Clem v. COUNTY OF FAIRFAX, VA, 150 F. Supp. 2d 888 (E.D. Va. 2001)
U.S. District Court for the Eastern District of
Virginia - 150 F. Supp. 2d 888 (E.D. Va. 2001)
July 17, 2001
150 F. Supp. 2d 888
(2001)
Robert CLEM,
Plaintiff,
v.
COUNTY OF FAIRFAX, VIRGINIA, et al., Defendants.
No. CIV. A. 00-1684-A.
United States District Court, E.D. Virginia, Alexandria Division.
July 17, 2001.
*889 Brien Anthony Roche, Johnson & Roche,
McLean, VA, for plaintiff.
Cynthia L. Tianti,
Assist. County Atty., Fairfax, VA, for defendants.
MEMORANDUM OPINION
ELLIS, District Judge.
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.
