At this stage of the lawsuit, Plaintiff has adequately alleged that
the Commission’s failure to train its RIC officers and agents constituted deliberate
indifference to the risk of violating Plaintiff’s constitutional rights. Moreover, the RIC
Police Chief’s failure to recognize the egregious nature of the constitutional violations
committed here, itself demonstrates a complete failure of constitutionally adequate
training. 4
For these reasons, Plaintiffs’ claims based on a failure to train should survive the
Commission Defendant’s motion to dismiss.

4

See, e.g., Cohen v. California, 403 U. S. 15 (1971) (offensive language on a jacket worn in a courthouse
was protected speech), and Smith v. Goguen, 415 U.S. 566 (1974) (flag worn on clothing was protected
speech).

- 13 -

D.

The Claims Against the Individuals in Their Official Capacities.

Because Plaintiff’s Section 1983 claims against the Commission survives this
Rule 12(b)(6) motion to dismiss for the reasons stated above, Counts One, Two, and
Three should also be allowed against Defendants Williams, Trice, Vann, Mason and
Kandler in their official capacities.
II.

The State-Law Claims.
The Commission moves to dismiss the state-law claims of Counts IV and V,

against the Commission and Williams, based on the doctrine of sovereign immunity. The
Complaint as written, however, does not assert these claims against the Commission
Defendants.
III.

The Filing of the Amended Complaint.
As previously indicated, Plaintiff filed his Amended Complaint with the

Commission Defendants’ counsel’s consent. See Consent Motion to Extend Time and to
File Amended Complaint and May 17, 2011 Order entering the Consent Motion.
Plaintiff’s Amended Complaint identifies the “John Doe #1”, “John Doe #2” and “John
Smith” defendants, including rank and law enforcement responsibilities. To the extent
the Court believes the scope of the Amended Complaint goes beyond the stipulation,
Plaintiff respectfully requests leave to amend his Complaint to include the content of the
Amended Complaint. To the extent that the Commission Defendants have identified any
pleading deficiencies in the Amended Complaint, Plaintiffs requests leave to file a further
Amended Complaint.

- 14 -

CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court deny the
Commission Defendants’ Partial Motion to Dismiss, and allow Plaintiff to proceed to
discovery in order to prove his claims. Should this Court decide to grant the Commission
Defendants’ Partial Motion to Dismiss, Plaintiff respectfully requests these claims be
dismissed with leave to amend to correct any pleading deficiencies and/or otherwise
conform pleadings to the evidence. See Canterbury v. J. P. Morgan Mortgage Acquisition
Corporation, Memorandum Opinion, Civil Action No. 3:10-cv-54, (W.D. Va., March 30,
2011) citing Ostrzenski v. Siegel,177 F.3d 245, 252-53 (4th Cir. 1999); Harden v.
Montgomery County, No. 8:09-CV-031666, 2010 WL 3938326, at *3 n.3 (D. Md. Oct. 6,
2010).
Dated: May 27, 2011
Respectfully Submitted,
AARON TOBEY
By:

/s/ James J. Knicely___________________
James J. Knicely (VSB #19356)
Robert Luther III (VSB #78766)
KNICELY & ASSOCIATES, P.C.
487 McLaws Circle, Suite 2
Williamsburg, Virginia 23185
Anand Agneshwar
Alan C. Veronick
ARNOLD & PORTER, LLP
399 Park Avenue
New York, New York 10022-4690
Of Counsel
John W. Whitehead (VSB # 20361)
Douglas R. McKusick (VSB # 72201)
The Rutherford Institute

- 15 -

1440 Sachem Place
Charlottesville, Virginia 22906
Of Counsel
Attorneys for Plaintiff, AARON TOBEY
CERTIFICATE OF SERVICE
I hereby certify that on May 27, 2011, the foregoing Plaintiff’s Opposition And
Memorandum Of Law In Opposition To Defendants’ Partial Motion To Dismiss was
electronically filed with the Clerk of Court using the CM/ECF system, which will send
notification of such filing to:
Carlotta P. Wells, Esquire
U.S. Department of Justice – Civil Division
20 Massachusetts Avenue NW – Rm. 7152
Washington, D.C. 20530
[e-mail]
Debra J. Prillaman, Esquire
Robin Perrin Meier, Esquire
Office of the United States Attorney for the Eastern District of Virginia
600 East Main St., Suite 1800 Richmond, Virginia
23219-2447
[e-mail]
[e-mail]
Paul W. Jacobs, II, Esquire
Henry I. Willett, Esquire
Belinda D. Jones, Esquire
CHRISTIAN & BARTON, LLP
909 East Main St., Suite 1200
Richmond, Virginia 23219-3095
[e-mail]
[e-mail]
[e-mail]
Respectfully Submitted,
By:

/s/ James J. Knicely___________________
James J. Knicely (VSB #19356)
KNICELY & ASSOCIATES, P.C.
487 McLaws Circle, Suite 2
Williamsburg, Virginia 23185
[phone] (phone)
[phone] (fax)
- 16 -