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Westlake Legal Group > Thomas K. Plofchan
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Thomas K. Plofchan

MANAGER, ATTORNEY

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Thomas K. Plofchan, Jr. is the manager of Westlake Legal Group, a full service law firm located in Sterling, Virginia.  Mr. Plofchan’s practice has been located in Virginia since 1993.  He is admitted to the Virginia State Bar, and is authorized to practice before all courts and administrative agencies of the Commonwealth of Virginia, the United States Eastern and Western District Courts of Virginia, the Federal Fourth Circuit Court, the United States Bankruptcy Court, and the United States Supreme Court. He is a former member of the Board of Directors of the Loudoun County Bar Association.  

Previously, Mr. Plofchan has worked as a Special Programs Assistant in the Bureau of Democracy, Human Rights and Labor at the U.S. Department of State in both the Bush and Clinton Administrations, where he was instrumental in developing courses on civil/military relations and in teaching the concepts of humanitarian principles to military organizations in the U.S. and foreign countries.  He has also held positions at the Center for National Security Law, SAIC, and had his own consulting practice. He is a former Ford Fellow at the University of Virginia School of Law and is widely published.  In 1991, he was awarded the Bruno Bitker Prize for the best international law article of the year by the American Bar Association’s Committee on World Order Under Law.  

 

Mr. Plofchan graduated with distinction from the U. S. Naval Academy, receiving his B.S. in 1985.  In 1986 he was awarded an M.A. in Government with a specialization in National Security Studies from Georgetown University.  In 1992, he received his law degree from the University of Virginia.    

 

Mr. Plofchan has been married for more than 30 years and has three children. His family is actively involved in their Church, the Knights of Columbus, and seasonal sports activities offered within the Northern Virginia area.  He serves on the Board of Directors of The Westlake Foundation and is President of The Potomac Falls Professional Center Condominium Association.  

 

The following are noteworthy cases of Westlake Legal Group.  They do not represent all of Westlake Legal Group’s cases nor do they make a claim of predictability of outcome.  Each matter represented by Westlake Legal Group is unique and subject to analysis of its particular facts, circumstances, and the law attendant to the issues raised.  Westlake Legal Group makes no promise or guarantee of outcome with respect to any case for any client.

 
NOTEWORTHY CASES 

 

 
 

Virginia Circuit Court Cases

Davis v. Davis, 1999 Va. Cir. LEXIS 680, 1999 WL 378760 (Va. Cir. Ct. Feb. 10, 1999)

Case Summary

Procedural Posture

 

 

Plaintiff wife filed a bill of complaint for divorce from defendant husband and equitable distribution of their property, pursuant to Va. Code §§ 20-91 and 20-107.3, while defendant filed a cross-bill for divorce on fault grounds and for adoption of a premarital agreement that he alleged that the parties had entered into, pursuant to Va. Code § 20-149.

Overview

 

 

Prior to getting married, plaintiff wife and defendant husband discussed entering into a premarital agreement. She prepared a document and gave it to defendant a week before they married. After they married, separated, and plaintiff filed for divorce and equitable distribution of property, pursuant to Va. Code §§ 20-91 and 20-107.3, she could not recall if they had actually signed an agreement. Defendant insisted they had, in fact, signed the agreement and property should be distributed thereunder; however, he was unable to produce any evidence of a signed agreement. He also filed a cross-bill for divorce on fault grounds. Following a hearing, plaintiff moved for a no-fault divorce and defendant agreed. In a letter opinion, the court granted her a no-fault divorce, the parties having been separated for over a year. The court also ruled that defendant had the burden of proving an agreement and that the evidence failed to show that they had entered into a valid agreement under Va. Code § 20-149, which required a signed writing. Accordingly, the court classified the assets and liabilities of the parties as separate or marital. The marital property and debt were divided equally.

Outcome

 

 

A letter opinion was issued (a) granting plaintiff a no-fault divorce, by agreement, due to the parties having lived separate and apart for over a year; (b) ruling that the parties had not entered into a valid premarital agreement, defendant having failed to present evidence of a written agreement signed by both parties; (c) classifying property as separate or marital; and (d) dividing marital property and debts equally.

