Smalls v. Binner et al
Filing
157
MEMORANDUM OPINION. Signed by Judge Jackson L. Kiser on 3/7/16. (ham)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
GWENDOLYN SMALLS,
)
as Administratrix of the Estate of Linwood )
Raymond Lambert, Jr., deceased,
)
)
Plaintiff,
)
)
v.
)
)
CHIEF OF POLICE JAMES W. BINNER, )
DEPUTY CHIEF OF POLICE BRIAN K. )
LOVELACE, TOWN OF SOUTH
)
BOSTON, CORPORAL TIFFANY
)
BRATTON, OFFICER CLIFTON MANN, )
and OFFICER TRAVIS CLAY,
)
)
Defendants.
)
Case No. 4:15-cv-00017
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge
This matter is before the Court on the parties’ competing motions for summary judgment
on the issue of qualified immunity. The parties have fully briefed the motions, and I have
reviewed the relevant filings and counsel’s arguments. For the reasons stated herein, I will grant
Defendants’ motion in part and deny it in part. These rulings defeat or obviate respective facets
of Plaintiff’s motion, which will be denied.
I.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND1
Gwendolyn Smalls (“Plaintiff”) is the sister of Linwood Raymond Lambert, Jr.,
(“Decedent”) and the executrix of his estate. Claiming relief under federal and state law, she has
filed the present action against the Town of South Boston and several members of the South
Boston Police Department (“SBPD”): Chief of Police James W. Binner, Deputy Chief of Police
1
On Defendants’ motion, the facts are considered in the light most favorable to Plaintiff, Scott v. Harris,
550 U.S. 372, 380 (2007), except to the extent that “video ‘ . . . clearly contradicts the version of the story
told by [Plaintiff] . . . so that no reasonable jury could believe it,’” Witt v. W. Va. State Police, Troop 2,
633 F.3d 272, 276 (4th Cir. 2011) (second omission in original) (quoting Scott, 550 U.S. at 378, 380).
Brian K. Lovelace, Corporal Tiffany Bratton, Officer Clifton Mann, and Officer Travis Clay
(collectively, “Defendants”). The parties have moved for summary judgment on the question
whether Corporal Bratton, Officer Clay, and Officer Mann are entitled qualified immunity. The
motions center on the events preceding Decedent’s death, early in the morning of May 4, 2013.2
A. Emergency Custody
In the evening of May 3, 2013, Decedent checked into the South Boston Super 8 Motel.
Beginning at 2:48 a.m., the SBPD began to receive a series of phone calls from Decedent,
2
Addressing these motions warrants some initial discussion of tasers and how they are used.
A taser, such as the X26 model used by Corporal Bratton, Officer Clay, and Officer Mann (see
Br. in Supp. of Defs.’ Mot. for Summ. J. ex. 10, at pg. 1 (hereinafter “Defs.’ Supp. Br.”), Dec. 16, 2015
[ECF No. 125-11]; id. ex. 11, at pg. 1 [ECF No. 125-12]; id. ex. 12, at pg. 1 [ECF No. 125-13]), may be
used in either probe or stun mode.
A taser can fire probes, which are “[p]rojectiles with wires contained in [a taser] cartridge.” (See
Decl. of Thomas N. Sweeney ex. CC, at pg. 43, Dec. 30, 2015 [ECF No. 138-22].) A user “[p]ull[s] the
trigger to release the probes from the cartridge to make contact with the subject and achieve
neuromuscular incapacitation [(“NMI”)],” which is “[t]he effect of the [taser] on a subject when, through
the application of an electrical pulse, the [taser] dominates the motor nervous system by interfering with
electrical signals sent to the skeletal muscles by the central nervous system.” (Id.) The “probes are
expelled from the [taser] and penetrate the subject’s clothing and/or skin, allowing application of the
electric impulse.” (Id.) However, “[i]f one probe does not make contact with the target . . . , the electrical
circuit is not completed and therefore produces not [sic] [NMI] on the [subject].” (Defs.’ Supp. Br. ex. 14,
at pg. 11 [ECF No. 125-17] (hereinafter “Peters Report”).) There could be a “partial effect,” but the taser
will have lost its stopping power. (See Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J. ex. C, at pg. 20:02–
:08 (hereinafter “Defs.’ Resp. Br.”), Dec. 30, 2015 [ECF No. 137-5] (hereinafter “Gilliam Dep.”).) One
can identify a completed circuit by “a specific sound, . . . a popping. It’s an arcing sound, but it’s a quiet
popping or arcing;” however, “[i]f one of those leads break or if one of the probes gets pulled out . . . , it
immediately starts a very loud arcing, which means [that there is not] a full circuit.” (Id. at pgs. 19:16–
20:01.) Sparking is another indicator of an incomplete circuit. (See Defs.’ Supp. Br. ex. 15, at pg. 45:04–
:09 [ECF No. 125-19].)
A taser can also be used in stun, or drive stun, mode. This “requires pulling the [taser’s] trigger
and placing [the taser] in direct contact with the subject, causing the electric energy to enter the subject
directly. Drive stun is frequently used as a non-incapacitating pain compliance technique.” (See Sweeney
Decl. ex. CC, at pg. 42.)
Each officer’s taser had an internal computer that recorded the sequence, “frequency and duration
of . . . . [the taser’s] discharges. Discharges do not equate to application, because probes could have
missed, came [sic] loose, or officers could have had their finger on the trigger firing the [taser] into the
air.” (See Peters Report at pg. 28 (emphasis added).) Five seconds is the standard runtime for a discharge.
(Id. at pg. 17.)
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somewhat unclearly relating a room number and a need for assistance. (See generally Decl. of
Thomas N. Sweeney ex. A, at pgs. 2–6, 8–10, Dec. 30, 2015 [ECF No. 138-3]; Br. in Supp. of
Defs.’ Mot. for Summ. J. exs. 1 & 1A (hereinafter “Defs.’ Supp. Br.”), Dec. 16, 2015 [ECF Nos.
125-1, -2].) Although Decedent related the wrong room number on several attempts, Corporal
Bratton, Officer Mann, and Officer Clay eventually reached his room after 4:30 a.m.3 (See Defs.’
Supp. Br. ex. 2, at pgs. 1–2, [ECF No. 125-3] (hereinafter “Clay Report”); id. ex. 3, at pg. 3
[ECF No. 125-4] (hereinafter “Bratton Report”); id. ex. 4, at pg. 1 [ECF No. 125-5] (hereinafter
“Mann Report”).)
Officer Clay and Officer Mann arrived first. (See Bratton Report at pg. 1.) Consistent
with information received from the motel’s night manager, they heard the sound of metal
banging (or something breaking) coming from inside the room. (Clay Report at pg. 2; Mann
Report at pg. 2.) Inside, Officer Clay and Officer Mann found Decedent out of breath and
sweating profusely, with blood on his left hand and a white substance draining from his nostrils.
(Clay Report at pg. 2; Mann. at pg. 2.) They also found overturned furniture, mattresses removed
from bed frames, broken glass, lights torn off of the wall, broken chairs, blood drops on the bed’s
sheets, and various other items broken or strewn about. (Clay Report at pg. 2; Mann Report at
pg. 2–3; Defs.’ Supp. Br. ex. 5 [ECF No. 125-6] (photographs); see also Bratton Report at pg. 2.)
Decedent was holding a piece of the bed, which he put down at Officer Mann’s request. (Mann
Report at pg. 2.)
The officers asked Decedent if he required assistance, and Decedent exclaimed that
“[s]omeone was after him,” that the blood in the room was not his, and that “they had lights on
him”—“those red lights.” (Clay Report at pg. 2.) By these red lights, he meant the targeting
3
Immaterial to the matters at hand, deputies of the Halifax County Sheriff’s Office were also on the scene
at the hotel. (See Bratton Report at pg. 1; Clay Report at pg. 3.)
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beams of a gun. (See Bratton Report at pg 3.) Decedent claimed to have stabbed two people in
the room and to have hidden their bodies in the ceiling tiles, but there were no bodies. (Id.; Mann
Report at pg. 2.) Decedent seemed to be paranoid and hallucinating. (Mann Report at pg. 2.) He
admitted that he had been drinking that evening (id. at pg. 3) and stated that he had consumed the
entire contents of an empty bottle of vodka found in the room (Bratton Report at pg. 2).
Decedent denied having any drugs, being on any medication, or having any type of medical
condition. (Bratton Report at pg. 2.) When standing in the hallway, he stared at the lights and
repeated “that they were after him.” (Clay Report at pg. 3.) Decedent’s eyes were jumping about,
and when Decedent saw another motel guest walk into the hallway, Decedent stated “that he
didn’t like that guy and that he was after [Decedent].” (Id.) He cowered toward his room
whenever someone came into the hall. (See id. at pgs. 3–4.)
Corporal Bratton determined that the officers “should take [Decedent] for a possible
mental evaluation.” (Bratton Report at pg. 3.) The officers handcuffed Decedent with the intent
to take him, under emergency custody,4 to the hospital, where the on-call case worker waited.
