Fairfax County Police Watch: 2021

This action is a Section 1983^[1] excessive use of force, gross negligence, and assault and battery suit brought by plaintiff Robert Clem, a 58-year-old male who suffers from depression and dementia, against defendants County of Fairfax, the County's Chief of Police, and two individual officers, Shannon Corbeau and Eric Nelson. Following a hearing, summary judgment was entered in favor of all defendants, except Officer Corbeau.^[2] Cross-motions for summary judgment relating to Officer Corbeau were denied on the ground that triable issues of fact remained with respect to whether Officer Corbeau is entitled to qualified immunity for his actions in shooting plaintiff three times.^[3] Plaintiff subsequently filed a motion to alter or amend this ruling. This Memorandum Opinion sets forth the reasons for the denial of summary judgment for Officer Corbeau on qualified immunity grounds and also resolves plaintiff's motion to alter or amend.

On November 9, 1998, plaintiff's wife called 911 and advised the dispatcher that plaintiff, who had mental problems, had not eaten in three days, was refusing to go to his doctor's appointment, was urinating on the floor, and was dropping lighted cigarettes on the floor. The dispatcher labeled the call a "mental case," and Officers Corbeau and Nelson responded. Before entering plaintiff's residence, Officer Nelson informed Officer Corbeau that approximately six weeks earlier, Officer Nelson and another officer had responded to a similar call from plaintiff's wife, who complained that plaintiff had threatened her with a knife. On this earlier occasion, the officers were able to persuade plaintiff to attend his scheduled doctor's appointment.

When the officers entered the residence, plaintiff was seated at the kitchen table. Officer Corbeau testified that plaintiff appeared "slightly out of it." Once inside, Officer Nelson attempted to persuade plaintiff to keep his doctor's appointment. These efforts, at least initially, were successful, as plaintiff stated that he was willing to keep the appointment. Accordingly, Officer Nelson assumed the situation was under control, and called off the units en route to provide back-up support.

Then, the situation changed abruptly. Plaintiff changed his mind about keeping his doctor's appointment. In response, both officers renewed their efforts to encourage plaintiff to see his doctor. Officer Corbeau testified that plaintiff responded by stating he would kill Officer Corbeau and while patting his front right pants pocket, plaintiff further declared that he had "something that could beat anything that [Corbeau] had on his belt." Plaintiff's nephew, who was present at the time, disputed Officer Corbeau on this point. He stated, instead, that plaintiff never threatened the officers, but did pat his pocket and state that "you think that I am afraid of you because of your badge." Mrs. Clem also disputed Officer Corbeau's testimony on this point; she agreed with the nephew's account that plaintiff never threatened either Officer Corbeau or Officer Nelson. Officer Nelson supported Officer Corbeau's testimony, although his support is arguably contradicted by the first statement he provided in the course of an interview on the date of the shooting. In that interview, Officer Nelson never mentioned that plaintiff had patted his pocket or threatened defendant. Later that day, however, Officer Nelson did confirm Officer Corbeau's version of plaintiff's statement. Yet, significantly, during this same interview, Officer Nelson also stated that he was certain that plaintiff was unarmed, despite plaintiff's threat, because plaintiff's shirt was open and he could see that plaintiff had no weapons in his front pocket or tucked into his waistband.

Immediately following the disputed statement, plaintiff, with no warning, jumped out of his seat and with his arms up in the air began moving toward Officer *891 Corbeau. Plaintiff's wife and Officer Nelson attempted unsuccessfully to restrain him. Officer Corbeau, in response, used his pepper spray on plaintiff because he felt that plaintiff "posed an immediate threat of serious bodily injury."^[4] As it happened, the pepper spray also struck Officer Nelson, plaintiff's wife, and plaintiff's nephew. Because it appeared that the pepper spray had momentarily stopped the plaintiff, Officer Nelson directed plaintiff's nephew to escort plaintiff's wife to the bathroom to wash her face, and Officer Nelson then went to the front door to radio for additional support.

After being sprayed with pepper spray in the breakfast area by Corbeau, plaintiff entered the living room area where Officer Corbeau was located. When Officer Nelson returned from his radio call, plaintiff began moving toward him. Officer Nelson stated that plaintiff used profanity and swung his arms "like he [was] reaching out to punch [me]." Officer Nelson pulled out his pepper spray and repeatedly warned plaintiff to keep his distance. According to Officer Nelson, these warnings went unheeded and although he backed away from plaintiff, plaintiff attempted to strike Officer Nelson.^[5] Officer Nelson deflected the attempt and then used his pepper spray on plaintiff.^[6]

Following this, plaintiff began moving toward Officer Corbeau, who retreated by moving into a hallway that connected to the living room. Officer Corbeau described plaintiff's movement toward him as extremely fast, his countenance as snarling, his eyes as bulging out, and plaintiff as showing no apparent reaction to the pepper spray. Officer Corbeau also stated that plaintiff's arms were flailing about and that he swore that he was going to kill Officer Corbeau. Officer Nelson corroborated Officer Corbeau's description of plaintiff's movement and threats.^[7] As plaintiff continued to approach at Officer Corbeau, Officer Corbeau repeated his *892 warnings to plaintiff to stop advancing.^[8] By this time, Officer Corbeau retreated approximately four feet down the approximately fifteen-foot hallway, unholstered his gun, and shot plaintiff three times, once in the groin and twice in the torso area. Officer Corbeau stated that he was forced to shoot from the hip because plaintiff's proximity prevented him from extending his arm. After being shot, plaintiff took a few steps away from Officer Corbeau and fell onto his side.