Davis v. Davis, 1999 Va. Cir. LEXIS 680 

Bradford v. Goodwin, 56 Va. Cir. 370, 2001 Va. Cir. LEXIS 473 (Va. Cir. Ct. 2001)

Case Summary
Procedural Posture
Plaintiff purchaser of a house sued defendant sellers of the house, seeking specific performance of a contract for the sale of the home. The purchaser moved to compel discovery.

Overview
The purchaser sought disclosure of communications between the sellers’ real estate agent and their attorney. The court held that the attorney-client privilege attached to communications of the client made to the attorney’s agents when such agent’s services were indispensable to the attorney’s representation. If a communication would have been privileged if made directly between an attorney and his client, it was equally privileged when made through the client’s agent or employee. The court found that acceptance of the contract by the purchaser was communicated to the sellers by the acceptance date provided for in the contract. Under the terms of the contract, the settlement date was to have been extended to remedy defects in title. Rather than correct the defect found in title, the sellers notified the purchaser of their desire to terminate the contract. As a result of the breach by the sellers, the purchaser was entitled to specific enforcement of the conveyance and to an award of reasonable attorney’s fees. What amounts an attorney charged his client in litigation did not automatically entitle the client to a dollar for dollar recovery against the opposing party.

 

Outcome
The court deferred ruling on the motion to compel. The court ordered settlement in accordance with the terms of the contract. The court also awarded counsel fees to the purchaser in the amount of $ 3,000.

 

 

Bradford v. Goodwin, 56 Va. Cir. 370, 370 (Va. Cir. Ct. Aug. 24, 2001)

Palum v. Quinn, 59 Va. Cir. 35, 2002 Va. Cir. LEXIS 119 (Va. Cir. Ct. 2002)

Case Summary
Procedural Posture

 

The case came before the court for argument on defendant student’s motion to dismiss in an action arising from an accident giving rise to plaintiff injured party’s personal injury claim. The initial service on the student through his mother was quashed. The student filed a motion to dismiss because, under Va. Sup. Ct. R. 3.3 and Va. Code Ann. § 8.01-275.1, he was not served with process within one year of the commencement of the action.

Overview
The court chose to interpret the rule of service within one year of commencement of suit in Va. Code § 8.01-275.1 and Va. Sup. Ct. R. 3.3 as an administrative rule rather than as a jurisdiction rule. In this light, the injured person’s actions were in good faith when he attempted service at the place he had reason to believe was the student’s usual place of abode. Also, the student was certainly aware that the injured person would probably refile after a nonsuit and the quashing of the first service. The student was not sued for the second time unexpectedly. The student’s attorney was aware that the injured person had at least attempted service within the one year. The student had shown no prejudice in defending the second motion for judgment because he was not validly served until a little over 15 months after the action was instituted. Therefore, the court opted not dismiss the case for lack of service.

 

Outcome
The motion to dismiss was denied.

 

 

Palum v. Quinn, 59 Va. Cir. 35, 35 (Va. Cir. Ct. Mar. 18, 2002)

In re Oxbridge Dev. at Cedar Crest v. Pulte Home Corp., 2002 Va. Cir. LEXIS 130 (Va. Cir. Ct. June 17, 2002)

Case Summary
Procedural Posture

 

Plaintiff assignee filed an action against defendant seller, alleging breach of a land purchase agreement. The seller filed a counterclaim against the assignee, alleging breach of that agreement, and a third-party complaint against a party that had signed the agreement but later assigned its interests to the assignee. The case was tried in a bench trial to the circuit court.

Overview

 

Two businesses signed a land purchase agreement for 595 acres of land. The agreement contained a provision which made the buyer’s obligation to purchase the land contingent on certain conditions, including the condition that the property would be rezoned to permit development of at least 550 lots. The seller also represented that it knew of no graveyards or graves on the property. After the agreement was signed, the buyer assigned its interests to a third party, and the assignee provided letters of credit totaling $ 250,000 to an escrow agent. After the assignment, the assignee sent a letter to the seller which indicated that it waived rezoning. When graves were discovered on the property, however, the assignee asked that they be moved. The seller disagreed and decided to leave the graves untouched in a common area. The assignee subsequently informed the seller that it was exercising its right to withdraw from the agreement because the conditions for transfer of title had not been met and it demanded return of its downpayment. The court held that the assignee had waived the conditions precedent to performance and had breached the agreement by refusing to purchase the property.

 

Outcome

 

The court dismissed the assignee’s complaint with prejudice, granted the seller’s counterclaim and third-party complaint, and held that the seller was entitled to a forfeiture of the assignee’s deposit by drawing upon its letters of credit as liquidated damages.

 

 
 
 
 

In re Oxbridge Dev. at Cedar Crest v. Pulte Home Corp., 2002 Va. Cir. LEXIS 130, *1 (Va. Cir. Ct. June 17, 2002) 

Bradin v. Bradin, 2004 Va. Cir. LEXIS 120, 2004 WL 2348388 (Va. Cir. Ct. May 20, 2004)

Case Summary
Procedural Posture
Plaintiff mother filed suit in the trial court (Virginia) seeking a divorce, custody, visitation, and child support from defendant father. A decree of divorce was entered granting the father a divorce. The other issues were taken under advisement.

 

 

Overview
The father argued that the mother prevented him from taking advantage of all of the visitation provided for in a pendente lite visitation order. The trial court granted the parties joint legal custody. The mother was awarded primary physical custody. The father’s visitation rights were specified. Neither party was an unfit parent, but they had communication problems with each other. There was no evidence that the child was suffering or being harmed by being primarily with his mother. The father failed to show that all of the times that he did not exercise his pendente lite visitation rights the mother prevented him from doing so. The mother had a legitimate concern that the father had exercised his visitation rights, in part, by taking the child to work. This led to an altercation with the maternal grandmother and aunt and involved the police, but the criminal charges had been dismissed. The fact that the mother left the child in the care of her mother when he was sick instead of contacting the father was not unreasonable in light of the litigation. The father’s child support obligation was set at the presumptive amount provided for by the Virginia Child Support Guidelines.

 

 

Outcome
The parties were awarded joint legal custody of the child. The mother was awarded primary physical custody. The father’s visitation rights were specified. The father’s child support obligation was increased.

 

 

Bradin v. Bradin, 2004 Va. Cir. LEXIS 120, *1 (Va. Cir. Ct. May 20, 2004)

McNicholas v. McNicholas, 2004 Va. Cir. LEXIS 117 (Va. Cir. Ct. June 14, 2004)

Case Summary
Procedural Posture
Before the court for determination was a divorce between plaintiff husband and defendant wife. Issues for determination included grounds for the divorce, equitable distribution, support, and attorney fees. The husband had filed for the divorce on the ground of adultery.

Overview
It was undisputed that the wife committed adultery. The court was unable to grant a divorce to the husband based on adultery, despite the husband having presented sufficient evidence to support his allegation. The court held the husband’s continued allowance of his wife to live at the marital home and care for their children, despite his knowledge of her adultery, the children’s exposure to the wife’s lover, and the fact that the wife may have left the children unattended to be with her lover, compelled the court to grant a divorce to the husband on the ground of having lived separate and apart without cohabitation and without interruption for one year under Va. Code § 20-91(9). The court was unable to equitably divide most of the parties’ personal property because neither party offered any evidence of the value of such personal property. The court awarded the wife permanent alimony upon discerning that a manifest injustice would have occurred if it denied such permanent spousal support, as the husband had a vastly superior economic condition.

Outcome
The court awarded the husband a divorce, made an equitable distribution of the parties’ personal property, and awarded the wife permanent alimony and $ 10,000 toward attorney fees.

 

McNicholas v. McNicholas, 2004 Va. Cir. LEXIS 117, *1 (Va. Cir. Ct. June 14, 2004)

Commonwealth v. Van Luu, 79 Va. Cir. 43, 2009 Va. Cir. LEXIS 69 (Va. Cir. Ct. 2009)

Case Summary 
Procedural Posture
At a status hearing, after the court denied the Commonwealth’s motion to reconsider the calendar control judge’s denial of a continuance, the Commonwealth moved to nolle prosequi the case pursuant to Va. Code Ann. § 19.2-265.3 (2008). Defendant objected and moved the court to dismiss the case.

Overview 
The Commonwealth failed to subpoena a doctor for trial. Defendant argued that the Commonwealth had not provided a good cause basis for its motion for nolle prosequi, but rather had only explained to the court that it did not adequately prepare for trial. First, the court made findings as to the circumstances leading to the motion for a continuance and the motion for nolle prosequi. Significantly, there was nothing in the record to suggest or imply that the Commonwealth acted in bad faith or engaged in prosecutorial misconduct. The case was clearly distinguishable from Battle v. Commonwealth because there was no evidence of vindictive intent. There was a lack of adequate preparation but, as soon as the Commonwealth recognized that a necessary witness would be unavailable, it brought the matter before the court. Exercising its discretion to grant the Commonwealth’s motion, the court ruled that the conduct in question amounted to a mere oversight, or a lack of adequate foresight and preparation. It did not constitute bad faith or prosecutorial misconduct.

Outcome
The court granted the Commonwealth’s motion to nolle prosequi the case. The court denied defendant’s motion to dismiss.

 

 

Commonwealth v. Van Luu, 79 Va. Cir. 43, 43 (Va. Cir. Ct. 2009)

Shehadeh v. Fountains at McLean Condo. Unit Owners Ass'n, 79 Va. Cir. 103, 2009 Va. Cir. LEXIS 53 (Va. Cir. Ct. 2009)

Case Summary
Procedural Posture
Plaintiff purchasers filed an action against defendant assignees, seeking quiet title to two parking spaces that were conveyed pursuant to a condominium purchase agreement.

Overview
An owner’s deed conveyed to him a condominium unit and the parking spaces appurtenant thereto. The owner conveyed the unit to a trustee. The deed of trust stated that all appurtenances that were a part of the property were conveyed in addition to the unit. The owner transferred to the assignees the right to use the parking spaces. The deed of trust was foreclosed. The purchasers bought the foreclosed property and discovered that the assignees claimed a superior interest in the parking spaces. The circuit court held that the purchasers had the exclusive right to the use of parking spaces. The right to use the limited common elements was legitimately transferred to the trustee by the deed of trust. That conveyance did not require the condominium association’s approval. When the deed of trust was recorded the public had constructive notice of its existence and its provisions, including the right to foreclose upon default. The trustee had the superior claim to use of the parking spaces. As of the date of foreclosure, the assignees were divested of their interest in the parking spaces, and the right to use the spaces was sold to the purchasers.

Outcome
The circuit court granted the purchasers’ action to quiet title and ordered the assignees to cease any and all use of the parking spaces.

 

Shehadeh v. Fountains at McLean Condo. Unit Owners Ass’n, 79 Va. Cir. 103, 103 (Va. Cir. Ct. June 24, 2009)

Cranley v. Benchmark Mgmt. Co., 78 Va. Cir. 353, 2009 Va. Cir. LEXIS 175 (Va. Cir. Ct. 2009)

Case Summary
Procedural Posture
In an action by plaintiff club members following termination of their membership from a golf club, the members filed two motions to compel, seeking the production of certain documents, which defendant management company claimed were protected from production by the attorney-client privilege and the work product doctrine pursuant to Va. Sup. Ct. R. 4:1.

 

 

Overview
The court conducted an in camera review of the documents in question and determined that the documents were not discoverable. The motions to compel did not contain either a substantial need or an undue hardship argument as required under Rule 4:1(b)(3),. Therefore, the members’ counsel did not pursue such an argument, but merely claimed that the documents were not prepared in anticipation of litigation. The management company did not argue that the documents were not otherwise discoverable, but relied solely on the work product doctrine. While some Virginia courts applied a bright-line rule in work product cases, the court applied a case by case test because work could have been done in anticipation of litigation before an attorney became involved in the case. All the requested documents concerned what management considered a very serious matter or a severe incident that could have led to suspension or revocation of club memberships. Considering the nature of the incident involving the instant members, it was reasonably foreseeable right after the incident that litigation might have arisen. Therefore, the documents were protected.

 

 

Outcome
The court denied the two motions to compel.

 

 

Cranley v. Benchmark Mgmt. Co., 78 Va. Cir. 353, 353 (Va. Cir. Ct. May 28, 2009)

Virginia Court of Appeals Cases:

Kinsley v. Kinsley, 1995 Va. App. LEXIS 765, *1 (Va. