Raub v. Bowen et al
Filing
118
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 2/28/2014. Copies to counsel of record.(cmcc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
BRANDON RAUB,
Plaintiff,
Civil Action No. 3:13CV328-HEH
MICHAEL CAMPBELL,
Defendant.
MEMORANDUM OPINION
(Defendant's Motion for Summary Judgment)
This is a civil rights action brought under 42 U.S.C. § 1983 against Michael
Campbell ("Campbell"), a Chesterfield County mental health clinician, alleging
violations of Plaintiffs First and Fourth Amendment rights. In essence, Plaintiff claims
that as a result of Campbell's inept mental evaluation, Plaintiff was detained without
probable cause, pending a more comprehensive mental assessment. Plaintiffs core
contentions are that Campbell misconstrued his comments and actions as posing a threat
of imminent danger as a result of mental illness. His allegations hinge in large part on the
opinion of a practicing psychologist who, after a retrospective analysis, disagrees with
Campbell's conclusion. Moreover, Plaintiff alleges that the law enforcement officers'
actions, abetted by Campbell, were intended to suppress his First Amendment right to
criticize policies of the United States.
The case is presently before the Court on the remaining defendant,1 Campbell's
Motion for Summary Judgment, premised primarily on his contention that he is entitled
to qualified immunity on the constitutional claims. Both parties have filed extensive
memoranda supporting their respective positions. The Court heard oral argument on
February 18, 2014. For the reasons that follow, Campbell's Motion for Summary
Judgment will be granted.
This case evolves from a communication sent to the Federal Bureau of
Investigation by an individual who had previously served with Plaintiff Brandon Raub
("Raub") in the U.S. Marine Corps concerning disturbing information posted by Raub on
the Internet. This individual described Raub's postings as being increasingly threatening
in tone. (Def.'s Mem. Support Mot. Summ. J., Ex. B, Paris Dep. at 44:11-13, ECF No.
90-2; and Ex. F, Campbell Dep. at 41:18-20, ECF No. 90-6.)
Several days later, on August 15, 2012, an FBI agent requested that Detective
Michael Paris ("Detective Paris") conduct a review of Chesterfield County Police
Department records to determine what, if any, prior contact they had with Raub. At that
time, Detective Paris was on detail to the FBI Joint Terrorism Task Force. Later that
same day, Howard Bullen ("Bullen"), another former Marine who had served with Raub
in Iraq, contacted the FBI to express his concern about Raub's unsettling behavior and
threatening communications. Suspecting that Raub may be contemplating violent acts,
1In its original form, the complaint in thiscase encompassed a host of other federal and state law
enforcement officials. Following discovery, the other defendants were dismissed by Plaintiff.
2Plaintiff requested leave to file anamended complaint adding claims for negligence and false
imprisonment. This request was denied by Memorandum Opinion and Order dated January 14,
2014, on the ground that the amended complaint, as submitted, failed to plead a plausible claim
on either theory. (ECFNos. 107, 108.)
Bullen relayed a number of Raub's postings to the FBI. (Paris Dep. at 44.) These
postings revealed comments by Raub that he would be chosen to lead "the revolution"
and that "[m]en will be at my door soon to pick me up to lead it." (Campbell Dep. at
49:22-23.) The Facebook postings sent by Bullen to the FBI also included the following
comments:
"I'm gunning whoever run the town." (August 13, 2012)
"This is the start of you dying
" (August 14, 2012)
"Richmond is not yours. I'm about to shake some shit up." (August 14,
2012)
"This is revenge. Know that before you die." (August 15, 2012)
(Id. at 49:6-14; Paris Dep. at Ex. 7 thereto.)
Bullen further advised the FBI that in his view, Raub's Facebook postings had
become increasingly threatening and action-oriented. Bullen expressed to the FBI his
concern that Raub's postings were "possibly more than just extremist rhetoric" and that
he personally felt Raub genuinely believed in this and was not simply looking for
attention. (Paris Dep. at 44:12-13; Ex. 7 thereto.) The following day, August 16, 2012,
the above described e-mail traffic was forwarded to Detective Paris. (Id. at Ex. 7
thereto.)
Disturbed by Raub's postings, the FBI agent supervising the Joint Terrorism Task
Force requested that Chesterfield County police officers, accompanied by FBI agents,
conduct an interview of Raub to determine if he posed a serious risk of violence. (Id. at
47:4-48:22.) According to Paris, the supervising FBI agent instructed him that "[t]he
postings are a little more volatile. They're getting a little bit more violent oriented and
we can't wait until Friday. We've got to go tonight." (Id. at 54:9-14.) Later that
evening, a team of law enforcement officers was assembled to perform that task. The
group was comprised of three Chesterfield officers, including Detective Paris, three FBI
agents, and a secret service agent.3 As Detective Paris explained, "[i]t was determined
that contact would be made to determine ... whether Brandon Raub was capable of acts
of violence to the public or ... to determine if there was a need for Crisis Intervention to
conduct an evaluation." (Id. at 48:18-22.)
Following preliminary planning, Detective Paris, along with an FBI agent,
conducted a conversation with Raub in the doorway of his residence. When asked
whether he intended to carry out the violent acts mentioned on his Facebook post, Raub
gave evasive responses. (Id. at 70:1-3.) At one point during the interview, Raub
advised Detective Paris and the agent that the federal government launched a missile into
the pentagon and that there was no airplane that flew into the structure on 9/11. (Id. at
96:12-14.) Raub also inquired why the FBI was not taking action against government
officials for their crimes against American citizens. (Id. at Exs. 1 and 2 thereto.) He
further stated that the federal government flies planes over people's houses, exposing
them to the radioactive substance thorium. (Id.)
The interview conducted of Raub did little to allay their concerns. At its
conclusion, the FBI agent advised Detective Paris, that "[w]e need to get this guy
3In Detective Paris' opinion, Raub's comments about both former Presidents Bush were
sufficiently threatening in tone to warrant notification of the U.S. Secret Service. (Id. at 47:5-7.)
evaluated." (Id. at 66:24-67:1.) Detective Paris concurred. (Id. at 33:21-22; 66:24-
67:l-2.)4
At approximately 7:15 p.m. on August 16, 2012, Campbell was in his office at the
Chesterfield County Department of Mental Health Support Services. (Campbell Dep. at
Ex. A thereto.) He received a telephone call from the Chesterfield County Emergency
Communication Center requesting that he contact Detective Paris. (Id. at Ex. A thereto;
25:7-8.) Campbell promptly placed the call and was advised by Detective Paris that he
was assisting the FBI and Secret Service in an investigation of Raub. Detective Paris
informed Campbell that in company with other Chesterfield officers and federal agents,
he had just completed an interview of Raub at Raub's residence. According to Campbell,
he received the following information:
Detective Paris informed me that Mr. Raub had made on-line threats about
killing people, that he believed that the United States Government had
perpetrated the September 11, 2001, terrorist attacks on the World Trade
Center and the Pentagon, and that he believed that the government was
committing atrocities on American citizens by dropping a radioactive
substance called thorium on them from airplanes. Detective Paris indicated
to me that the statements and threats were made over the Internet, and he
described the language of some of the threats to me. Although I do not
remember the exact wording of any of the threats now, they were specific
threats of violent action against human beings.
(Id. at 86:9-22.)
Detective Paris also advised Campbell that the FBI had received information from
another individual who had served with Raub in the U.S. Marine Corps. This individual
4Detective Paris also contacted both the Chesterfield Commonwealth's Attorney's Office and
the United States Attorney's Office for advice as to whether Raub had violated any state or
federal law. Both responded negatively. (Id. at 50:6-51:3; 72:21-73:3.)
described Raub's behavior as recently becoming more extreme. Detective Paris informed
Campbell that there were "several Marines that were concerned, several Marines that
knew Brandon, knew how effective he was, how, you know, he was an expert with
explosives, and in his current communications with them, they felt that he was at extreme
risk of doing something to hurt people." (Id. at 78:12-17.)
During their fifteen minute conversation, at Campbell's request, Detective Paris
also described Raub's behavior and rapid mood swings. Detective Paris characterized
Raub as preoccupied and distracted.
Mr. Raub would make eye contact with Detective Paris for a few seconds,
but then his eyes would rove away while he continued to talk before
returning to Detective Paris. In my professional experience, this
phenomenon can sometimes be evidence of psychosis. It can indicate that
the subject is distracted by some internal stimulus. Detective Paris also
informed me that Mr. Raub had rapid mood swings during their
conversation - another common symptom of instability - and that when
Detective Paris asked him about the specific threats which he had made,
Mr. Raub would not answer his questions.
(Def.'s Mem. Support Summ. J., Ex. E, Campbell's Ans. to Interrogs. at 3, ECF No. 90-
5.) Campbell found these observations by Detective Paris to have significance in his
evaluation.
At this point, Detective Paris and Special Agent Terry Granger ("Special Agent
Granger") of the FBI, who assisted him with the interview, concluded "we need to get
this guy evaluated. You know, we can't leave here without doing something." (Paris
Dep. at 33:20-22; 66:24-67:2.) When Detective Paris sought Campbell's guidance, he
concurred that an evaluation was appropriate. (Campbell's Ans. to Interrogs. at 4.)
Detective Paris also advised Campbell that he "believed that Mr. Raub represented a
threat in some form to harm other individuals." (Paris Dep. at 71:11-13.) Detective
Paris concluded that there was probable cause to detain Raub for a mental health
evaluation under Va. Code § 37.2-808(8).5 (Campbell's Ans. to Interrogs. at 2.) Raub
was then transported to the Chesterfield County Detention Center for a mental evaluation.
Subsequently that evening, Raub was interviewed by Campbell for approximately
fifteen minutes, at which point Raub stated he chose "not to answer any more questions."
(Campbell Dep. at 46:22-23.) During the interview, Raub demonstrated what Campbell
perceived to be symptoms of paranoia as evidenced by his statement that he believed that
the U.S. government caused the atrocities of 9/11. (Id. at 45:5-8.) Raub also
demonstrated what Campbell described as red flags during the interview. For example,
Campbell identified what he considered to be unpredictable behavior: "drastically
changed their baseline thinking and blaming this on the government, blaming atrocities
on the government, exploding the Pentagon by the government and feeling that he has
Va. Code § 37.2-808 provides in pertinent part:
(A) Any magistrate shall issue, upon the sworn petition of any responsible
person, treating physician, or upon his own motion, an emergency custody order
when he has probable cause to believe that any person (i) has a mental illness and
that there exists a substantial likelihood that, as a result of mental illness, the
person will, in the near future, (a) cause serious physical harm to himself or others
as evidenced by recent behavior causing, attempting, or threatening harm and
other relevant information, if any, or (b) suffer serious harm due to his lack of
capacity to protect himself from harm or to provide for his basic human needs, (ii)
is in need of hospitalization or treatment, and (iii) is unwilling to volunteer or
incapable of volunteering for hospitalization or treatment....
(G) A law-enforcement officer who, based upon his observation or the reliable
reports of others, has probable cause to believe that a person meets the criteria for
emergency custody as stated in this section may take that person into custody and
transport that person to an appropriate location to assess the need for
hospitalization or treatment without prior authorization.
been somehow chosen to be a leader of this oncoming revolution to me is unpredictable
behaviors." (Id. at 48:3-8.)
At the end of his interview with Raub, Campbell initially was hesitant to conclude
that either the Internet postings described to him or the threats were sufficient in his
opinion to warrant a temporary detention order. Campbell then asked the Secret Service
agent to provide him with copies of the e-mails from the two individuals who had
previously served with Raub in the Marine Corps. After reviewing the postings in more
detail, Campbell found these communications to be extremely disturbing.
These e-mails included the following statements:
"This is revenge. Know that before you die."
"Richmond is not yours. I'm about to shake some shit up."
"This is the start of you dying. Planned spittin with heart of a lion."
"Leader of the New School. Bringing back the Old School. My life will be
a documentary."
"I'm gunning whoever run the town."
"W, you're under arrest bitch."
"The world will find this."
"I know ya'll are reading this, and I truly wonder if you know what's about
to happen."
"W, you'll be one of the first people dragged out of your house and
arrested."
"And daddy Bush too."
"The revolution will come for me. Men will be at my door soon to pick me
up to lead it."
"You should understand that many of the things I have said here are for the
world to see."
(Campbell Dep. at 49:6-25.)
After reviewing the e-mails in context of the other information before him,
Campbell concluded that the threats were sufficiently specific to warrant action.
Campbell also determined that Raub exhibited symptoms of paranoia:
8
I see someone is paranoid when they feel that they are being watched and
being marked and being the potential risk that's going on in his mind; that
he's going to be this leader of a revolution, that he's been chosen for it and
that the United States Government knows this.
(Id. at 54:11-16.) In Campbell's view the presentation was also consistent with
delusional thinking. "The idea that the United States Government is dropping thorium
through jet trails is delusional. The fact that the United States sent a missile into the
Pentagon is delusional. The fact that he feels that he has been chosen to lead this
revolution is delusional thinking." (Id. at 55:8-13.)
In Campbell's opinion, Raub also demonstrated symptoms of homicidal ideation,
and in Campbell's view, presented a potential threat. "When he terminated the
conversation, I asked him, you know, do you feel justified in the statements that you have
made and the risk of other people.... He said something on the lines of, '[i]f you knew'
- 'if you know what I knew, wouldn't you?'" (Id. at 65:1-6.) Before concluding his
assessment, Campbell called Raub's mother to gain her perspective. She reported no
apparent changes in behavior recently. She also added that "a lot of us" share his
political views. (Id. at 44:23-25; 60:24-61:10.)
At this point, Campbell was convinced that Raub satisfied the standards set forth
in Virginia Code § 37.2-809 for the issuance of a temporary detention order to enable
Raub to receive further evaluation and mental health treatment.6 Campbell then
6Va. Code § 37.2-809(B) sets for the standard for issuance of temporary detention orders. It
reads in pertinent part:
A magistrate shall issue, upon the sworn petition of any responsible person,
treating physician, or upon his own motion and only after an evaluation conducted
in-person or by means of two-way electronic video and audio communication
completed preparation of his prescreening report, arranged for Raub's admission to the
John Randolph Medical Center for follow-up examination, and prepared the petition for a
temporary detention order. The petition was presented to the Chesterfield County
magistrate, who made the requisite finding of probable cause, issued a temporary
detention order for Raub, who was then transferred to the John Randolph Medical Center
for further evaluation.7 Raub was eventually released by order of the Circuit Court for
the City of Hopewell, Virginia. This lawsuit seeking compensatory and punitive
damages followed.
In his Second Amended Complaint, alleging violations of the First, Fourth and/or
Fourteenth Amendments to the U.S. Constitution, Raub maintains that his detention and
examination were without probable cause and that there was a lack of evidence of mental
illness to justify further evaluation. He also contends that Campbell's actions were
intended to suppress offensive political speech guaranteed by the First Amendment to the
U.S. Constitution. Based on the information and clinical impressions available on
August 16, 2012, Raub contends that Campbell was grossly negligent in filing the
petition for involuntary treatment.
system ... by an employee or a designee of the local community services board to
determine whether the person meets the criteria for temporary detention, a
temporary detention order if it appears from all the evidence readily available,
including any recommendation from a physician or clinical psychologist treating
the person, that the person [meets the standards set forth in § 37.2-808].
7Following his evaluation at John Randolph Medical Center, mental health officials from that
facility presented a second Petition for Involuntary Admission for Treatment to a separate
Special Justice. This Petition was granted and Raub was transferred to Salem Veterans
Administration Medical Center. (Second Am. Compl. ffl[ 29-31, ECF No. 112.)
10
The Fourth Amendment requires that an involuntary hospitalization may be
ordered "only upon probable cause, that is, only if there are reasonable grounds for
believing that the person seized is subject to seizure under the governing legal standard."
Villanova v. Abrams, 972 F.2d 792, 795 (7th Cir. 1992). Raub's Fourth Amendment
claim has two distinct strands. First, he contends that Campbell was responsible for a
deprivation of his right to liberty when he was detained by two officers at his home at the
direction of Campbell. Separately, Raub alleges that he was deprived of liberty when
Campbell petitioned for a temporary detention order based on his flawed prescreening
report. He argues that Campbell's negligent deprivation of his liberty bars qualified
immunity.
In essence, Raub's claims are predicated on his belief that his personal
presentation, comments, and threatening e-mails were insufficient to warrant detention
for evaluation under Virginia law. Specifically, that there was "a substantial likelihood
that, as a result of mental illness, [Raub] will, in the near future, (a) cause serious
physical harm to himself or others ...." Va. Code § 37.2-808(A). Raub appears to
suggest that Campbell should have found his comments and behavior to be
inconsequential political commentary embraced by a number of citizens. Raub contends
that "[b]y impermissibly conflating politics and psychology, Campbell caused Raub to be
detained for his political views, not his mental condition." (PL's Supplemental Mem. in
Opp'n at 9, ECF No. 113.) Furthermore, Raub adds "[n]or does it constitute mental
illness to express a desire to participate - or even lead - a revolution against a
government perceived as overbearing and tyrannical." (Id. at 8.) This is the basis of his
11
First Amendment claim. Raub's reasoning is strained and strategically teases out the
more ominous language of the e-mails from his analysis.
Central to Raub's position is the expert report of Catherine E. Martin, Ph.D. ("Dr.
Martin"), a clinical psychologist with offices in Midlothian, Virginia. Dr. Martin, after
reviewing the record evidence and conducting an hour and a half long interview,
concluded that Raub exhibited no signs of mental illness, delusion, or abnormalities. In
Dr. Martin's opinion, the e-mail postings were too non-specific to constitute threats in the
clinical sense. She also added that "[i]t is notable that in the 14-months that have elapsed
since August 2012 and my interview, Raub has had no reportable incidents, no need for
treatment and no medication prescribed for any mental health issues." (PL's Mot. Leave
File Second Amended CompL, Ex. B, Martin's Report at 22, ECF No. 101-4.)
Ultimately, Dr. Martin concluded that "[g]iven the lack of evidence of mental
illness, it was a violation of professional standards - and grossly negligent - for
Campbell to file the Petition for Involuntary Treatment against Raub." (Id. at 21.) Of
course, Dr. Martin's impressions are the product of an in depth retrospective review of
the record, coupled with the benefit of Raub's post-evaluation behavior. Campbell, on
the other hand, conducted an emergency evaluation based on the information at hand.9
8In her expert report, Dr. Martin listed the materials she relied upon in formulating her opinion.
These included two video tapes and fifteen documents consisting of deposition transcripts,
statements of witnesses, petitions, as well as pre- and post-detention medical reports. (PL's
Supplemental Mem., Ex. A at 2-3.)
9In determining whether the decisions made by Campbell were objectively reasonable, the court
makes the assessment based on how the situation was viewed by a mental health evaluator, not
an experienced psychotherapist. See Reichle v. Howards,
U.S.
, 132 S. Ct. 2088,2093
(2012).
12
Unfortunately for Campbell, the exigencies of the situation did not permit lengthy
deliberation.
The standard for review of summary judgment motions is well established in the
Fourth Circuit. Summary judgment is appropriate only if the record shows "there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law." Fed. R. Civ. P. 56(a). The evidentiary basis on which such motions are resolved
include pleadings, depositions, answers to interrogatories, admissions on file, together
with affidavits, if any. Fed. R. Civ. P. 56(c). As the United States Supreme Court
pointed out in Anderson v. Liberty Lobby, Inc., the relevant inquiry in a summary
judgment analysis is "whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law." 477 U.S. 242, 251-52 (1986). In reviewing a motion for summary judgment,
the court must view the facts in the light most favorable to the nonmoving party—here,
Raub. Id. at 255.
Once a motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "[T]he mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact." Anderson, All U.S. at 247-48 (emphasis in original). The court
must grant summary judgment if the nonmoving party "fails to make a showing sufficient
to establish the existence of an element essential to that party's case, and on which that
13
party will bear the burden of proof at trial." Celotox Corp. v. Catrett, All U.S. 317, 322
(1986). To defeat an otherwise properly supported motion for summary judgment, the
nonmoving party must rely on more than conclusory allegations, "mere speculation," or
the "building of one inference upon another," the "mere existence of a scintilla of
evidence," or the appearance of some "metaphysical doubt" concerning a material fact.
Lewis v. City ofVa. Beach Sheriff's Office, 409 F. Supp. 2d 696, 704 (E.D. Va. 2006)
(citations omitted). In meeting this burden, the nonmoving party must "go beyond the
pleadings" and present affidavits or designate specific facts in depositions, answer to
interrogatories, and admissions on file to establish a genuine issue of material fact.
Celotox Corp., All U.S. at 324.
While there is spirited debate in the immediate case about the legal significance of
the facts and Campbell's diagnostic impressions and conclusions, the material facts
themselves do not appear to be in serious dispute. Campbell's Motion for Summary
Judgment is principally predicated on his argument that he is entitled to qualified
immunity.10 Although he adamantly contends that there was no constitutional violation
on his part, Campbell stresses that the constitutional concept of probable cause in the
mental health context was—and still is—far from clearly established. The standard for
determining whether a person poses a serious threat of public danger is an inexact
science, hence, a quintessential gray area.
10 Ordinarily, no factual findings are necessary to the analysis ofa qualified immunity claim
because "the [] issue is a purely legal one: whether the facts alleged (by the plaintiff, or, in some
cases, the defendant) support a claim of violation of clearly established law." Mitchell v.
Forsyth, All U.S. 511, 528 n.9 (1985); accord Elder v. Holloway, 510 U.S. 510,516 (1994).
14
Qualified immunity "shield[s] [officials] from civil damages liability as long as
their actions could reasonably have been thought consistent with the rights they are
alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987).
To determine whether Raub's claims can survive a qualified immunity-based
challenge, the Court will follow the two-step inquiry laid out in Saucier v. Katz, 533 U.S.
194, 201 (2001). This analytical framework requires the court to determine initially
whether there has been a constitutional violation, and second, whether the right violated
was clearly established. Id.; see also Melgar v. Greene, 593 F.3d 348, 353 (4th Cir.
2010). The "dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable [official] that his conduct was unlawful in the
situation he confronted."" Saucier, 533 U.S. at 202. "Ordinarily, in order for the law to
be clearly established, there must be a Supreme Court or [Fourth Circuit] decision on
point...." Oliver v. Woods, 209 F.3d 1179, 1185 (10th Cir. 2000) (citations omitted);
see Wilson v. Layne, 141 F.3d 111,117 (4th Cir. 1998). As the Supreme Court
recognized in Ashcroft v. al-Kidd, although "[w]e do not require a case directly on point.
.. existing precedent must have placed the statutory or constitutional question beyond
debate.
U.S.
, 131 S. Ct. 2074,2083 (2011).
In John Doe v. Broderick, Chief Judge Traxler provided instructive guidance on
the rationale underlying qualified immunity:
" In reviewing the situation Campbell confronted, it is important to be mindful ofthe public
consequences if his decision had been different and Raub had decided to gun "whoever run the
town." (Campbell Dep. at 49:14.) Dr. Martin's thought process was not encumbered by these
high stakes. And, unlike Dr. Martin, Campbell did not have the benefit of hindsight.
15
"Qualified immunity thus provides a 'safe-harbor' from tort damages for
police officers performing objectivelyreasonable actions in furtherance of
their duties." This "safe-harbor" ensures that officers will not be liable for
"bad guesses in gray areas" but only for "transgressing bright lines." Of
course, officers are not afforded protection when they are "plainly
incompetent or ... knowingly violate the law." But, in gray areas, where
the law is unsettled or murky, qualified immunity affords protection to an
officer who takes an action that is not clearly forbidden ~ even if the action
is later deemed wrongful. Simply put, qualified immunity exists to protect
those officers who reasonably believe that their actions do not violate
federal law.
225 F.3d 440,453 (4th Cir. 2000) (emphasis in original) (citations omitted).
"[T]he basic purpose of qualified immunity [] is to spare individual officials the
burdens and uncertainties of standing trial in those instances where their conduct would
strike an objective observer as falling within the range of reasonable judgment." Gooden
v. Howard County, 954 F.2d 960, 965 (4th Cir. 1992) (en banc) (citing Anderson v.
Creighton, 483 U.S. 635, 638 (1987)).
Given the finite well of authority dealing directly with the application of the
probable cause standard to mental health officials, Raub draws an analogy to its use in the
law enforcement context. The contours of the standard as applied here, however, are
necessarily animated by the text of Virginia Code §§ 37.2-808 and 809. In the mental
health context, the concept of probable cause focuses on the more nebulous issues of
mental illness and potentiality of violence, rather than an assessment of clearly articulated
facts and circumstances. While the distinction may seem subtle, it is quite significant. In
the final analysis, the issue distills to whether a reasonable person, exercising
professional judgment and possessing the information at hand, would have concluded that
Raub, as a result of mental illness, posed an imminent threat to others.
16
A comprehensive survey of the legal landscape yields no well-lit path of analysis
from either the Supreme Court12 orthe Fourth Circuit. Unlike reported cases in the
Fourth Circuit discussing the entitlement of private mental evaluators to qualified
immunity in connection with involuntary commitment proceedings, Campbell is clearly a
state actor. See Hall v. Quillen, 631 F.2d 1154, 1156 (4th Cir. 1980); S.P. v. City of
Takoma Park, Md, 134 F.3d 260,269-70 (4th Cir. 1998) (finding court appointed
private physician not to be a state actor). While sparse, cases from other circuits have
upheld qualified immunity for government officials conducting such examinations when
their actions are objectively reasonable. See Glass v. Mayas, 984 F.2d 55, 58 (2d Cir.
1993); Scott v. Hern, 216 F.3d 897, 910 (10th Cir. 2000).
Despite the absence of authority squarely on point, the Fourth Circuit has provided
some edification in the context of law enforcement officers detaining individuals for
mental evaluation. However, aside from the distinction noted above, it is important to
keep in mind that Campbell had no statutory power to detain—only to evaluate and
recommend. His petition, which was comparable to a police officer's affidavit in support
of a search warrant, contained only a recitation of his observations, diagnostic
impressions, and recommendation.I3
12 In O'Connor v. Donaldson, All U.S. 563, 576-77 (1975), the court discussed the
constitutional implications of long term confinement of non-dangerous individuals. Its teachings
have no direct application here.