On September 1, 2000, plaintiff filed a three-count complaint against in the Fairfax County Circuit Court. Count I alleges that defendants violated plaintiff's federal constitutional rights as guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments. Counts II and III are Virginia state law claims for gross negligence and assault and battery, respectively. On October 11, 2000, defendants removed the case to federal court. Then, on April 13, 2001, plaintiff filed a motion for partial summary judgment, and each defendant responded by filing a cross-motion for summary judgment. After briefing and oral argument, summary judgment was granted in favor of Officer Nelson, Chief Manager, and the County of Fairfax on all counts. See Clem v. County of Fairfax, Civ. A. No. 00-1684-A (E.D.Va. May 29, 2001) (Order). Summary judgment was granted in favor of Officer Corbeau on the excessive force claim relating to his use of pepper spray, but was denied in all other respects. See id. At issue here is whether Officer Corbeau is entitled to qualified immunity with respect to the cause of action in Count I, which alleges that the use of deadly force in the circumstances was a violation of plaintiff's Fourth Amendment rights.

II.

Government officials are entitled to qualified immunity for civil damages to the extent that "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."^[9] More specifically, "[a] police officer should prevail on an assertion of qualified immunity if a reasonable officer possessing the same information could have believed that his conduct was lawful."^[10] And, where a defendant seeks qualified immunity, "a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. ___, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001).

Qualified immunity applies only in the context of a validly alleged constitutional *893 violation. Without such a violation, qualified immunity is obviously unnecessary; in that event, the underlying claim would simply fail. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991). Thus, the threshold question that must be addressed before engaging in the qualified immunity analysis is whether the facts alleged, taken in the light most favorable to the plaintiff, establish that the officer's conduct violated a constitutional right. See Saucier, 121 S. Ct. at 2156; Siegert, 500 U.S. at 232, 111 S. Ct. 1789. This question is easily answered here in the affirmative, given plaintiff's allegation that Officer Corbeau violated his Fourth Amendment right to be free from the use of deadly force unless the "officer has sound reason to believe that a suspect poses a threat of serious physical harm to the officer or others."^[11] Specifically, plaintiff argues that Officer Corbeau shot him (three times) under circumstances that did not warrant or justify the use of deadly force. In this regard, plaintiff alleges that he was unarmed, that he posed no threat of serious bodily injury to Officer Corbeau or others, and finally, that Officer Corbeau could not and did not perceive that plaintiff posed such a risk. These allegations, taken in the light most favorable to plaintiff, state a valid claim for excessive use of police force in violation of the Fourth Amendment. Given that plaintiff has alleged a valid Fourth Amendment excessive use of deadly force claim against Officer Corbeau, it remains to be seen whether, on the basis of the developed factual record, Officer Corbeau is entitled to qualified immunity.

Because qualified immunity turns on whether the officer's conduct violates a clearly defined constitutional right of which a reasonable officer would have known, the next step in the analysis is to define the constitutional right involved "at the appropriate level of specificity."^[12] Once this is done, the qualified immunity analysis proceeds to ascertain whether the right so defined was clearly established at the time of the incident. If the right was not clearly established in the law at the time, no further inquiry is necessary, as qualified immunity is warranted under these circumstances. See Saucier, 121 S. Ct. at 2157. But, if the right infringed was clearly established, a final inquiry is necessary to complete the analysis. This final inquiry asks the fact-specific question whether a reasonable officer could have believed, in the circumstances, that his behavior was lawful.

There is no doubt that the right at issue herethe right to be free from the use of deadly force absent a belief by the officer that the suspect poses a threat of serious physical harmhas long been clearly established.^[13] So, then, the final question to address is whether it would have been clear to a reasonable officer that Officer Corbeau's use of deadly force "was unlawful in the situation he confronted."^[14]*894 To answer this final question, it is necessary to canvass the factual record for what it discloses about what Officer Corbeau knew and perceived at the time, for these are the predicate facts for determining how a reasonable officer would respond in the circumstances at bar. In the context of this case, the final question in the qualified immunity analysis is whether or not it would have been clear to a reasonable officer standing in Officer Corbeau's shoes at the time of the shooting that plaintiff posed a risk of serious physical harm to Officer Corbeau or others. If the undisputed factual record discloses that it would have been clear to a reasonable officer that plaintiff posed such a threat, then Officer Corbeau is entitled to qualified immunity.^[15] On the other hand, if the undisputed record discloses that the opposite would have been clear to a reasonable officernamely, that plaintiff did not pose such a risk then Officer Corbeau's claim of qualified immunity would fail. Of course, if the record reflected that the facts concerning what Officer Corbeau knew and perceived are disputed, a final determination on qualified immunity cannot be made, for as the Fourth Circuit recognized, the issue of qualified immunity is "ripe for summary judgment" only "[i]n the absence of a genuine dispute as to the reasonableness of the officers' perceptions."^[16]

*895 A close review of the current record compels the conclusion that neither summary judgment nor qualified immunity can be determined at this time because there remain disputes regarding what Officer Corbeau actually perceived and the reasonableness of his conclusion either that plaintiff was armed or that he posed a threat of death or serious physical injury. Specifically, the following two facts remain in dispute: (i) whether plaintiff made a statement in the kitchen that he had "something that could beat anything that [Corbeau] had on his belt" and (ii) whether at the time of the shooting Officer Corbeau actually and reasonably believed that plaintiff was armed. Both of these disputed issues are plainly material. The disputed statement by plaintiff in the kitchen is central to the reasonableness of Officer Corbeau's claim of concern that plaintiff posed an immediate risk of serious physical injury to himself or others. If Officer Corbeau's version of plaintiff's statement is accepted, then Officer Corbeau might be entitled to qualified immunity. Quite clearly, if plaintiff had a gun in his possession, or if it was reasonable to assume that he was armed at the time of the shooting, qualified immunity would be appropriate. This is so because the "Fourth Amendment does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists."^[17]

On the other hand, if the version of plaintiff's statement offered by plaintiff's wife and nephew is credited, then Officer Corbeau could not reasonably have thought plaintiff was armed. In that event, Officer Corbeau would not be entitled to qualified immunity for the use of deadly force, because he could not reasonably have believed that plaintiff posed an immediate risk of serious physical harm to himself or others. Plainly, police officers cannot use deadly force against a mentally ill person who is neither armed nor reasonably perceived to be armed, and who has committed no crime, merely because of a fear that the person might take the officer's weapon. See Garner, 471 U.S. at 11-12, 105 S. Ct. 1694 (defining threat of serious bodily injury).^[18] Police officers, who routinely face challenging and life-threatening situations, are not privileged to use deadly force based on no more than this fear. Instead, retreat and/or a lesser degree of force would be warranted in those circumstances, especially where, as here, Officer Corbeau had observed the ease with which Officer Nelson parried plaintiff's advance. It is, of course, inescapable that in analyzing the reasonableness of Officer Corbeau's decision to shoot plaintiff three times, the Court must engage in some amount of "20-20 hindsight," concerning the degree of force employed. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); see Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994). But, while "[d]etached reflection cannot be demanded in the presence *896 of an uplifted knife,"^[19] not only reflection, but a response of lesser force should be expected where there is no knife and no reasonable fear of serious bodily injury.^[20]

Moreover, it is disputed whether Officer Corbeau even believed, at the time of the incident, that plaintiff was armed. In his statements immediately after the incident, Officer Corbeau initially stated that the cause of the shooting was not a concern that plaintiff was armed, but rather his fear that plaintiff would be able to take his gun away from him. It was not until a later deposition that Officer Corbeau argued that the shooting was justified because he feared plaintiff might have a weapon. In addition to these inconsistent statements, the veracity of Officer Corbeau's latter statement is questionable in light of the fact that the actions of the officers, up until the moment of the shooting, were inconsistent with a belief that plaintiff was armed. Specifically, neither Officer Corbeau nor Officer Nelson attempted to restrain plaintiff after the first use of pepper spray in the kitchen. In addition, Officer Corbeau stood by and watched when plaintiff began charging at Officer Nelson in the living roomconduct that flatly contradicts a belief that plaintiff was armed. It seems more likely that, had Officer Corbeau genuinely believed plaintiff was armed, he would have drawn his weapon or taken other action to protect Officer Nelson from an armed attack. In short, the record reflects a genuine dispute concerning Officer Corbeau's actual belief at the time of the shooting.

III.

Accordingly, the parties' cross-motions for summary judgment must be denied, and for these same reasons, plaintiff's motion to alter or amend must also be denied. This result reflects the clear principle that the qualified immunity doctrine's important purpose of saving officers from the burden and expense of litigation in appropriate circumstances does not trump the parties' right to have a fact-finder resolve disputed issues of fact material to the doctrine's application.

An appropriate Order has issued as to summary judgment, and an appropriate order will issue as to plaintiff's motion to alter or amend.

Once it is decided that an officer has no reasonable apprehension of immediate serious physical harm or death, the Fourth Amendment excessive force question becomes what degree of force is reasonable in the circumstances. See Graham, 490 U.S. at 396-97, 109 S. Ct. 1865.

This about sums about the idiocy we are paying for

US Court of Appeals for the Fourth Circuit - 907 F.2d 1459 (4th Cir. 1990)Argued Jan. 11, 1990. Decided July 12, 1990

Peter David Greenspun, Klein & Greenspun, Fairfax, Va. (Sarah Deneke, Klein & Greenspun, Fairfax, Va., on the brief), for plaintiff-appellant.

David John Fudala, Hall, Markle, Sickels & Fudala, P.C., Fairfax, Va., for defendants-appellees.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

MURNAGHAN, Circuit Judge:

Discharged Fairfax County Police Officer Gary Riccio brought an action pursuant to 42 U.S.C. § 1983, alleging that the process by which the decision to discharge him was made violated his procedural due process rights under the Fourteenth Amendment of the United States Constitution. Riccio named as defendants the County of Fairfax, Virginia, Fairfax County Executive J. Hamilton Lambert, Fairfax County Police Department Chief of Police John E. Granfield, and the Board of Supervisors of Fairfax County. After a hearing on motions for summary judgment brought by all the parties, the district court granted summary judgment in favor of the defendants. Riccio has appealed.

On June 24, 1987, Ann Elizabeth Stark contacted the Fairfax County Police Department ("the Department") to report that she believed that Riccio had made several obscene phone calls to her. Stark had tape recorded two of the calls. That evening, Stark informed Riccio's supervisor, Lieutenant Phillip Lively, that she received the alleged calls on June 21, 1987, and June 24, 1987. Stark apparently knew Riccio, first becoming acquainted with him when she was in high school and he, while on duty, would spend time on school grounds. The two apparently had subsequent encounters.

Lively immediately contacted the Department's Internal Affairs Section, which assigned Sergeant Steven Hardgrove to investigate the matter. Later that evening, Hardgrove contacted Riccio and interviewed him at some length. At the interview, Riccio denied making the calls. Riccio acknowledged that he knew Stark and that he first met her while she was in high school. He told Hardgrove that the relationship he established with Stark and other high school students was for the purpose of improving the image of the police department generally and establishing himself as a police officer to whom they could turn. He also informed Hardgrove that he was visiting his parents in Pennsylvania on June 21, the first day of the alleged calls to Stark, and he provided Hardgrove with specific information regarding his activities on June 24, the second day of the alleged calls to Stark.

After the interview, at 1:00 a.m. on June 25, Hardgrove informed Riccio that he was relieved of duty, with pay, pending further investigation of the matter. Also on June 25, Riccio received written notice that he was being investigated for violating Department Regulations 201.3 (governing obedience to laws and regulations) and 201.7 (governing standards of conduct).¹ Hardgrove instructed Riccio not to discuss the investigation with anyone.

As Hardgrove proceeded with his investigation, he learned that earlier in 1987, a woman named Jennifer Dundas had accused Riccio of making obscene phone calls to her. Although the record is not clear, it appears that Dundas decided not to pursue a formal complaint and the Department did not make any formal charges. Although, in his brief before us, Riccio claims that he was "cleared of all allegations of making obscene phone calls" to Dundas, there is no such indication in the record. Indeed, the report of Lt. Lively, who investigated the Dundas incident, states that Riccio admitted to calling Dundas, although he characterized the call as a practical joke.

Shortly after Riccio's suspension, several other relevant events occurred. According to Cheryl Beaudoin, a police dispatcher in Vienna, Virginia, Riccio informed Beaudoin, on June 25, of the charges pending against him.² On July 7, the Department conducted a polygraph exam on Riccio. Riccio contends that the Department ordered him to take the exam and in deposition testimony Hardgrove conceded that his directive was probably construed as an order. However, it is also true that the idea of taking a polygraph was first proposed by Riccio on the night of his suspension.³ Fairfax County Police Investigator Guy Morgan administered the exam and concluded that Riccio was "deceptive" in his responses.

Sheila Patterson appeals an order of the district court dismissing her amended complaint without prejudice. Patterson's complaint alleged that her employer, the police department of Fairfax County, Virginia, discriminated against her on the basis of her race and her gender, in violation of myriad civil rights provisions, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Patterson also alleged that she had been deprived of her civil rights under 42 U.S.C. §§ 1981 and 1983, and that the defendants¹ were liable under state law for intentional infliction of emotional distress.

The district court dismissed the entire amended complaint on the ground that, at the time Patterson originally filed this lawsuit, she had not obtained a letter from the U.S. Department of Justice (DOJ) permitting her to proceed in federal court with regard to the most recent allegations of Title VII violations contained in her complaint. Because the court erred both in requiring Patterson to have obtained a right-to-sue letter and in granting a motion to dismiss made only after Patterson had become entitled to such a letter, we reverse and remand this case for further proceedings.

According to the amended complaint, Patterson began working as an officer in the Fairfax County Police Department in 1983. In mid-1987, she filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging race and gender discrimination, harassment, and retaliation for having filed an internal grievance. She later filed another charge after being required to undergo, between June and October 1989, three psychological examinations to determine her fitness for duty. In August 1992, the EEOC finally issued "Just Cause Determinations" (JCDs) on both charges.²

About seven months later, in March 1993, Patterson was accused of throwing a message pad at another officer, striking him near an eye. Thereafter, Patterson was suspended and ordered to submit to yet another psychological examination. As a result of the March incident, Patterson filed a third charge with the EEOC. She also requested and received a "right-to-sue" letter from the DOJ regarding the two earlier charges.³ On June 16, 1993, while the third charge was still pending before the EEOC, Patterson filed her original complaint in the instant action. The EEOC acted much more swiftly on the third charge, issuing a JCD on September 14, 1993. Patterson did not, however, immediately request a right-to-sue letter on the third charge.

On December 6, 1993, the defendants moved for summary judgment, arguing that the doctrine of laches prevented Patterson from asserting her Title VII claims insofar as they were based on the incidents that were the subjects of the first two charges. At a hearing on the motion on December 17, the district court and Patterson's attorney agreed that events in 1993 may have been sufficient, if proven, to establish a continuing violation that would, in effect, revitalize the older incidents.⁴

During the hearing, the court asked Patterson's attorney whether a right-to-sue letter had been issued regarding the latest incidents. Counsel, apparently under the impression that the court was instead asking about the JCD that had been issued that September, incorrectly replied in the affirmative.

Because counsel desired to plead the latest incidents in greater detail--in particular the police chief's subsequent attempt to fire Patterson, which she alleged was in retaliation for her having filed the third charge--the court dismissed Patterson's complaint without prejudice and granted her ten days to file an amended complaint.

On the same day as the hearing, Patterson's attorney contacted the DOJ and requested a right-to-sue letter on the third charge. The letter was faxed to him on December 22, and was attached to the amended complaint when it was filed on December 27.

On January 7, 1994, the defendants filed, for the first time, a motion to dismiss based in part on jurisdictional grounds. In support of their motion, the defendants stated, quite correctly, that the latest right-to-sue letter had not been in existence at the December 17 hearing. Patterson's attorney confirmed to the court what had actually happened, and apologized for having misspoken. Upon being apprised of the facts, the court stated:

I don't believe that at the time this suit was filed, without a right-to-sue letter on the '93 claims, that I have any jurisdiction. Now, what I will do is grant the motion to dismiss without prejudice, and you can take it from there. And whether or not there is a [continuing violation], I will have to deal with when and if I see it again.⁵ But I don't believe that I can permit the amendment of a claim which was filed without jurisdiction here. And I believe that right-to-sue letter on the '93 claim is necessary for you to have jurisdiction, because, absent the '93 claim, everything else is timebarred.

True to its word, the district court dismissed the amended complaint without prejudice. Instead of refiling, Patterson chose to appeal.

The district court erred in requiring the actual issuance of a right-to-sue letter. Patterson's administrative remedies are deemed to have been exhausted--and jurisdiction thus conferred on the district court--when she became entitled to such a letter. Moore v. City of Charlotte, 754 F.2d 1100, 1104 n. 1 (4th Cir.), cert. denied, 472 U.S. 1021 (1985); Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091, 1093 (4th Cir. 1982); White v. Federal Express Corp., 729 F. Supp. 1536, 1552 (E.D. Va. 1990); Assa'ad-Faltas v. Commonwealth of Virginia, 738 F. Supp. 982, 985 (E.D. Va. 1989).⁶ As to her claim that the defendants retaliated against her for having filed the 1993 charge with the EEOC, Patterson does not even need a right-to-sue letter. Nealo

Where thugs go to get a job

The best thing to do is to not get involved with cops

In 1986, pretty Jane Prichard, 28, of Clarksburg, Md. was a graduate student at the University of Maryland. As part of her program, she was to conduct botany experiments in the field. On September 19, a Saturday, she drove up to the Blackbird Forest State Park, in Delaware, 115 miles from her home, to conduct her work. She arrived at around 7 a.m.

She had been to the park many times and had spent many hours there in past.

A squirrel hunter named Michael P. Lloyd recalled seeing her at 10 AM.

At 5:30 p.m, an elderly New Jersey couple who were camping in the forest went for a walk and found Prichard’s body sprawled near her truck, a 1980 Chevy Blazer. She was partially disrobed, with a gunshot to her back. The body was about 20 feet from her equipment, and the shot to the back would indicate that she had gotten away from her attacker and ran for the truck when she was shot with a shotgun. There was no sign of a struggle.

Detectives figured that Jane’s murder was a crime of opportunity and the suspect was one of the 25 to 50 hunters that were at the park that day, as it was the start of squirrel hunting season. She worked undisturbed for a while because she had an opportunity to set up her equipment. Then the intruder arrived. She was sexually assaulted or in the process of being sexually assaulted when she ran for her car.

Michael P. Lloyd, the squirrel hunter was home watching the news when he learned about the murder. He had been there that day and recalled seeing Jane Prichard. He phoned the police and gave them a description of a man he had seen there. "I thought it was my civic duty." He said later. When the police asked him to comedown to the scene of the crime, he did. He said he saw Prichard talking to another hunter at around 10 AM and that the man was a white male, around 5'9" with a medium build and wearing a brown jacket and blue jeans. He helped them to create a drawing. But instead of thanking him, the police made him their number one suspect.

Remarkably he was charged with first-degree murder and weapon possession. Mike Lloyd, a janitor, was released from prison after ten months after his bail was reduced to $10,000. The next day the state announced it would drop the charges for lack of evidence. What actually happened was that the cops case fell apart when DNA testing of a hair found at the scene proved conclusively that he could not be the killer.

"I would never make that mistake again" (Trying to help the police) Mike Lloyd said when he was released from prison. "My advice is, 'Don't get involved. When I first got out I had to pinch myself," he said. "It wasn't till Sunday when I drove my truck that it finally dawned on me. Yeah. I'm out."

Bsically he got off ....scot free

In 2011 Jennifer Webb, a 32 year Buena Vista Michigan woman discovered she was five months pregnant. She didn't reveal who the father was married. In August of that year, Jennifer’s body was found, strangled to death with an extension cord. Police initially ruled it a suicide, but something wasn’t right about the death scene. It looked stage. Further investigation proved the officer who reported finding the body, Kenneth T. Bluew, was the unborn child’s (She eight months pregnant) father and had killed Jennifer, staging the killing to look like a suicide. He was serving life in prison with no hope of parole until November 3, 2014, Saginaw County Circuit Judge Darnell Jackson "reluctantly" reduced the cop's sentence due to an order from the Michigan Court of Appeals.

And how much did this cost the county?

John McNally, Alexandria, Va. (Murphy, McGettingan, McNally & West, Alexandria, Va., Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., Stephen W. Bricker, Bricker & Zerkin, Richmond, Va., on brief), for appellants.

Robert Lyndon Howell, Asst. County Atty., Alexandria, Va. (David T. Stitt, County Atty., Peter D. Andreoli, Jr., Asst. County Atty., Fairfax, Va., on brief), for appellees.

Before BUTZNER, PHILLIPS and MURNAGHAN, Circuit Judges.

Plaintiffs are two couples whose respective residences were searched by officers of the Police Department of Fairfax County, Virginia, without search warrants or consent, but on the supposed authority of a valid arrest warrant for another person suspected but not found to be in either of the residences.

The plaintiffs brought an action under 42 U.S.C. § 1983 against the officers who conducted the search and their police chief seeking declaratory, injunctive, and monetary relief. The district court dismissed on the basis that the searches were constitutional by reason of the arrest warrant.

In accordance with the opinion of the Court of Appeals, the court hereby declares that the searches complained of in this suit violated the plaintiffs' rights under the Fourth Amendment to the United States Constitution, in that they were conducted without a search warrant, and did not fall under any of the exceptions to the Fourth Amendment's warrant requirement.

Reasonable or probable cause to believe that a person for whom an arrest warrant has been issued is on premises belonging to a third party, standing alone, is not sufficient under the Fourth Amendment to authorize an invasion of the privacy of that person's home.

Furthermore, it is the order of this Court, consistent with the opinion of the Court of Appeals, that defendants, their agents, employees, and all members of the Fairfax County Police Department are hereby permanently enjoined from conducting searches of third parties' homes in search of persons for whom they may have an arrest warrant, without first obtaining a properly issued search warrant for those premises, unless consent or exigent circumstances are present.

The defendant Chief of Police is hereby directed to inform all Fairfax County police officers of this Order, and to take such steps as are reasonably necessary to ensure compliance with it.

Fairfax police chief plans to hire more officers, modernize department

It isn't about implementing a series of changes within the department.

It isn’t about undergoing procedural-justice and implicit-bias training.

It isn’t about a use-of-force training program.

It’s about the low quality of men and women the Fairfax County Police hire. It’s about their thug mentality.

I’m not wrong. It’s part of the departments mentality. Look at the punk who used a taser on a guy within seconds after arriving on the scene. Look at the mountain of law suits facing the department. Look at the fact that every third year of so, the cops murder someone.

Change the entitled, punk attitude and watch how much changes for the better for all of us.

Young people, considering a job (its not a career its a job) with the police? Well read this because police departments are FILLED with people like this guy...do you really want to be around people like him?

Judge denies motion to drop assault charges against Fairfax Co. police officer

Neal Augenstein |

Despite harsh criticism of Fairfax County, Virginia, prosecutors, a circuit court judge has denied a defense motion to drop assault and battery charges against police officer Tyler Timberlake, who used a Taser on a disoriented man on June 5, 2020.

Timberlake’s lawyer, Brandon Shapiro, argued the three misdemeanor counts against his client should be dropped because prosecutors failed to turn over evidence the suspended officer could use in his defense.

In a July 2 ruling, Circuit Court Judge Brett Kassabian said prosecutors, in the office of Commonwealth’s Attorney Steve Descano, “failed to promptly and timely disclose exculpatory evidence,” and didn’t turn over the names or statements of any expert witnesses who support Timberlake’s argument that he used the stun gun on a man he mistook for another Black man who he knew was a PCP user with a history of fighting police.

However, the judge said the prosecution’s shortcomings in this case didn’t meet the standard required to throw out the case.

“Fifteen months remain between now and Defendant’s trial, and the court cannot find that defendant was prejudiced by the delay,” Kassabian wrote.

Kassabian said, “The Commonwealth has failed to meet its duty to disclose exculpatory evidence timely.”

While not meriting dismissing the case, Kassabian said prosecutors should be disciplined.

“To turn a blind eye and acquiesce in prosecutorial pronouncements of purported open file discovery not only adversely affects defendant’s rights to a fair trial, but also shakes the public’s confidence in a process that is based on justice and fairness,” Kassabian wrote.

In crafting a measure, Kassabian said prosecutors will not be allowed to have an expert witness — who is allowed to offer opinions — talk about Timberlake’s tactics.

“The Commonwealth shall be prohibited from introducing any expert testimony in its case in chief related to the purported unreasonableness and excessiveness of the Defendant’s actions or deviation from general orders,” Kassabian wrote.

However, jurors would likely be able to hear from a fact witness — for instance, a member of the county police department — who could describe officers’ training.

Descano issued a statement to WTOP and said he’s glad the judge found his office didn’t commit a violation resulting in a dismissal.

“I look forward to providing a jury of Fairfax County residents an opportunity to decide the outcome on the case’s merits. I take seriously the issues raised in the order, have reorganized the team working on this case, and directed them to immediately reexamine all potential discovery elements,” Descano said.

Timberlake remains on administrative leave. A police spokesman said the department’s internal affairs investigation will continue after Timberlake’s criminal case is resolved.

Va. officer accused of unnecessarily using Taser contends prosecutors are withholding evidence

Body cam video shows white officer using stun gun on disoriented black man in Virginia

Fairfax County Officer Tyler Timberlake was arrested June 6, a day after using a stun gun on a victim multiple times and sticking his knees on the man’s neck. (Fairfax County Police Department)

By Justin Jouvenal

June 21, 2021 at 7:04 p.m. EDT

A Fairfax County police officer accused of using excessive force, including deploying a Taser, against a Black man has asked a judge to dismiss the case, claiming prosecutors have not disclosed evidence that would bolster his defense.

An attorney for Officer Tyler Timberlake wrote in a motion that he has learned prosecutors have not turned over a lengthy police report, a 911 call, a bystander video of the incident and an interview with the victim.

The attorney also wrote that the issue is part of what he contends is a broader pattern with the office of Fairfax County Commonwealth’s Attorney Steve Descano not revealing potentially exculpatory evidence in the case and misrepresenting what material it has collected.

“The Commonwealth has repeatedly dragged its feet and has deprived Officer Timberlake of his due process and right to a fair trial,” Timberlake’s attorney wrote in the motion.

Descano’s office panned the claims. In a court filing, prosecutors said the office has complied with a judge’s order governing evidence, pointing out that it requires such materials only be produced no later than 60 days before the trial. The trial is scheduled for September 2022, but Timberlake is hoping to move it up to this August.

Descano’s office also wrote in its response to the motion that it has provided substantial discovery already, including two police reports, crime scene photos, hospital records and Timberlake’s disciplinary records. They say Timberlake’s motion is a ploy.

“These accusations are aimed at distracting from the fact that the defense is the party seeking to ignore the court’s timeline,” Descano’s spokesman, Benjamin Shnider, said in a statement. “Descano holds his team to the highest possible standard with regards to transparency and will continue to fight any effort to prevent a jury of Fairfax County community members from hearing this case.”

The defense claims come after a judge criticized Descano’s office and Fairfax County police for waiting months to hand over exculpatory evidence in a first-degree murder case against an 18-year-old late last year.

Judge says police, prosecutors failed to turn over evidence in timely fashion

They are also notable because Descano won election in 2019 promising to offer defendants greater transparency about the evidence against them, saying it would make the justice system fairer and decrease the chances of wrongful convictions.

“Virginia’s rules force defendants to try to craft a defense without most of the information one would need to do so,” Descano wrote in his election platform.

Timberlake, who is White, is facing three counts of misdemeanor assault and battery for allegedly deploying a Taser and punching a Black man seconds after arriving on the scene of a call in the Mount Vernon area in June 2020.

La Monta Gladney, who did not appear to pose a threat, can be heard and seen mumbling incoherently and pacing in circles in a body-camera video of the incident that was later released by police. Paramedics and another Fairfax County police officer were attempting to coax Gladney into an ambulance before Timberlake pulled up in his cruiser.

Descano and then-Fairfax County Police Chief Edwin C. Roessler Jr. quickly condemned the use of force, and Descano’s office filed charges against Timberlake.

Timberlake plans to argue at trial that he mistook Gladney for another man, who has a history of fighting with police, was a PCP user, was known to carry weapons and had outstanding warrants for his arrest, according to the motion to dismiss.

In addition, Timberlake argues that Gladney ignored his commands and actively resisted arrest, a contention prosecutors and an attorney representing Gladney in a civil case said is not evident on the body-camera video.

Timberlake’s attorney wrote that his ability to mount a defense has been frustrated by his lack of access to the case against his client. Before the current motion, the attorney had filed two others seeking evidence that he felt Descano’s office should have disclosed.

In the new motion, the attorney wrote that Descano’s office has had a report by the lead detective in the case for months but only represented that it had two others that were produced by Fairfax County police.

He also wrote that Descano’s office represented in court that it had no statements from Gladney, but the attorney later learned prosecutors had a video of Gladney giving an interview to an amateur journalist about his encounter with Timberlake. The defense believes the video could be used to challenge Gladney’s testimony at trial.

The defense said they have also learned prosecutors have a video of the incident taken by a bystander that was posted to Snapchat. They also want a 911 call they say was made by Gladney which they contend suggests he was on PCP at the time of the encounter.

Descano’s office wrote that whether it has such evidence, Timberlake’s attorney is ignoring the basic fact that the judge has set a deadline for the material to be turned over more than a year from now. The motion accused Timberlake’s attorney of repeatedly attempting to “manufacture” violations of the order to get the case dismissed.

Black man Tasered by White Fairfax County police officer files federal suit

One unusual aspect of the motion is the defense claim that they learned from an “outside source” that prosecutors had evidence they had not disclosed. The defense did not reveal the source in its filing, or say if that person was a county employee, and the attorney, Brandon Shapiro, did not respond to requests for comment.

Under the 1963 Supreme Court decision Brady v. Maryland, prosecutors are required to turn over any evidence that might help exonerate a defendant. Timberlake’s attorney wrote in his filing that he thinks Descano is not living up to his campaign promise. A judge is set to hold a hearing on the motion Friday.

Fairfax County police union worried about staffing shortage

....then your game. Stop hiring goons and John Wayne wanna-be's.

Ha!

Ill say it again, they're nothing but a bunch of fucking punks and they're out of control

Fired D.C. firefighter to get $390K from Fairfax County over wrongful arrest

Elon Wilson spent 21 months in prison after his arrest by former Fairfax County Officer Jonathan A. Freitag

Oct 11, 2021

By Janelle Foskett

WASHINGTON — A former D.C. Fire and EMS firefighter will receive nearly $390,000 from Fairfax County, Virginia, to settle a lawsuit alleging a wrongful arrest that resulted in his 21-month imprisonment.

Elon Wilson filed a federal lawsuit in July, three months after a judge vacated his convictions and ordered him freed. The judgment followed an internal investigation into Jonathan A. Freitag, the Fairfax County officer who arrested Wilson

The lawsuit stemmed from an April 2018 incident in which Freitag pulled over Wilson, ostensibly for crossing a yellow line on the road, failing to pull over when signaled and having illegally tinted windows, according to court records. Freitag arrested Wilson after finding oxycodone and handguns in the car. Wilson said they were not his.

Wilson was subsequently fired from D.C. Fire and EMS.

In July 2019, Wilson was sentenced to a little over three years in prison.

Around the same time, Fairfax internal affairs investigators began reviewing Freitag’s traffic stops. Freitag ultimately admitted that he had made “pretextual” traffic stops, using a false reason to pull over a vehicle. In February 2020, Wilson’s lawyer, Marvin D. Miller, filed a motion seeking information about the internal affairs investigation.

The Washington Post reported that, in April 2021, Fairfax County Circuit Court Judge Daniel E. Ortiz vacated Wilson’s convictions and ordered him freed, saying “Freitag’s fabricated grounds for the stop, police report, and warrant made under oath fundamentally tampered with the judicial machinery and subverted the integrity of the court itself.”

Following Wilson’s release, Miller and civil rights lawyer Victor M. Glasberg filed a federal suit against Fairfax on Wilson’s behalf. Fairfax began settlement negotiations and, on Oct. 7, agreed to pay Wilson $390,000.

Freitag had defended his actions in multiple interviews.

How very PC of you….once again, the Fairfax County Police play politics instead of working at policing

Fairfax County Police Remove Arrest Blotter Over ICE Data Sharing Concerns

Colleen Grablick

Community advocates said the list violated a new law that limits local law enforcement’s interactions with immigration enforcement agencies.

Michael Pope / WAMU

Fairfax County’s police department will no longer publish the names and personal information of people arrested for crimes, heeding concerns from advocates that the list endangered immigrant residents.

Earlier this year, the county’s Board of Supervisors passed a Public Trust and Confidentiality Policy, cutting off all voluntary cooperation and information sharing between local agencies and federal immigration authorities. But advocates said the arrest blotter, which lived on the police department’s website and included information like names and last known addresses, continued to violate the law, commonly known as the Trust Policy, by allowing Immigration and Customs Enforcement officials to target immigrant residents.

“We believe that [the arrest blotter] violated the Trust Policy, because it’s not necessary to release that personal information,” says Diane Alejandro, a lead advocate with ACLU People Power Fairfax. “It just is, more than anything, a shaming list.”

According to Anthony Guglielmi, a spokesperson for Fairfax County police, the county originally began publishing that type of information online in 2016 in order to limit the amount of calls the department received from residents seeking information about arrests in their neighborhood.

The arrest blotter came down last Friday, after a review of the practice by ACLU People Power Fairfax found the blotter to be non-compliant with the Trust Policy, Guglielmi said. The Washington Post first reported the decision.

The county will still be running a weekly crime roundup on the department’s website, but will withhold names and any other information regarding the individuals arrested.

“Important information will continue to be shared with the community, and arrest data remains easily accessible via FOIA to residents and reporters,” County Supervisor Dalia Palchik, one of the nine supervisors that voted in favor of the Trust Policy policy, wrote in a statement to DCist/WAMU.

Alejandro, who advocated for the passage of the Trust Policy, say ACLU People Power Fairfax supports the continuation of a crime roundup, without the names and personal information of individuals arrested. If someone is truly interested in gathering that information, she says, there are plenty of ways to dig for it on the internet — instead of the police proactively offering it.