(See Clay Report at pg. 4; Mann Report at pg. 3; see generally Defs.’ Supp. Br. ex. 15, at pg.
13:01–:15 [ECF No. 125-19] (hereinafter “Clay Dep.”).) They informed Decedent that he was
not under arrest and that they were finding him help. (Clay Report at pg. 3; Bratton Report at pg.
3; Mann. Report at pg. 3.) On the way to Officer Clay’s police car, Decedent continued to speak
about the “lights” and stopped whenever he thought that a light shone on him. (Clay Report at
4
Under Virginia law,
[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 . . . 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.
Va. Code Ann. § 37.2-808(G). For those emergency-custody criteria, see id. § 37.2-808(A).
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pg. 4.) After an unremarkable search of Decedent’s person, the officers directed him into Officer
Clay’s car. (See Clay Report at pg. 4; Bratton Report at pg. 3.)
En route to the hospital, Decedent ducked to avoid being seen through the police car’s
rear window and continued to express fears about lights and the car behind him. (See generally
Sweeney Decl. ex. J., at 1:35–6:00 [ECF No. 138-12] (hereinafter “Clay Rear View Dashboard
Video”).) Officer Clay reiterated to Decedent that the officers were taking care of him and that
he would be fine. (See generally id. 0:00–6:40.) As they pulled up to park in front of the
emergency room, Officer Clay related, several times, to Decedent that they had arrived. (Id. at
6:29–:37.)
B. Tasings at the Hospital Doors
After Officer Clay stated that they had arrived at the hospital, Decedent began to kick the
rear right door’s window. (Id. at 6:38–:40.) Over Officer Clay’s multiple commands not to do so,
Decedent continued kicking the window. (Id. at 6:40–:48.) Officer Clay exited the car and came
to the rear left door. (Defs.’ Supp. Br. ex. 8, at 7:52–:58 [ECF No. 125-9] (hereinafter “Hosp.
Video”).) Decedent kicked out the rear right window, its glass flying into the parking spots
adjacent to that side of the car. (Clay Rear View Dashboard Video at 6:46–:48; Hosp. Video at
7:54–:57.) Officer Mann and Corporal Bratton made their way to Officer Clay’s car (Hosp.
Video at 7:58–8:29); meanwhile, Officer Clay, his taser drawn, opened the rear left door (see
Clay Rear View Dashboard Video at 6:53–:57). He commanded Decedent to calm down as
Decedent repeated, “No sir!” and asked Officer Clay to take him to the emergency room. (Clay
Rear View Dashboard Video at 6:56–7:02.) Officer Clay responded, “We’re at the emergency
room!” (Id. at 7:02–:04.) His speech jittery, Decedent expressed that he would calm down and
added that he had provided his mother with his room number and whereabouts. (Id. at 7:04–:18.)
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Decedent shuffled along the backseat before exiting the rear right door, where Corporal
Bratton and Officer Mann were positioned. (Id. at 7:20–:28; Hosp. Video at 8:35–:37.) Decedent
evaded Corporal Bratton and Officer Mann and headed toward the hospital’s entrance. (Hosp.
Video at 8:35–:39.) Corporal Bratton discharged her taser,5 but “the cartridge was not installed
so it was a dry stun with no contact with [Decedent].” (Sweeney Decl. ex. AA [ECF No. 138-20]
(hereinafter “Bratton Interview”); see Hosp. Video at 8:38–:40; Clay Rear View Dashboard
Video at 7:29–:31 (audio).) Decedent ran into and damaged the entrance doors,6 which impeded
him. (See Hosp. Video at 8:40–:44; Sweeney Decl. ex. I., at 7:30–:33 [ECF No. 138-12]
(hereinafter “Clay Front View Dashboard Video”).) Corporal Bratton, Officer Clay, and Officer
Mann caught up to Decedent, and Corporal Bratton and Officer Clay fired their tasers, in probe
mode, at Decedent.7 (Hosp. Video at 8:42–:47; Clay Front View Dashboard Video at 7:33–:39.)
Decedent stiffened and fell. (Clay Front View Dashboard Video at 7:33–:39.) On the way down,
his head hit the hospital’s outer wall or a soap dispenser on it. (See Clay Report at pg. 5; cf.
Sweeney Decl. ex. Y, at pg. 2 [ECF No. 138-20].)
Decedent remained stiff on the ground for a short while before attempting to rise while in
close proximity to, and facing, Corporal Bratton. (Clay Front View Dashboard Video at 7:35–
5
Comparison of the taser logs to the video evidence approximates the relative timing of the taser
discharges. Of note, the officers’ taser logs do not seem to be sequenced to the same “Local Time”
(compare Defs.’ Supp. Br. ex. 10, with id. ex. 11, with id. ex. 12); however, one can track respective
figures beginning from an officer’s first tasing on video.
6
Decedent “knocked the doors completely off of the door track” (Bratton Report at pg. 3), and the “doors
no longer worked after the incident” (Defs.’ Resp. Br. ex. E [ECF No. 137-7]). Officer Mann described
Decedent as “huge” and “a big guy.” (Defs.’ Supp. Br. ex. 19, at pg. 86:25 [ECF No. 125-27].) Decedent
was five feet, ten inches tall and weighed 221 pounds. (Peters Report app. A, at pg. 25.)
7
It is difficult to confirm from the video and the taser logs, but Corporal Bratton deposed a belief that she
did not complete a circuit upon her initial firing of the taser prongs. (See Defs.’ Supp. Br. ex. 13, at
pgs. 127:07–128:07 [ECF No. 125-14] (hereinafter “Bratton Dep.”)). She also deposed a belief that, while
Decedent was rolling on the ground, the loose prong “apparently pierce[d] his skin” and completed the
circuit. (See id. at pg. 128:11–:17.)
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:40.) Upon this attempt, and from (roughly) Corporal Bratton’s third through her fifth discharge,
he screamed loudly and stiffened, again, on the ground. (See id. at 7:40–:46.) The officers
commanded him to stay back, to stay down, and to stop. (Id. at 7:43–:54.) During this time,
Corporal Bratton added, “You understand, every time you do that, I’m gonna’ pop you.” (Id. at
7:46–:49.) One of the male officers then commanded Decedent to “[r]oll back over,” whereupon
Corporal Bratton discharged her taser a sixth time, and Decedent screamed and stiffened his
body. (Id. at 7:56–8:01.)
The officers continued commanding Decedent to roll over or lie on his belly, and
Decedent, at one time, responded, “I am,” and began to mutter (seemingly to himself) something
sounding like, “Just roll over.” (Id. at 8:10–:19.) A little while later—coinciding with Officer
Clay’s second taser discharge and Corporal Bratton’s seventh—arcing could be heard, and
sparking could be seen near Decedent’s feet and in a position directly in front of Officer Clay.8
(See id. at 8:17–:21.) Decedent’s manner did not appear to change at Officer Clay’s second or
Corporal Bratton’s seventh tasings. (See id. at 8:17–:21.) Corporal Bratton disconnected the
probes from her taser (id. at 8:22–:27), and around that time, Officer Clay did so, too (see Hosp.
Video at 9:30). Through this time, the officers continued to command Decedent to roll over onto
his stomach, and Decedent moved about on the ground, telling the officers that he was trying to
do so (or that he would) and asking that they not hurt him. (See generally Clay Front View
Dashboard Video at 7:56–9:03.)
Corporal Bratton reached her taser close to or against Decedent as he sat with his back
somewhat leaning onto the hospital doors. (Id. at 8:41–:42.) Officer Clay and Officer Mann came
closer as Corporal Bratton began to discharge, in stun mode, her taser against Decedent. (Id. at
8
Officer Clay deposed that the sparks seemed to “be going back to [Corporal] Bratton’s taser.” (Clay
Dep. at pg. 274:01–:03 [ECF No. 125-23]; cf. Bratton Dep. at pgs. 127:07–:20, 128:02–:17 [ECF No.
125-14].)
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8:42–:43.) She continued to place her taser against Decedent (id. at 8:43–:53), and for part of this
time, Officer Clay leaned in and placed his taser, in stun mode, against Decedent (id. at 8:48–
:49). The officers continued to order Decedent to roll over onto his stomach, and he responded,
“If y’all stop, I will.” (Id. at 8:49:–53.) During this interaction, Corporal Bratton discharged her
taser an eighth and ninth time, and Officer Clay discharged his a third.9
The officers continued to command Decedent to roll over, and Officer Mann, who was
holding leg restraints, grabbed and lifted Decedent’s right leg. (Id. at 9:03–:12.) Officer Clay
grabbed Decedent’s upper body, helped Officer Clay turn Decedent over, and placed his knee on
Decedent’s back to pin him to the ground. (Id. at 9:08–:15.) Corporal Bratton stood over
Decedent’s torso, placed her taser on or near him, and commanded, “Roll around,” as the other
officers rolled Decedent over. (Id. at 9:11–:13.) Decedent continued to say, “No, sir!” (Id. at
9:05–:15.) Shortly after the officers had rolled him, Decedent seemed to stiffen or exert his body,
while Officer Clay and Officer Mann exerted themselves, keeping Decedent pinned on the
ground. (See id. at 9:13–:52.) While Decedent was pinned to the ground, Corporal Bratton stood
over him with her taser and discharged it twice (her tenth and eleventh discharges) in stun mode.
(See id. at 9:20–:28.) Officer Clay and Officer Mann were able to keep Decedent down on the
ground until, eventually, Officer Mann shackled Decedent’s legs. (Id. at 9:13–:52.)
Decedent, shackled and handcuffed, rolled back over, raised his back from the ground,
and stated, “I just took cocaine, man. I was just takin’ cocaine.” (Id. at 9:52 –10:01.) Corporal
Bratton told him that he was under arrest. (Id. at 10:00–:06.) She informed dispatch that
9
Unseen on video (perhaps obscured), Officer Clay deposed that, around this time, Decedent’s feet
kicked toward him and that one hit his face. (See Clay Dep. at pgs. 277:22–288:22 [ECF No. 125-23].)
Similarly unseen, Corporal Bratton has stated that her taser made limited contact with Decedent and that
Decedent grabbed and held onto her taser for some duration. (See Bratton Interview; Bratton Dep. at pgs.
134:12–136:19 [ECF No. 125-14].)
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Decedent was arrested for resisting arrest and for damaging the hospital, the Super 8 Motel, and
the police car. (See Defs.’ Supp. Br. ex. 1A, at pg. 1.)
Officer Mann removed taser probes from Decedent (see id. at 11:00–:06, 11:22–:40;
Hosp. Video 12:11–:17, 12:30–:50)—three probes were in Decedent’s skin, one “was kind of
stuck in [his] pants,” and two lead wires were broken (Defs.’ Supp. Br. ex. 19, at pgs. 64:14–:17,
65:20–66:06 [ECF No. 125-27] (hereinafter “Mann Dep.”)).10 After, the officers picked
Decedent up and walked him to Officer Clay’s police car. (Clay Front View Dashboard Video at
11:38–12:02; Hosp. Video at 12:55–13:20.) Upon arrival,11 officers commanded Decedent to
stand up and enter the backseat, and he eventually entered it with the officers’ assistance
hoisting, pushing, and pulling him in. (Clay Rear View Dashboard Video at 12:15–:24; Hosp.
Video at 13:20–14:33.) Decedent lay across the backseat. (See Clay Rear View Dashboard Video
at 12:24.) While Officer Clay remained at his car’s driver door, Officer Mann retrieved the spent
probe cartridges, Corporal Bratton checked the hospital doors, and the two surveyed the scene
and spoke with hospital security. (Hosp. Video at 14:44–:45.) The officers then consulted among
themselves (id. at 14:50–17:20) before Officer Mann began taking photographs of Officer Clay’s
broken window and of the hospital doors (id. at 17:30–18:42).
C. Tasings in the Police Car’s Backseat
While the officers were outside and Officer Clay’s car doors were shut, Decedent sat up
and began to swing his head about, several times hitting it against the car’s interior. (Clay Rear
View Dashboard Video at 16:05–:34.) At one point, an officer outside yelled, “Stop!” (Id. at
16:17.) Decedent continued and began to thrust his head and his torso toward the rear right door.
10
Officer Mann could not determine which probes came from which officer’s taser. (Mann Dep. at pg.
65:02–:14.)
11
By the time Decedent reached the car, the cut on his head (from hitting the hospital wall) had clotted.
(Sweeney Decl. ex. L, at pg. 3 [ECF No. 138-13].) The bleeding had not been profuse. (Id.)
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(Id. at 16:15–17:36.) The command to stop followed twice more (id. at 17:04–:09), but Decedent
continued until he slouched his position in the backseat and raised his legs (id. at 17:09–:28).
Outside, the officers began to approach and shouted various commands including, “Don’t do it!”
“Stop!” “I’ll light your ass up!” “Don’t do it!” “Put ’em back! Put ’em back!” “Put your feet
down!” “Put them down on the ground!” and “Sit up straight, act like you’ve got some sense!”
(Id. at 17:30–18:00.) Decedent’s legs remained raised toward the front of the car. (See generally
id.)
At the car’s right rear door, Corporal Bratton pointed her taser at Decedent as she
continued her commands. (See id. at 17:40–18:04.12) With his taser in hand, Officer Mann
opened the car’s rear left door. (Id. at 17:58–18:00.) He placed his taser against Decedent’s left
shoulder and commanded, “Sit up. Do it now. Do it now! Do it.” (Id. at 18:00–:09.) Corporal
Bratton opened the car’s rear right door (id. at 17:57–:58) and placed her taser against
Decedent’s leg (id. at 18:05–:10). Decedent continued to slouch, but he lowered his legs and
positioned them to his right on the backseat. (See id. at 18:00–:09) Eventually, both Officer
Mann and Corporal Bratton discharged their tasers in stun mode—Officer Mann’s first discharge
and Corporal Bratton’s twelfth. (See id. at 18:07–:18.) Decedent reacted by jumping away from
Officer Mann and, then, away from Corporal Bratton. (See id.) He lay across the backseat, his
head at the rear left door and his legs toward the rear right door.
Officer Mann shut the door at which he was situated, and Corporal Bratton said to
Decedent, “Get yo[ur] ass up, and act like you got sense.” (Id. at 18:10–:14.) Officer Mann
reopened his door and commanded Decedent to sit up. (Id. at 18:14–:24.) Decedent slouched
against the seat and mumbled. (Id. at 18:13–:22) Eventually, Officer Mann warned, “Sit up, or
12
During this time, neither Corporal Bratton nor her taser can be seen on screen; however, their shadows
are visible against the car’s rear right seat.
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I’m going to tase you again,” and placed his taser against Decedent’s shoulder. (Id. at 18:30–
:32.) The warnings continued as Decedent sat slumped against the back seat. (Id. at 18:35–:41.)
As the warnings continued, Officer Mann stunned (his second discharge) Decedent’s shoulder.
(Id. at 18:39–:43.) Decedent did not seem to react. (See id.) Corporal Bratton placed her taser
against Decedent’s leg; shortly thereafter, Officer Mann removed his taser from Decedent’s
shoulder. (Id. at 18:44–:46.) Corporal Bratton’s commands to “[s]it up” continued, and she
discharged her taser, in rapid succession, a thirteenth and fourteenth time. (Id. at 18:52–:55.)
While pulling away from Decedent, she discharged her taser (her fifteenth discharge) in stun
mode near or against Decedent’s leg. (See id. at 19:00–19:06.13) Decedent reacted, rising up and
to the right. (Id. at 19:06–:11.)
After letting Decedent sit for a little while, Officer Mann stepped into the car to lift
Decedent’s torso so that he would be sitting in an upright position; however, his torso somewhat
slouched to the right. (Id. at 19:16–:30.) At the rear right door, Officer Clay and, to some extent,
Corporal Bratton helped position Decedent. (Id. at 19:22–:33; see generally Hosp. Video at
20:35–21:15.) After Officer Mann (with the others’ help) fastened Decedent in a seatbelt,
Decedent leaned toward Officer Clay. (See Clay Rear View Dashboard Video at 19:54–20:00.)
Officer Clay attempted a manual pain-compliance maneuver, and Decedent tried to bite him.
(Clay Report at pg. 8; see Clay Rear View Dashboard Video at 20:00–:07.)
D. Transportation, Unresponsiveness, and Death
With Decedent seated and fastened in his seatbelt, the officers congregated briefly before
Officer Mann took pictures of Decedent. (See generally Clay Rear View Dashboard Video at
21:25–22:10.) Decedent sat, leaning toward the broken-out window, blood on his lips and chin
and a line of blood tracing down the left side of his neck to his collarbone area, some blood
13
For part of this time, Officer Mann touched his taser to, and removed it from, Decedent’s shoulder.
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smeared at the front of his shirt collar and on the left shoulder. (See Decl. of Thomas N.
Sweeney ex. N, Dec. 16, 2015 [ECF No. 127-15]; Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J.
ex. A, at pgs. 35–37, 39 (hereinafter “Defs.’ Resp. Br.”), Dec. 30, 2015 [ECF No. 137-1].)
Perceiving potential difficulty maintaining control over Decedent (see Defs.’ Supp. Br. ex. 13, at
pgs. 76:24–77:12 [ECF No. 125-14] (hereinafter “Bratton Dep.”)), Corporal Bratton decided that
the officers would take Decedent to jail14 rather than to the emergency room (Mann Dep. at pgs.
99:20–100:07 [ECF No. 125-30]; Sweeney Decl. ex. EE, at pg. 26:13–:21 [ECF No. 138-24]).
Officer Clay and Corporal Bratton returned to their respective cars and departed for the jail. (See
generally Clay Rear View Dashboard Video at 22:15–23:00.) Officer Mann exclaimed that
Decedent was “bloody as a hog”15 and “fucked up.” (Sweeney Decl. ex. P, at 1:58–2:00, 2:40–
:44 [ECF No. 138-15] (hereinafter “Mann Video”); see also id. at 3:28–:30 (describing Decedent
as “bleeding like a hog”).) Speaking with a hospital security officer before entering the hospital
(see Hosp. Video at 22:30–:40), he related that they were going to take Decedent to the hospital
but now he was “going to jail” (Mann Video at 2:58–3:10).