13 Typically a law enforcement officer who truthfully presents the results of his investigation to a
magistrate, who in turn finds probable cause and issues a warrant, is entitled to qualified
immunity—even if other officers disagree as to the thoroughness of the investigation. See
Porterfieldv. Lott, 156 F.3d 563, 567-69 (4th Cir. 1998); Torchinsky v. Siwinski, 942 F.2d 257,
263-64 (4th Cir. 1991). In the immediate case, there appears to be no question as to the
17
In Gooden v. HowardCounty, police officers were summoned to an apartment
complex to investigate reports of loud screaming and yelling. 954 F.2d at 962. The
officers were directed to Gooden's apartment, but left the premises after she denied being
the source of the commotion. The officers returned to the apartment about one week later
on reports of a long, loud, blood-chilling scream emanating from Gooden's unit. Id. at
962-63. As they approached the door of her apartment, the officers heard a scream from
within. When confronted, Gooden initially denied any knowledge of the noise, but
eventually admitted that she had "yelped" after she accidently burned herself on an iron.
Id. at 962. Gooden declined assistance and asked the officers to leave her apartment. Id.
The officers next interviewed the neighbor who had complained about the noise from
Gooden's unit. Id. at 963. During their conversation with that individual, the officers
heard loud "thuds" and additional screaming from Gooden's apartment. Id. The officers
took particular note of the varying voice tones and believed that they might be the
product of multiple personalities exhibited by Gooden herself. Id. They returned to her
apartment and confronted Gooden, who appeared to have been crying and acting
"strangely." Id.
Concluding that Gooden might be a danger to herself, the officers detained her for
a mental examination. Id. Similar to the immediate case, upon subsequent examination,
truthfulness of Campbell's factual representations to the magistrate. At issue are his diagnostic
impressions and the manner in which he conducted his evaluation.
Raub's contention that Campbell's failure to advise the magistrate that "Raub's mother,
with whom he resides, 'has not seen any changes or psychotic behavior in [Raub]"' does not
constitute a material omission. (PL's Supplemental Mem. at 7.) As discussed infra, Campbell's
decision to file the Petition for a Temporary Detention Order was premised on the threatening
nature of the e-mails. It was not unreasonable for Campbell to discount Raub's mother's opinion
of her son.
18
a doctor found no sign of mental illness and released her. Id. at 964. Gooden filed suit
under 42 U.S.C. § 1983 and officers invoked qualified immunity. The district court
initially denied qualified immunity as did a divided panel of the Fourth Circuit. Id.
However, on rehearing en banc, the Fourth Circuit reversed, holding that "[i]n cases
where officers are hurriedly called to the scene of a disturbance, the reasonableness of
their response must be gauged against the reasonableness of their perceptions, not against
what may later be found to have actually have taken place." Id. at 965. In its opinion,
the Fourth Circuit focused not on the clinical correctness of the officers' perceptions, but
whether their perceptions were reasonable. Id. The Fourth Circuit concluded that under
these circumstances, "the officers can hardly be faulted for taking action against what
they reasonably perceived to be a genuine danger to the residents ... or to Ms. Gooden
herself." Id. at 966.
In S.P. v. City ofTakoma Park, the court again had an opportunity to discuss
qualified immunity in the context of a detention for a mental examination. In this case, a
husband and wife had been engaged in a heated argument eventually causing the husband
to leave the house. 134 F.3d 260, 264 (4th Cir. 1998). The husband contacted the
Takoma Park Police Department and persuaded the dispatcher to send officers to the
home to check on the possibility that his wife may be suicidal. Upon their arrival, the
officers found the wife to be "visibly agitated and crying" about a "painful argument" she
had with her husband. Id. She advised the responding officers that "if it was not for her
kids, she would end her life." Id. at 264. At the direction of their supervisor, and over the
wife's protestations, the officers detained her and transported her to a hospital for a
19
mental evaluation. Initially, mental health professionals concluded that the wife was
clinically depressed and suicidal. However, a psychiatrist subsequently conducted a
complete psychiatric examination and concluded that the initial impression of the mental
health professional was incorrect. Id. at 264-65. The wife was released and
subsequently filed a civil rights suit against the Takoma Park police officers.
The Fourth Circuit, in finding the officers' conduct to be objectively reasonable,
emphasized that "[t]he police officers did not decide to detain [the wife] in haste. Rather,
they had ample opportunity to observe and interview [the wife] before making a
deliberate decision [to detain her]... Reasonable officers, relying upon our decision in
Gooden and the other circuit court decisions addressing similar situations, would have
concluded that involuntarily detaining [the wife] was not only reasonable, but prudent."
Id. at 267.
More recently, in the case of Cloaninger v. McDevitt, the Fourth Circuit again
upheld a grant of qualified immunity for a police officer's observations and independent
knowledge confirming the potentially dangerous nature of the situation at hand. In
Cloaninger, officers responded to reports of an individual threatening suicide. 555 F.3d
324, 328 (4th Cir. 2009). One of the officers had previously encountered Cloaninger and
was aware of prior threats of suicide. Other officers oftheir department responding to
threats of suicide on another occasion had found firearms in his residence. Cloaninger
was uncooperative and demanded that the officers leave his property. Id.
When the responding officers were unsuccessful in communicating with
Cloaninger, they summoned their supervisor. The supervisor attempted to communicate
20
with Cloaninger both through the doorway and by telephone. Cloaninger demanded to be
taken to the VA hospital. When the officers declined, he ordered them off his property,
threatening to "kill them all and then kill himself." Id. When the officers contacted the
VA hospital for guidance, a nurse advised them that she was familiar with Cloaninger
and that he had a history of calling the hospital and threatening suicide. Id. When the
officers suggested the necessity for an emergency commitment order, the nurse
concurred. Cloaninger was then taken into custody and transported to the magistrate's
office, where an emergency commitment order was issued. Id. at 328-29. Cloaninger
subsequently filed a complaint under 42 U.S.C. § 1983 claiming that the officers had
violated his Fourth and Fourteenth Amendment rights. The Fourth Circuit concluded that
"the circumstances facing the defendants were exigent and we hold that the undisputed
facts in this case establish that the officers' conduct was objectively reasonable." Id. at
334.
On the other hand, in Bailey v. Kennedy, the Fourth Circuit rejected a qualified
immunity claim where officers acted solely on a neighbor's report that plaintiff was
drunk and possibly suicidal. 349 F.3d 731, 742 (4th Cir. 2003). When an officer
responded to Bailey's home, he found him to be intoxicated, but otherwise cooperative
and nonviolent. Id. at 740. After conferring with other officers who arrived at the scene,
Bailey was detained for a mental health evaluation. The Fourth Circuit concluded,
"accepting the facts as the district court viewed them, the 911 report, viewed together
with the events after the police officers arrived, was insufficient to establish probable
cause to detain [Bailey] for an emergency mental evaluation." Id. at 741. Pivotal to the
21
Fourth Circuit's holding was the absence of any observations by the officers indicating
any danger to Bailey or anyone else. The lack of any articulable manifestations of
danger, in that court's view, precluded a finding that the officers' actions were
objectively reasonable. Id. at 740-41. That is not the case here.
Campbell was able to particularize the factual basis for his conclusions, including
specific comments by Raub, supporting his findings. Under these circumstances, his
conclusions and actions were objectively reasonable. To fully assess Campbell's
evaluation of Raub, it is important to be mindful of the necessity for an immediate
decision. In addition to the e-mails and his personal observations, Campbell relied on
impressions of seasoned police officers, FBI agents, and former Marines who had served
with Raub. Raub's Marine colleagues had an experiential basis for their observations.
The other facet of Raub's constitutional claim alleges a deprivation of right to
freedom of speech under the First Amendment. Specifically, he contends that "[t]he
actions of Campbell... were an effort to discredit, silence and punish Raub for the
content and viewpoint of his political speech using the pretextual and false allegation that
Raub was suffering from a mental illness and was subject to involuntary commitment
under Virginia law." (Second Am. Compl. ^ 48.) "Premised on mistrust of
governmental power, the First Amendment stands against attempts to disfavor certain
subjects or viewpoints." Citizens United v. FEC, 558 U.S. 310, 340 (2010).
Raub's First Amendment claim is founded on his belief that Campbell based his
finding of dangerousness and sought a temporary detention order solely because of
Raub's somewhat unorthodox political beliefs. During their initial conversation,
22
Detective Paris advised Campbell that Raub "believed that the United States government
had perpetrated the September 11, 2001 terrorist attacks on the World Trade Center and
the Pentagon, and that he believed that the government was committing atrocities on
American citizens by dropping a radioactive substance called [t]horium on them from
airplanes." (Campbell Ans. to Interrogs. at 2.) Raub also informed Campbell that "a
revolution was about to begin and that he was going to lead it." (Campbell Ans. to
Interrogs. at 5.) In Campbell's view, such beliefs were suggestive of delusional thinking
and paranoia. (Campbell Dep. at 54:1, 11-17; 55:7-13.)
These comments, however, were not the specific basis for Campbell's conclusion
that Raub's comments and behavior were sufficiently threatening to warrant application
for a temporary detention order. Before he made that decision, Campbell insisted on
reviewing the actual e-mails from Raub's fellow Marines received by the FBI.
(Campbell Ans. to Interrogs. at 5-6.) "After I read this email, I was convinced that Mr.
Raub met the standards under Va. Code § 37.2-809 for the issuance of a temporary
detention order
" (Id. at 6; Campbell Dep. at 49:3-50:13.)
Although Campbell found Raub's political musings to be detached from reality
and indicative of delusional thinking, it was the threatening tenor of his e-mails that
formed an independent factual basis for Campbell's finding of probable cause. Even
though Dr. Martin would have reached a different conclusion, the factual basis for
Campbell's actions are unrebutted in the record evidence. Unlike Dr. Martin, an
improvident decision by Campbell could have had tragic consequences.
23
Given the collective information presented to Campbell, and the results of his
interview with Raub, Campbell's decision as a mental health evaluator to seek a
temporary detention order was objectively reasonable, irrespective of Raub's political
beliefs. Raub's assertion that Campbell, in league with the Chesterfield County Police
Department and the FBI, was involved in a conspiracy to suppress dissident speech is
unsupported by the evidence—and frankly, far-fetched.14
Aside from Raub's failure to advance any factual basis to support an actionable
First Amendment claim on the record at hand, he has failed to demonstrate a violation of
a clearly established right. Saucier, 533 U.S. at 200. As the Fourth Circuit noted in
Tobey v. Jones, "[i]n Reichel, an appeal from summary judgment, the Supreme Court
found that it was not clearly established that a plaintiff could make out a cognizable First
Amendment claim for an arrest that was supported by probable cause." 706 F.3d 379,
392 (4th Cir. 2013) (citing Reichel v. Howards,
U.S.
, 132 S. Ct. 2088, 2097
(2012)) (emphasis omitted). During the brief period following the court's decision in
Reichel, and prior to the detention of Raub, neither the Supreme Court nor the Fourth
Circuit provided further clarification on this point. Decisions in other circuits hew
closely to the holding in Reichel. See Patrizi v. Huff, 690 F.3d 459, 467 n.7 (6th Cir.
14 In the first iteration ofhis complaint, Raub maintained that the Chesterfield County Police and
the federal agents conspired to detain him as part of a program sponsored by the Department of
Homeland Security, dubbed "Operation Vigilant Eagle." (Compl. Iffl 49-56, ECF No. 1.) He
appears to have abandoned this contention in the amended versions of his complaint.
24
2012); Thayer v. Chiczewski, 705 F.3d 237,253 (7th Cir. 2012). Consequently, Raub's
First Amendment claim cannot survive summary judgment challenge.15
In his Supplemental Memorandum in Opposition to Defendant's Motion for
Summary Judgment, based on qualified immunity, Raub asserts that a finding of qualified
immunity would not foreclose his entitlement to injunctive relief. (PL's Supplemental
Mem. at 3.) See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Raub suggests that his
"claim for injunctive relief [could be rendered moot by Campbell] by entering into an
enforceable agreement not to participate in any future mental health evaluation or
commitment proceeding involving Raub." (Id. at fn.2.) While Raub may be correct that
the theoretical underpinnings of qualified immunity and injunctive relief turn on separate
axis, the public policy implications of his request preclude injunctive relief in this case.
Federal courts historically have been reluctant to enjoin state officials from
executing their statutory duties absent compelling proof of imminent constitutional
injury. As the Supreme Court noted in Los Angeles v. Lyons, "the need for a proper
balance between state and federal authority counsels restraint in the issuance of
injunctions against state officers engaged in the administration of the States' criminal
laws in the absence of irreparable injury which is both great and immediate." 461 U.S.
95, 112 (1983) (citing O'Shea v. Littleton, 414 U.S. 488,499 (1974)). Notwithstanding
the prescience of Raub's expert psychotherapist, there is no way for law enforcement
15 Although the Court need not directly address the issue, the threatening language in Raub's emails undoubtedly exceeds the boundaries of First Amendment protected speech. See United
States v. Hassan, 2014 U.S. App. LEXIS 2104 (4th Cir. Feb. 4,2014) (citing United States v.
Amawi, 695 F.3d 457,482 (6th Cir. 2012).
25
officials or mental health evaluators to foretell the mindset or behavior of Raub in future
years. To assess the danger inherent in restraining future official action in Raub's case,
one need only review the e-mails he conveyed to his fellow Marines, which this Court
finds to be both threatening and actionable. Therefore, the public interest would be
disserved by the permanent injunction sought in this case. See Monsanto Co. v. Geertson
Seed Farms,
U.S.
, 130 S. Ct. 2743, 2748 (2010).
Raub has also failed to demonstrate constitutional injury in the first instance, much
less an immediate threat of future injury. Even if Raub had shown that his rights were
violated on one occasion, it does not establish any likelihood of a reoccurrence. See
Lyons, 461 U.S. at 113. As the court concluded in Lyons, "[a]bsent a sufficient likelihood
that [Lyons would] again be wronged in a similar way, Lyons is no more entitled to an
injunction than any other citizen of Los Angeles; and a federal court may not entertain a
claim by any or all citizens who no more than assert that certain practices of [public
officials] are unconstitutional." Id. at 111. Raub has failed to show a real or immediate
threat of future detention for a mental examination without probable cause. He therefore
lacks standing to petition for injunctive relief. Id. at 111-12.
Moreover, in the event of a reoccurrence, if Raub is able to prove that his
detention for a subsequent mental evaluation is without probable cause or in violation of
Virginia law, he has an adequate remedy at law in the form of compensatory and/or
punitive damages.
Raub clearly fails to satisfy the well-established standard for the granting of
injunctive relief articulated in Monsanto Co. The law is well settled that federal
26
injunctive relief is an extreme remedy granted in only the most compelling
circumstances. Simmons v. Poe, Al F.3d 1370, 1382 (4th Cir. 1995). This is not such a
case.16
In the final analysis, Raub places far too much weight on the studied opinion of his
expert psychologist. The fact that his expert drew different conclusions than Campbell
adds little impetus to his argument. Qualified immunity turns on the perspective ofthe
public official whose actions are under review. In both Gooden and City ofTakoma
Park, a subsequent diagnosis of no mental illness by a psychiatrist did not preclude a
finding that detention for a mental evaluation was objectively reasonable.
Here, context is important. In stressful situations where lives are potentially at
risk, public safety officials are frequently called upon to make tough decisions. Some
involve close calls based on scant information hastily gathered. But duty still demands
decisive action—citizens expect no less. That's why the law affords such officials
reasonable room to exercise guided discretion and a safe harbor from litigation waged by
persons who, in retrospect, may have acted differently.
Campbell's Motion for Summary Judgment will therefore be granted and both
remaining claims in Raub's Second Amended Complaint will be dismissed.
16 The facts and circumstances ofRaub's detention have been extensively mined and thoroughly
briefed by the parties. Consequently, this Court finds no need to conduct an evidentiary hearing
before denying a permanent injunction in this case. Considering the comprehensive scope of the
record evidence, a hearing would not have altered the Court's decision. Lone Star Steakhouse &
Saloon v. Alpha ofVa., Inc., 43 F.3d 922, 938 (4th Cir. 1995);see also Eisenberg ex rel.
Eisenberg v. Montgomery Cnty. Pub. Schs., 197 F.3d 123,134 (4th Cir. 1999).
27
An appropriate Order will accompany this Memorandum Opinion.
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