“It’s not like folks are being left in the dark,” Alejandro says, adding that arrest information will still be available to members of the public upon a FOIA request. “I think that honestly smacks of racism to suggest that the interests of people who just want to know the name of every person arrested to satisfy their curiosity should take precedence over the lives of immigrants.”

Unlike in D.C. or Maryland’s Montgomery and Prince George’s counties, where the police force is overseen by the top elected official, the Fairfax County Police Department is under the purview of the Board of Supervisors. The Trust Policy, which passed the Board of Supervisors by a 9-1 vote in January, applies to all agencies across Fairfax County’s government. While the provisions of the new law allow cooperation with ICE officials if it is required or requested, the policy bars willful or voluntary local information sharing that would help immigration enforcement track down individuals.

Alejandro says she does not know of any residents that were targeted directly as a result of the arrest blotter, but that she and other advocates “know it happens.”

“We don’t need to hand [the information] to them on a silver platter,” Alejandro says. “We’re not going to volunteer information to ICE, and this is what the police were doing.”

A spokesperson for ICE denied that the agency used the Fairfax County’s arrest information to locate or apprehend any residents.

“ICE Enforcement and Removal Operations does not use police blotter data to identify immigration enforcement targets in Fairfax County, Virginia,” the spokesperson wrote in an emailed statement to DCist/WAMU. “ICE ERO officers use intelligence-driven leads to identify specific individuals for arrest.”

The removal of the arrest list marks the latest step in Fairfax County’s efforts to limit the county’s interactions with federal immigration agencies. In 2020, the county codified a policy that prevents police officers from asking or disclosing a person’s immigration status, or using immigration status as a determining factor when considering to take a person into custody on a misdemeanor charge.

Regionally, Arlington County officials are also considering ways to decrease local law enforcement’s engagement with ICE — last week, the Arlington County Board released the draft of a framework to increase protection of immigrant residents, including proposals to decrease the local police’s contact with immigration agencies.

Morrogh finds cop he doesn’t love. In other news, hell freezes.

Probe of fatal police shooting goes to federal authorities

By Justin Jouvenal/Post

The Fairfax County prosecutor has turned over the investigation of a fatal police shooting of an unarmed Springfield man to federal authorities, citing complications with the five-month-old case.

Commonwealth’s Attorney Ray Morrogh said the U.S. attorney’s office for the Eastern District of Virginia has agreed to continue the probe into the death of 46-year-old John Geer, who was shot during a standoff with Fairfax County police in August. No one has been charged in the incident.

“There is a conflict of interest that has arisen in the case,” Morrogh said Thursday. “And there is a second potential conflict of interest that has arisen out of my office. . . . This is the prudent thing to do.”

Morrogh declined to describe the nature of the conflicts because the investigation is ongoing. The U.S. attorney’s office said Thursday that it could not confirm or deny any investigation or comment on pending investigations.

Police went to Geer’s Pebble Brook Court home on Aug. 29 because of a report of a domestic disturbance. Geer’s father, Don Geer, said his son was upset because his girlfriend, the mother of his two children, had decided to leave him.

John Geer had thrown his girlfriend’s belongings in the front yard. She called police and told them that Geer had a firearm. Police said they tried for about 50 minutes to persuade Geer to leave the home, but he refused.

Don Geer said he watched the climax of the encounter. He said that he could not hear what officers were saying to his son but that he saw him standing with empty hands resting on top of a screen door at the home’s entrance.

At some point, John Geer began to slowly lower his hands and an officer opened fire, hitting Geer in the chest, his father said. Geer retreated inside and closed the door. A SWAT team eventually entered the home and found Geer dead.

Don Geer said detectives later told him that his son did not have a gun on him at the time of the shooting but that there was a holstered handgun a couple of steps from the front door.

Don Geer said it appeared to him that the shooting was unjustified, but he was unsure what to make of the probe being turned over to federal authorities.

“I don’t know whether that’s good or bad — if I had a better idea of why they are doing it, I could form an opinion,” he said.

Geer and friends of his son have been critical of how long the investigation has taken, but Morrogh said police and prosecutors were working to explore all the evidence. He did not think federal prosecutors would have to start from scratch.

“No one wants these things to linger on,” Morrogh said.

Our ink will outlast his career

Under the reign of former Chief of Police Rhorer the Fairfax County Police arrested a man for not wearing clothes in his house while he made coffee, set up an eye doctor on a gambling charge and then used the SWAT team to kill him. An investigation into the charge that the Doctor’s primary clients were cops has never been investigated. The police gunned down an emotionally unstable man because cop who shot him wrongly assumed the man was trying to escape. He wasn’t. The cops also shot dead four other citizens under highly questionable circumstances. The department under Rhorer was sued multiple times by citizens. So did they fire Rhorer? Naw they promoted him. According to news reports Rhorer draws a salary of $191,168 per year as Deputy Fairfax County Executive as well as a concurrent pension from the Fairfax County police of $173000 per year.

Occupation by force

According to the most recent U.S. Census figures, nearly one in five Fairfax residents (17.5 percent) is of Asian descent while Hispanics make up nearly 16 percent of Fairfax’s overall population. Those numbers drop considerably when applied to the Fairfax County Police Department, where only 4.3 percent of officers are Asian and 4.1 percent Hispanic. White officers make up 84 percent of Fairfax County’s 1,360-member police department, significantly higher than the county’s general population (54 percent white). Almost 90% of the force lives outside the county.

The law is a gun, which if it misses a pigeon always kills a crow; if it does not strike the guilty, it hits some one else. As every crime creates a law, so in turn every law creates a crime. Edward George Earle Lytton Bulwer-Lytton, 1st Baron Lytton

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. Louis D. Brandeis, part of his dissent in the case "Olmstead v. United States", 277 U.S. 438, 485 (1928)