The officers did not check Decedent’s vital signs or ask him about his condition. (See
generally Clay Dep. at pgs. 198:12–201:04 [ECF No. 125-23]; Mann Dep. at pgs. 78:16–79:03
[ECF No. 125-27]; Bratton Dep. at pg. 161:02–:14 [ECF No. 125-14].) He was, however, known
to be breathing at least as long as the car remained on hospital premises. (See Clay Dep. at pg.
48:03–:07 [ECF No. 125-19]; see also id. at pgs. 200:24–201:04 [ECF No. 125-23]; cf. Bratton
Dep. at pg. 170:01–:05, :18–:23 [ECF No. 125-14].)
14
The jail had a medical nurse on staff. (See generally Defs.’ Resp. Br. ex. B, at pg. 191:01–:08 [ECF No.
137-4].)
15
Plaintiff makes much of Officer Mann’s preceding exclamation that Decedent was “bloody as a hog.”
However dramatic Plaintiff construes this simile (cf. Gilliam Dep. at pg. 95:03–:20), it does nothing to
enlarge upon the plain photographic and video evidence, which reveal relatively minor bleeding (see
Sweeney Decl. ex. N [ECF No. 127-15]; Defs.’ Resp. Br. ex. A, at pgs. 35–37, 39).
- 12 -
In the car, Decedent sat with his head resting to the right. (See Clay Rear View
Dashboard Video at 21:10–:50.) He remained in the same position for the trip’s duration. (Id. at
21:10–27:40.) On the way to jail, Officer Clay noticed that Decedent was quiet but “took it as he
was ready to deal with what he had done.” (Clay Report at pg. 8.) Once during the car ride,
Officer Clay looked back to check on Decedent and perceived that Decedent had “passed out
from the cocaine” or alcohol, as a drunk person might fall asleep or pass out. (See Clay Dep. at
pg. 243:04–:09, :11–:24 [ECF No. 125-23].)
Upon arrival but before parking in the jail’s sally port, Officer Clay told Decedent,
“Wake up.” (Clay Rear View Dashboard Video at 27:36–:39.) He assumed Decedent was
“passed out or asleep” (Clay Dep. at pg. 250:11–:12 [ECF No. 125-23]) and went outside to
deposit his service weapon in his car’s trunk (see Clay Report at pgs. 8–9). Around this time,
Corporal Bratton and Officer Mann walked into the port and did the same. (See Sweeney Decl.
ex. L, at pg. 3 [ECF No. 138-13] (hereinafter “Clay Interview”); Mann Report at pg. 5.) Officer
Mann walked toward Decedent and noticed that he was not moving. (Mann Report at pg. 5.) The
officers shone a flashlight to check Decedent’s eyes, shouted his name, and felt his neck for a
pulse. (Clay Rear View Dashboard Video at 28:35–:02.) They found none. (Clay Report at pg. 9;
Mann Report at pg. 5.) The officers called for a rescue vehicle (Clay Rear View Dashboard
Video at 29:00–:32) and again felt for a pulse (id. at 29:37–:48). They unbuckled Decedent (id.
at 29:49–:50), opened the door to exit the port (Clay Front View Dashboard Video at 29:59–
30:15),16 and drove out (Clay Rear View Dashboard Video at 30:15–:26). Outside, they checked
Decedent’s eyes, called his name, and checked his pulse. (Clay Rear View Dashboard Video at
31:28–:55.) They removed him from the car. (Id. at 31:55–32:26.)
16
There was a (roughly) twenty-second delay as jailers opened the port door. (Clay Interview at pg. 3.)
- 13 -
The officers performed CPR and used an autopulse machine on Decedent until an
emergency vehicle arrived. (See generally Clay Front View Dashboard Video at 32:56–44:50
(audio and, eventually, video of others coming to assist and of the emergency vehicle’s arrival);
Clay Interview at pg. 4; see also Sweeney Decl. ex. R, at pg. 2 [ECF No. 138-15] (hereinafter
“Med. Records”).) At 6:06 a.m., Decedent arrived at the hospital without a pulse. (Med. Records
at pg. 4.) He was declared dead at 6:23 a.m. (Id. at pg. 5). An autopsy determined the manner of
death to have been “accidental” and the cause of death to have been “excited delirium due to
cocaine use with subsequent physical restraint including use of [tasers].” (Defs.’ Repl. to Pl.’s
Resp. to Defs.’ Mot. for Summ. J. at pg. 3, Jan. 6, 2016 [ECF No. 142-1] (hereinafter “Report of
Autopsy”).)
E. Excited Delirium
Excited delirium is a “[s]tate of extreme mental and physiological excitement,
characterized by behaviors and symptoms such as extreme agitation, elevated body temperature
(hyperthermia), watering eyes (epiphoria), hostility, exceptional strength, and endurance without
fatigue.” (See Sweeney Decl. ex. CC, at pg. 42 [ECF No. 138-22].) “It may arise in those with
psychiatric illness who are also abusing cocaine or it may occur in an immensely healthy person
who is abusing cocaine, a condition termed cocaine psychosis. . . . . Once in progress, [an]
agitated delirium event may not be reversible.” (Defs.’ Resp. Br. ex. A, at pgs. 214:13–215:01
[ECF No. 137-1].)
“There has been no formal recognition of the phenomenon by the medical community
and it is not recognized in the Diagnostic and Statistical Manual of Mental Disorders.” (Sweeney
Decl. ex. BB, at ¶ 93 [ECF No. 138-21] (hereinafter “Tucker Aff.”); see also Defs.’ Supp. Br. ex.
14, at pg. 7 [ECF No. 125-17] (hereinafter “Peters Report”) (same and adding that it cannot “be
found in the International Classification of Diseases”).) “[It] is a recognized post-mortem
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diagnosis made by Medical Examiners, and can be a pre-mortem delirium subset diagnosis made
by medical doctors following a differential diagnosis.” (Peters Report at pg. 7.) Although “not
recognize[d] . . . as a medical or psychiatric condition, both the medical and law enforcement
communities agree that excited delirium is a medical emergency no matter what the cause.”
(Tucker Aff. ¶ 94.)
In SBPD taser training, Corporal Bratton, Officer Clay, and Officer Mann had been
taught very generally about excited delirium.17 (See Defs.’ Resp. Br. ex. C, at pg. 16:03–:05
[ECF No. 137-5] (hereinafter “Gilliam Dep.”).) They received no instruction on “signs that an
officer should be looking at to determine if an individual is suffering from excited delirium.”
(See id. at pg. 16:13–:16.) At the critical moments in question, the officers had either been
unfamiliar with the term “excited delirium” or unknowledgeable of its meaning. (See generally
Bratton Dep. at pgs. 54:06–:15, 128:23–:25 [ECF No. 125-14]; Clay Dep. at pgs. 70:20–:23,
72:03–:09, 150:17–:22 [ECF No. 125-19]; id. at pg. 262:14–:22 [ECF No. 125-23]; Mann Dep.
at pg. 41:05–:07 [ECF No. 125-27].) SBPD officers received no “training on medical assessment
of a subject following use of force.” (See Defs.’ Resp. Br. ex. B, at pg. 85:15–:18 [ECF No. 1373].)
17
Taser training “[r]ecommended all [taser] users [to] conduct their own research, analysis and
evaluation” and advised that it was “[i]mportant to timely review all current product materials, updates,
training bulletins, and warnings from TASER.” (Sweeney Decl. ex. T, at pg. 42 [ECF No. 127-18].) The
training cautioned officers that excited delirium (and other conditions) may account for a person’s failure
to obey verbal commands (id. at pg. 32) and suggested that officers redeploy and use other force options
if multiple tasings “are not making progress toward the goals of capturing, controlling, or restraining the
subeject,” “especially . . . when dealing with persons in a health crisis such as excited delirium” (id. at pg.
35). The training presentation did not specify excited delirium’s consequences or how an officer could
identify the condition. (Cf. id. at pgs. 42–49.) The officers’ taser manuals warned that, among others,
“people suffering from excited delirium” “may be particularly susceptible to the effects of [taser] use.”
(See Sweeney Decl. ex. Z, at pg. 2 [ECF No. 138-20].) The manuals nowhere stated how to identify the
condition.
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II.
STANDARD OF REVIEW
A “court shall grant summary judgment if the movant shows that 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). A genuine dispute of material fact exists “[w]here the record taken as a whole
could . . . lead a rational trier of fact to find for the [opposing] party.” See Ricci v. DeStefano,
557 U.S. 557, 586 (2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for
summary judgment, the facts, insofar as they are genuinely disputed, are taken in the light most
favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 380 (2007); however, “when a
video ‘quite clearly contradicts the version of the story told by [the opposing party] . . . so that no
reasonable jury could believe it, a court should not adopt that version of the facts . . . ,’” Witt v.
W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011) (first omission in original)
(quoting Scott, 550 U.S. at 378). A genuine dispute does not exist where there is only a scintilla
of evidence favoring the motion’s opponent; instead, a court must look to the quantum of proof
applicable to the claim. Scott, 550 U.S. at 380; Anderson, 477 U.S. at 249−50, 254. A court’s
task, in short, is merely to determine whether a genuine dispute exists for trial. Anderson, 477
U.S. at 249. Thus, summary judgment is appropriate “[w]here the unresolved issues are primarily
legal rather than factual.” See Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir.
2004).
III.
DISCUSSION
Section 1983 of Title 42 creates a cause of action against
any person who, acting under color of state law, abridges a right
arising under the Constitution or laws of the United States.
Nevertheless, a government official sued under § 1983 is entitled
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to invoke qualified immunity, which is more than a mere defense
to liability; it is immunity from suit itself.
Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013) (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “The doctrine of qualified immunity ‘balances two important interests—the need to
hold public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties reasonably.’”
Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)).
The “qualified immunity analysis typically involves two inquiries: (1) whether the
plaintiff has established the violation of a constitutional right, and (2) whether that right was
clearly established at the time of the alleged violation.” Raub v. Campbell, 785 F.3d 876, 881
(4th Cir.), cert. denied, 136 S. Ct. 503 (2015). A “court ‘may address these two questions in the
order . . . that will best facilitate the fair and efficient disposition of each case.’” Estate of
Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th Cir. 2016) (omission in original)
(quoting Raub, 785 F.3d at 881). A plaintiff’s claim “survives summary judgment, however, only
if [the court] answer[s] both questions in the affirmative.” See id.18
The “difficulties with which policemen are faced are not abstract. They are real.” Burley
v. Rada, 456 F. Supp. 1095, 1096 (E.D. Va. 1978). “[P]olice officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.”
Ryburn v. Huff, 132 S. Ct. 987, 992 (2012) (per curiam) (quoting Graham v. Connor, 490 U.S.
386, 396–397 (1989)). Acknowledging as much, the doctrine of qualified immunity “is to be
applied with due respect for the perspective of police officers on the scene and not with the
18
Defendants have not argued that any rights were unclear. There is no occasion to undertake that inquiry.
- 17 -
greater leisure and acquired wisdom of judicial hindsight.” Smith v. Ray, 855 F. Supp. 2d 569,
579 (E.D. Va. 2012), aff’d, 781 F.3d 95.19
A. The officers are entitled qualified immunity on Count VIII: False Arrest.
“The right of the people to be secure in their persons . . . against unreasonable . . .
seizures, shall not be violated.” U.S. Const. amend. IV. “‘False arrest’ is shorthand for an
unreasonable seizure prohibited by the Fourth Amendment.” Gonzalez v. Vill. of W. Milwaukee,
671 F.3d 649, 655 (7th Cir. 2012); see also Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “In
a long line of cases, [the Supreme Court] ha[s] said that when an officer has probable cause to
believe a person committed even a minor crime in his presence, the balancing of private and
public interests is not in doubt. The arrest is constitutionally reasonable.” Virginia v. Moore, 553
U.S. 164, 171 (2008).
The officers lawfully arrested Decedent. Corporal Bratton, Officer Clay, and Officer
Mann were present when Decedent kicked out the rear right-door window of Officer Clay’s
police car and when he damaged the hospital’s entrance doors. Damaging property is a crime,
Va. Code Ann. § 18.2-137(A), punishable as either a misdemeanor or a felony, depending on the
dollar-measure of damage, id. § 18.2-137(B). Having observed the crimes committed in their
presence, the officers’ arrest of Decedent was constitutional. They are entitled qualified
immunity from Count VIII.
19
Indeed, “[a] creative judge engaged in post hoc evaluation of police conduct can almost always imagine
some alternative means by which the objectives of the police might have been accomplished.” Henry v.
Purnell, 652 F.3d 524, 546 (4th Cir. 2011) (en banc) (Shedd, J., dissenting) (quoting United States v.
Sharpe, 470 U.S. 675, 686–87 (1985)).
- 18 -
B. The officers are entitled to qualified immunity, in part, on Count IV: Excessive Force.
The analysis begins under the Fourth Amendment’s standard and shifts, upon Decedent’s
arrest, to that under the Fourteenth Amendment’s Due Process Clause. The Fourth Circuit’s
decisions in Meyers v. Baltimore County and Orem v. Rephann are illustrative.20
In Meyers v. Baltimore County, Ryan Meyers’ mother had called police to report a fight
between Ryan21 and his brother at her residence. 713 F.3d 723, 727 (4th Cir. 2013). Police
officers were dispatched in response. Id. In the front yard, Officer Romeo, the first to arrive,
found Ryan’s brother and father. Id. The father (whose nose was lacerated and swollen) informed
Officer Romeo that Ryan was inside and that the mother had fled, not to return until Ryan was
removed from the premises. Id. Officer Romeo could see Ryan carrying a baseball bat inside. Id.
The brother informed Officer Romeo that he earlier heard his mother say, “Stop, Ryan. You are
hurting me,” that he punched Ryan in response, and that the fistfight and police call followed. Id.
The brother also informed Officer Romeo of Ryan’s bipolar disorder and mental-health
problems. Id. Officer Romeo called for assistance, which included Officer Mee, “who was
authorized by the [police] [d]epartment to use a taser,” and Officer Gaedke, who “was familiar
with Ryan’s mental illness, having recently arrested him . . . .” Id.
Officers Romeo and Gaedke tried “to convince [Ryan] to surrender peacefully, but he
rebuffed their efforts, stating, ‘No, you’re going to kill me.’” Id. Officer Mee’s attempt was
similarly unsuccessful. Id. at 728. Ryan’s brother then helped officers enter the residence. Id.
20
I do not overlook the Fourth Circuit’s recent decision in Estate of Armstrong, 810 F.3d 892. There, the
defendants enjoyed qualified immunity because the rights they violated were not clearly established, see
id. at 909, an issue Defendants do not raise here. To be clear, Estate of Armstrong provides useful
discussion of rights already clearly established, and other references herein concern only this aspect—not
what the opinion newly clarified.
21
Ryan “was about six feet in height and weighed about 260 pounds.” Meyers, 713 F.3d at 727. He had
long struggled with mental illness and bipolar disorder. Id. Five times, his family had resorted to law
enforcement to forcibly detain and transport him to a mental-health facility. Id.
- 19 -
Ryan was holding a baseball bat, which Officer Mee ordered him to drop. Id. When Ryan
refused, Officer Mee discharged his taser in probe mode. Id.22 The first probe discharge struck
Ryan’s upper body, but he neither dropped the bat nor fell. Id. He “took two more steps toward
the officers.” Id. On the second discharge, Ryan dropped the bat, remained standing, and
advanced toward the officers. Id. The third discharge felled Ryan. Id. After Ryan fell, three
officers sat on his back, while Officer Mee tased him a fourth time. Id. He switched to stun mode
and stunned Ryan six times “during a period slightly exceeding one minute.” Id. In the plaintiffs’
best light, Ryan, while on the ground, “said nothing and was ‘[s]tiffening up and keeping his
body rigid and keeping his hands underneath of his body’” or was “merely tr[ying] to move his
legs while the officers sat on his back.” See id. at 729, 733 (first alteration in original). After the
tenth tasing, “the officers observed that Ryan appeared to be unconscious.” Id. at 728.
Responding paramedics failed to revive Ryan from his state of cardiac arrest. Id. at 729.
Considering Officer Mee’s qualified immunity from the excessive-force claim, the Court
addressed the first three tasings together and found them to be reasonable. See id. at 732–33. The
Court observed that, during this time, “Ryan was acting erratically, was holding a baseball bat
that he did not relinquish until after he received the second shock, and was advancing toward the
officers until the third shock caused him to fall to the ground.” Id. at 733. “Ryan posed an
immediate threat to the officers’ safety, and was actively resisting arrest.” Id. Officer Mee was
entitled qualified immunity as to these three tasings.
Next, the Court addressed Officer Mee’s seven additional tasings. The justification for
the first three tasings “had been eliminated after Ryan relinquished the baseball bat and fell to the
22
“Ryan may have taken a step toward the officers immediately before the probe made contact with his
body.” Meyers, 713 F.3d at 728.
- 20 -
floor.” Id.23 In the plaintiffs’ best light, the evidence showed that, “after Ryan fell to the floor, he
no longer was actively resisting arrest, and did not pose a continuing threat to the officers’
safety;” yet, Officer Mee tased Ryan until he was unconscious. Id. This sufficed to show a
constitutional violation, which—as a use of “unnecessary, gratuitous, and disproportionate force
to seize a secured, unarmed citizen”—was clearly established. Id. (quoting Bailey v. Kennedy,
349 F.3d 731, 744–45 (4th Cir. 2003)).24 Officer Mee enjoyed no qualified immunity from the
action on these seven tasings. Id. at 735.
In Orem v. Rephann, Sonja Orem had earlier “ransacked her husband’s offices. She
destroyed phones, a computer keyboard and kicked a hole in the wall. She also had assaulted her
husband and thrown his clothing and belongings into their front yard.” 523 F.3d 442, 444 (4th
Cir. 2008) (footnote omitted), abrogated in part by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)
(per curiam). After receiving a family protective order, she left the residence. Id. “Under the
influence of prescription drugs, marijuana, and alcohol, Orem quickly became enraged and . . .
started ‘flipping out’ when she discovered that she would not be allowed to see her son for six
months.” Id. Speeding back to the residence, she “skidded into a ditch, left her car and charged at
a police officer. Three officers restrained Orem, placed her in handcuffs, a foot restraint device
. . . , and put her in a police car.” Id. En route to the jail in Deputy Boyles’ car, “Orem yelled,
cursed and banged her head against the police car window three or four times.” Id. These actions
were “so intense” that they caused the vehicle to rock and loosened the foot-restraint device. Id.
This prompted Deputy Boyles to pull the car over. Id. Deputy Rephann and another deputy had
23
“[F]orce justified at the beginning of an encounter is not justified even seconds later if the justification
for the initial force has been eliminated.” Meyers, 713 F.3d at 733 (quoting Waterman v. Batton, 393 F.3d
471, 481 (4th Cir. 2005)).
24
On the question whether the violation was of clearly established law, “[t]he fact that the force . . .
emanated from a taser, rather than from a more traditional device, [was] not dispositive.” Meyers, 713
F.3d at 734–35.
- 21 -
been following, voluntarily and without Deputy Boyles’ request. Id. They pulled in behind
Deputy Boyles. Id.
Deputy Boyles began attempting to tighten the foot-restraint device. Id. Meanwhile,
Deputy Rephann approached the car with a taser drawn. Id. Deputy Rephann spoke with Orem,
who swore at him several times. Id. at 444–45. During the exchange, Deputy Rephann warned
Orem to “stop it,” to “[c]alm down,” and to “respect” the officers, and he tased her twice in stun
mode. Id. at 445.25 He stunned her “underneath her left breast and on her left inner thigh,” and “a
permanent sunburn-like scar was left where the taser had been applied to her thigh.” Id.
In Orem’s best light, the Court found a constitutional violation. Id. at 446. Deputy Boyles
was already retightening the foot-restraint device so as to calm Orem and ensure safe transport.
Id. Deputy Rephann tased Orem merely because she swore at him and he wanted to command
respect. Id. at 447. Noting the sensitive areas where Deputy Rephann tased her, the Court
inferred that Deputy Rephann had applied the force “for the very purpose of harming and
embarrassing Orem.” Id. Additionally, Deputy Rephann’s conduct contrasted with that of the
two other deputies, neither of whom engaged Orem with a taser. See id. at 448–49. Together,26
the facts showed, in the light most favorable to Orem, “that Deputy Rephann’s use of the taser
gun was wanton, sadistic, and not a good faith effort to restore discipline.” Id. at 447.27 Deputy
25
“At the time of this incident, Orem was 27 years old and weighed 100 pounds. Deputy Rephann, on the
other hand, weighed 280 pounds.” Orem, 523 F.3d at 445.
26
The Court also observed that, by forgoing prerequisite “open hand measures,” Deputy Rephann had
disobeyed his department’s taser policy, Orem, 523 F.3d at 447, but it is unclear how, if at all, this
observation figured into the decision, cf. infra note 28.
27
The Court went on to address Deputy Rephann’s argument that the plaintiff “only suffered de minimus
injury.” See Orem, 523 F.3d at 447–48. The Supreme Court has since specified to the Fourth Circuit that
“[t]he ‘core judicial inquiry’ . . . [is] not whether a certain quantum of injury was sustained, but rather
‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.’” See Wilkins, 559 U.S. at 37 (quoting Hudson v. McMillian, 503 U.S. 1, 7
(1992)).
- 22 -
Rephann’s earlier “verbal attempts to secure order . . . d[id] not lessen the unreasonableness of”
the tasings. Id. “[I]t was clearly established that an arrestee or pretrial detainee is protected from
the use of excessive force,” and Deputy Rephann enjoyed no qualified immunity. Id. at 448.
Meyers and Orem do much to frame the analysis at hand. “Of course, each case turns on
its own facts and circumstances,” Thomas v. Durastanti, 607 F.3d 655, 671 (10th Cir. 2010), and
a court’s “rather abstract pronouncements in one case may be of little assistance with the realities
and particulars of another,” Estate of Armstrong, 810 F.3d at 911 (Wilkinson, J., concurring in
part).
1. Excessive Force Under the Fourth Amendment
“A ‘claim that law enforcement officials used excessive force in the course of making an
arrest, investigatory stop, or other “seizure” of [a] person’ is ‘properly analyzed under the Fourth
Amendment’s “objective reasonableness” standard.’” Estate of Armstrong, 810 F.3d at 899
(majority opinion) (alteration in original) (quoting Graham v. Connor, 490 U.S. 386, 388
(1989)). “As in other Fourth Amendment contexts . . . the ‘reasonableness’ inquiry in an
excessive force case is an objective one: the question is whether the officer[’s] actions are
‘objectively reasonable’ in light of the facts and circumstances confronting [him], without regard
to [his] underlying intent or motivation.” Turmon v. Jordan, 405 F.3d 202, 207 (4th Cir. 2005)
(alterations in original) (quoting Graham, 490 U.S. at 397).28
28
“It is . . . settled law that a violation of departmental policy does not equate with constitutional
unreasonableness.” Abney v. Coe, 493 F.3d 412, 419 (4th Cir. 2007); Sammons v. Barker, No. CIV.A.
2:07-0132, 2008 WL 1968843, at *13 (S.D.W. Va. May 2, 2008) (same); see also Lucas v. Shively, 31 F.
Supp. 3d 800, 814 (W.D. Va. 2014), aff’d mem., 596 F. App’x 236 (4th Cir. 2015) (per curiam); Guerrero
v. Deane, No. 1:09CV1313 JCC/TCB, 2012 WL 3834907, at *11 (E.D. Va. Sept. 4, 2012) (“[T]he
violation of police regulations or even a state law is completely immaterial as to the question of whether a
violation of the federal constitution has been established.” (quoting Bruce v. City of Chicago, Case No.
09-C-4837, 2011 WL 3471074, at *1 (N.D. Ill. 2011))); cf. Moore, 553 U.S. at 172 (“We thought it
obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices—
even practices set by rule.”). Constitutional reasonableness, after all, is a matter of the Constitution.
- 23 -
“[T]he test ‘requires a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental interests at
stake.’” Estate of Armstrong, 810 F.3d at 899 (quoting Smith, 781 F.3d at 101). There are three
guiding factors:
First, [a court] look[s] to “the severity of the crime at issue”;
second, [a court] examine[s] the extent to which “the suspect poses
an immediate threat to the safety of the officers or others”; and
third, [a court] consider[s] “whether [the suspect] is actively
resisting arrest or attempting to evade arrest by flight.” “To
properly consider the reasonableness of the force employed [a
court] must view it in full context, with an eye toward the
proportionality of the force in light of all the circumstances.”
Id. (penultimate alteration in original) (quoting Smith, 781 F.3d at 101). A panel majority
recently observed that the Fourth Circuit’s “precedent . . . makes clear that tasers are proportional
force only when deployed in response to a situation in which a reasonable officer would perceive
some immediate danger that could be mitigated by using the taser.” Id. at 903.
i.
Summary judgment on qualified immunity is appropriate for Corporal Bratton’s first
five taser discharges and for Officer Clay’s first.
Corporal Bratton’s first taser discharge was in stun mode as she and her fellow officers
pursued Decedent, who was fleeing toward the hospital shortly after damaging SBPD property—
a crime—in the officers’ presence. Her taser missed Decedent, and this absence of force was
neither excessive nor unreasonable.29 Corporal Bratton is entitled qualified immunity as to her
failed stun attempt.
29
Even if she had stunned Decedent, the use of force would have been a reasonable attempt to stop a
fleeing and unpredictable person who had just committed a destructive crime in the officers’ presence.
- 24 -
Corporal Bratton’s second taser discharge30—this time in probe mode—was
simultaneous with Officer Clay’s first. They had come upon a fleeing Decedent, who had just
run into (but been deterred by) the hospital doors and turned around. Although the grade of
Decedent’s most salient offense was not very serious, its circumstances were—handcuffed and in
the presence of officers who were helping him, Decedent kicked out a police car’s window. The
officers could reasonably have understood him to be a threat to their safety or property and to the
hospital, its personnel, or its patients and visitors. In light of their earlier observation of
Decedent’s mental state, his trashed motel room, and his bleeding hand, the officers could also
reasonably believe that Decedent was a threat to himself. Decedent’s behavior was unpredictable
and reasonably suggested a continuing threat to the officers, to the public, and to Decedent.
Corporal Bratton and Officer Mann acted reasonably in discharging their tasers so as to halt
Decedent.31 They enjoy qualified immunity as to these discharges.
Corporal Bratton’s third, fourth, and fifth taser discharges came in rapid succession and
followed Decedent’s sudden attempt (a short time after his initial tasing and fall) to rise in front
of and facing Corporal Bratton. Although Decedent remained handcuffed and surrounded, the
situation had not settled entirely, and a reasonable officer could have interpreted Decedent’s
sudden attempt to rise as an attempt at flight, which, to be successful, would have likely required
some physical confrontation with the officers near and surrounding him. Corporal Bratton was
not required to wait and see what Decedent would do upon rising. The responsive series of
30
Questions persist over the circuits’ completeness at several periods. Video evidence, however, shows
Plaintiff screaming and stiffening at the approximate times of Corporal Bratton’s second, third-throughfifth, and sixth taser discharges. In Plaintiff’s best light, each of these tasings accomplished a temporary
NMI or partial effect.
31
The simultaneity of Corporal Bratton’s and of Officer Clay’s discharges is of no matter here. In the split
second, no reasonable officer could be expected to anticipate the other’s discharge.
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tasings returned Decedent to the ground and quashed any threat. This use of force was
reasonable, and Corporal Bratton is entitled qualified immunity as to it.
ii.
Summary judgment on qualified immunity is inappropriate as to Corporal Bratton’s
sixth-through-eleventh taser discharges and Officer Clay’s second and third.
At this time, Decedent was (somewhat) rocking back and forth on the ground and had
come to lie face up; however, he did not attempt to rise again. Officers had been commanding
him to stay down. During this time, Decedent remained on the ground and presented no
immediate threat of violence or risk of flight. An officer ordered Decedent to roll back over;
almost immediately after, Corporal Bratton’s discharged her taser a sixth time, again in probe
mode accomplishing NMI. These relatively settled circumstances, as construed in Plaintiff’s best
light, did not warrant this unreasonable degree of force.
In Plaintiff’s best light, Decedent started genuinely attempting to heed the officers’
commands to roll over.32 Even accepting the suggestion that neither Corporal Bratton’s seventh
discharge nor Officer Clay’s second coincided with a completed circuit,33 these discharges, in
Plaintiff’s best light, had a “partial effect”34 (see Gilliam Dep. at pg. 20:02–:08) and, again,
accomplished force exceeding the amount justified under the circumstances.
For Corporal Bratton’s eighth and ninth taser discharges and for Officer Clay’s third, they
tased Decedent in stun mode.35 By this time, the officers had narrowed Decedent’s already-
32
Decedent told the officers that he was attempting to comply, and his movements consisted with his
expressed difficulties rolling over. At this stage, his various no-sirs and no-ma’ams must be considered as
pleas that the officers not hurt him.
33
Sparking appeared on the ground, and arcing could be heard. Decedent showed no signs of NMI and
did not seem to react to any pain.
34
A triable question of fact exists as to how much, if any, force either officer accomplished. For purposes
of deciding Defendants’ motion, however, the facts must be construed in Plaintiff’s favor.
35
A factual question persists, but in Plaintiff’s best light, each of these stun-mode discharges
accomplished force against Decedent.
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limited space while Decedent continued (in Plaintiff’s best light) his genuine but futile attempts
to heed the officers’ commands to roll over. Under the circumstances in Plaintiff’s most
favorable light, the force was excessive because Decedent’s compromised situation posed little,
if any, threat of violence or risk of flight. The force was disproportionate to the objective of
moving or securing Decedent, who simply could not heed the officers’ commands on his own.
Corporal Bratton’s tenth and eleventh taser discharges, in stun mode, came in close
succession when the officers were holding, pinning down, and moving Decedent so as to shackle
his legs. She tased36 Decedent when he rolled nearly over—seemingly on his own but with
Officer Clay and Officer Mann still holding him to the ground. For that brief time, Decedent was
barely capable of rolling, and he remained secured to the ground. There was no immediate threat
of violence or risk of flight, and the rolling over did not warrant the force used. In Plaintiff’s best
light, these tasings were excessive.
2. Excessive Force Under the Fourteenth Amendment37
“No State shall . . . deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. As relevant here, “the Due Process Clause protects a pretrial
detainee from the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson,
135 S. Ct. 2466, 2473 (2015) (quoting Graham, 490 U.S. at 395 n.10).
“[T]o succeed on a claim of excessive force under the Due Process Clause of the
Fourteenth Amendment, [a plaintiff] must show that [a] Defendant [ ] ‘inflicted unnecessary and
36
In Plaintiff’s best light, each of these stun-mode discharges connected with Decedent.
37
Plaintiff argues that Defendants waived qualified immunity as to the post-arrest conduct because their
opening brief addressed it under the Fourth (not the Fourteenth) Amendment. Defendants’ argument
sufficed to raise the issue’s substance, and I find no waiver. Cf. e.g., Orem, 523 F.3d at 445–46 & n.4
(treating an excessive-force claim under the Fourteenth Amendment, even though the district court
addressed it under the Fourth Amendment and the litigants argued it, to both courts, under the Fourth
Amendment); id. at 449 (Shedd, J., concurring) (same).
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wanton pain and suffering.’” Young v. Prince George’s Cnty., 355 F.3d 751, 758 (4th Cir. 2004)
(second and third alterations in original) (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)).
“In other words, [the plaintiff] must show that ‘the [defendants’] actions amounted to
punishment and were not merely an incident of some other legitimate governmental purpose.’”
Wernert v. Green, 419 F. App’x 337, 340 (4th Cir. 2011) (O’Connor, J.) (quoting Robles v.
Prince George’s Cnty., 302 F.3d 262, 269 (2002)).
“In determining whether [this] constitutional line has been crossed,
a court must look to such factors as the need for the application of
force, the relationship between the need and the amount of force
used, the extent of the injury inflicted, and whether the force was
applied in a good faith effort to maintain and restore discipline or
maliciously and sadistically for the very purpose of causing harm.”
Orem, 523 F.3d at 446 (alteration in original) (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973)).
When the officers realized that Decedent was banging his head inside of the car and
raising his legs, they were justified in taking some action to ensure that Decedent would not
damage the car any further and that he would not injure himself. After repeated verbal
commands that he do so, Decedent (who was handcuffed and shackled) ceased raising his legs
and swinging his head. He slouched in his seat. Discipline had largely been restored, and the
threat of damage or injury had dissipated; however, Corporal Bratton and Officer Mann tased
him under these relatively settled circumstances.38 In Plaintiff’s best light, the scant justification
for force suggested malice and intent to harm or punish—not good-faith intent to restore
discipline. Neither Corporal Bratton nor Officer Mann enjoys qualified immunity as to these
tasings.
38
In Plaintiff’s best light, each of these stun-mode discharges connected with Decedent.
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C. The officers are entitled qualified immunity on Count VII: Deprivation of Medical Care.
“[T]he Due Process Clause of the Fourteenth Amendment . . . ‘mandates the provision of
medical care to detainees who require it,’” Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001)
(quoting Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)); however, inadequate medical
treatment will not always violate the Clause, Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307
(11th Cir. 2009). “As a general matter, ‘[o]nly governmental conduct that “shocks the
conscience” is actionable as a violation of the Fourteenth Amendment.’” Parrish ex rel. Lee v.
Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (opinion of Williams, J.) (alteration in original)
(quoting Young v. City of Mount Ranier, 238 F.3d 567, 574 (4th Cir. 2001)). “In cases where the
government is accused of failing to attend to a detainee’s serious medical needs,[39] . . . ‘conduct
that amounts to “deliberate indifference” . . . is viewed as sufficiently shocking to the conscience
that it can support a Fourteenth Amendment claim.’” Id. (quoting Young, 238 F.3d at 575).
“Deliberate indifference is a very high standard—a showing of mere negligence will not
meet it.” Id. at 302 (emphasis added) (quoting Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.
1999)). Nor will the standard be met by a mere showing “that an officer’s response to a
perceived substantial risk was unreasonable under the circumstances.” Id. at 307.
Indeed, the Fourth Circuit has “made clear” that “the question in
deliberate indifference cases is not whether the officials could have
taken additional precautions—almost invariably, with the benefit
of 20/20 hindsight, there are additional precautions that could have
39
“[A] ‘serious . . . medical need’ is ‘one that has been diagnosed by a physician as mandating treatment
or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.’” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008) (omission in original) (quoting Henderson v.
Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)). “In the alternative, a serious medical need is determined by
whether a delay in treating the need worsens the condition.” Mann, 588 F.3d at 1307; cf. Sharpe v. S.C.
Dep’t of Corr., 621 F. App’x 732, 734 (4th Cir. 2015). The common thread is “substantial risk of serious
harm” if the need is “left unattended.” Mann, 588 F.3d at 1307 (quoting Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003)).
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been taken—but whether they disregarded an excessive risk to . . .
[a detainee’s] health or safety.”
Estate of Harvey v. Roanoke City Sheriff’s Office, 585 F. Supp. 2d 844, 858 (W.D. Va. 2008)
(omission and alteration in original) (quoting Parrish ex rel. Lee, 372 F.3d at 309). “[O]fficials
can be liable under the deliberate indifference standard only to the extent that they actually
appreciate the risk factors in a given case, and only to the extent they make the causal inference
that the circumstances as they perceived them created a substantial risk of serious harm.” Parrish
ex rel. Lee, 372 F.3d at 304 (emphases added).
Decedent’s excited delirium presented “a serious medical need.” See, e.g., Mann, 588
F.3d at 1307.40 On the question whether the officers were deliberately indifferent to that need, I
find good instruction from Mann v. Taser International, Inc. As relevant here, the plaintiffs in
that case “assert[ed] that [sheriff’s] deputies were on notice of [Melinda Fairbanks’] ‘excited
delirium’ and [that] their failure to take her for immediate medical treatment constitute[d]
deliberate indifference.” See id. at 1307.
In Mann, Melinda smoked methamphetamine, became agitated and delusional, and
damaged a house (mistakenly believing it to be hers) while claiming that the residents were
trespassers and thieves. Id. at 1299. The sheriff’s deputies responded to a call for assistance. Id.
When they arrived, Melinda was wandering around and yelling “that someone had stolen her
things,” “[s]pecifically, . . . the demons and devils . . . had stolen her treasure.” Id. She initially
cooperated but became combative upon her arrest. Id. Screaming, kicking, headbutting,
40
It is difficult to detect how Plaintiff marshals the facts to the elements of a claim for deprivation of
medical care (cf. Second Am. Compl. ¶¶ 153–61, Nov. 18, 2015 [ECF No. 103]), but she seems to
suggest serious medical needs manifested by Decedent’s psychological state (i.e., excited delirium) and
by his cuts and bleeding (see Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J. on the Issue of
Qualified Immunity at pgs. 48, 50, Dec. 30, 2015 [ECF No. 138]). Clearly, Decedent’s cuts (and
consequent bleeding) did not present such a serious medical need as to support a claim for deprivation of
medical care. See supra notes 11 & 15. (See also Report of Autopsy at pg. 1; cf. Bratton Dep. at pg.
158:06–:10 [ECF No. 125-14]; Clay Dep. at pgs. 67:04–:06, 122:14–123:12 [ECF No. 125-19]; Mann
Dep. at pg. 75:03–:07 [ECF No. 125-27].)
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handcuffing, and resisting ensued. Id. One deputy knew that Melinda was a methamphetamine
user, and during the fracas, the plaintiffs told another deputy that Melinda was off her
medications and needed help from a hospital rather than a trip to jail. Id. The deputies placed
Melinda in a police car, where she began to reach into her pockets. Id. at 1299–1300. “This
movement prompted the deputies to remove her from the patrol car in order to search for
weapons or contraband.” Id. at 1300. Outside of the car, Melinda accused the deputies of
attempting to plant evidence on her, resisted them, and “began slamming her head against the
trunk of the car and flailing her body in an attempt to hit, kick, head butt and spit on the
deputies.” Id. She refused to be put back into the police car, “kick[ed] uncontrollably” when
inside, and “propelled herself out of the open door . . . , landing on her head and neck.” Id. As a
precaution, a deputy contacted emergency medical services, “stating that Melinda was acting
‘crazy,’ and requesting a medical consult.” Id.
“Melinda continued to kick and fight with the deputies, such that they could only pin her
down and wait for backup to arrive.” Id. Although the deputies eventually shackled Melinda’s
legs and placed her back in the car, she “continued to kick uncontrollably” and kicked out one of
the car’s windows and bent the door’s frame. Id. Ignoring the officers’ instructions, she
continued kicking and slamming her head. Id. After warnings went unheeded, a deputy tased
Melinda three times. Id. Although the first tasing “momentarily curbed Melinda’s behavior,” she
“continued her aggressive resistance” undeterred by the other two. Id.
When emergency personnel arrived, Melinda was too combative for them to examine her.
Id. Given that “she was talking, breathing and responding,” they determined that the she “was
not in any immediate medical distress.” Id. The deputies took Melinda, who was still combative,
to jail. See id. at 1300–01. “[A]pproximately thirty seconds prior to their arrival at jail, she
stopped kicking and screaming.” Id. at 1301. Upon arrival and unloading, Melinda “was
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unresponsive with labored breathing.” Id. The jailers attempted to alleviate “possible heat stroke”
and contacted emergency medical services. Id. They took her to an emergency room, where she
suffered cardiac arrest and died. Id.
The court concluded that “the deputies were not deliberately indifferent to Melinda’s
serious medical condition when they opted to take her to jail instead of to the hospital.” Id. at
1308. Of the officers who “had knowledge of Melinda’s disconnect from reality,” none “kn[ew]
of the medical condition called ‘excited delirium’ or its accompanying risk of death.” Id. at 1307.
Melinda’s “physical resistance and verbal communication suggested to the deputies that although
agitated, [she] was not in immediate medical danger.”41 Id. at 1308. “There [was] no evidence
that indicate[d] Melinda’s behavior evidenced a serious disease rather than a temporary reaction
to the known use of methamphetamine. Most importantly, nothing in the record suggest[ed] that
the deputies were aware Melinda’s condition could lead to death if not promptly treated.” Id.
Further, the deputies’ “precautionary measure of calling [emergency medical services42] after
Melinda had fallen out of the patrol car” revealed a state of mind “[f]ar from” deliberate
indifference. See id. Whatever “error in judgment” the deputies might have made, “mere
negligence or a mistake in judgment does not rise to the level of deliberate indifference.” Id.
Even in Plaintiff’s best light, the Record does not reveal the officers’ causal inference
that Decedent’s circumstances substantially risked excited delirium or consequent sudden death.
In training, the officers heard some passing mention of excited delirium, but whatever vague
41
“The Constitution does not require an arresting police officer . . . to seek medical attention for every
arrestee or inmate who appears to be affected by drugs or alcohol.” Mann, 588 F.3d at 1308 (quoting
Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2009)); accord Woodward v. City of Gallatin, No.
3:10-1060, 2013 WL 6092224, at *8 (M.D. Tenn. Nov. 19, 2013); Bradway v. Town of Southampton,
826 F. Supp. 2d 458, 471 (E.D.N.Y. 2011); Estate of Crouch v. Madison Cnty., 682 F. Supp. 2d 862, 872
(S.D. Ind. 2010); Estate of Lawson ex rel. Fink v. City of Hamilton, No. C-1-07-927, 2009 WL 1444556,
at *16 (S.D. Ohio May 21, 2009).
42
The court repeated that emergency personnel concluded that “Melinda did not appear in any immediate
medical distress because she was verbally responsive and breathing normally.” Mann, 588 F.3d at 1308.
- 32 -
remembrance they had, it did not form an appreciation of the risk of sudden death or of the
telltales that differentiate a person suffering (or on the verge of) excited delirium from an
intoxicated or psychotic person not so affected. Because the officers lacked both the abstract and
the concrete knowledge of Decedent’s condition, they cannot be found to have been deliberately
indifferent.43 The officers are entitled to qualified immunity on this claim.
IV.
CONCLUSION
Defendants’ motion succeeds against Count VII: Deprivation of Medical Care and Count
VIII: False Arrest.44 Given these dispositions, the officers are also entitled to summary judgment
against Plaintiff’s state-law claims to the extent that they are premised on the officers’ reasonable
conduct, as found herein. See, e.g., Waller v. City of Danville, 212 F. App’x 162, 174 (4th Cir.
2006). Defendants’ motion fails on the remaining claims, most notably, Count IV: Excessive
Force.45 These rulings either confirm or (effectively) deny qualified immunity and, in turn, defeat
or obviate the respective bases for Plaintiff’s motion, which will be denied.
The remaining claims are set for trial.
43
It is no crucial distinction that the deputies in Mann contacted emergency medical services as a
precaution. Their doing so evinced no greater perception of a substantial risk of serious harm. Nor does
the outcome here change in consideration of Officer Mann’s laughter while relating that his fellow
officers were taking Decedent to jail instead of the hospital; even taken in Plaintiff’s best light, his
chuckling does not prove the officers’ awareness of substantial medical risks to Decedent. Nor do
Decedent’s eventual calm in the police car’s backseat or his quiet during the drive to the jail go so far as
to evince a subjective appreciation of serious medical risk or danger.
44
To be sure, these rulings do not occasion summary judgment on Count VI: Unconstitutional/Inadequate
Policies, Training, and Procedures or on other Defendants’ vicarious liability for other remaining claims.
45
Not to be overlooked, Defendants’ overarching cause-of-death argument fails. The cause-of-death
question is of central relevance to the wrongful-death count and is not ripe for decision. (See Order pg. 3,
Aug. 6, 2015 [ECF No. 42] (staying discovery “relating to the claims against the Town of South Boston
and the claims against the chief and deputy chief of police, as well as the state law claims against all
defendants”).) Insofar as Defendants’ argument relates to the federal claims considered herein, Plaintiff’s
ultimate success requires no specific cause of death and, more fundamentally, no death at all.
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The clerk is directed to forward a copy of this Memorandum Opinion and accompanying
Order to all counsel of record.
Entered this 7th day of March, 2016.
s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE
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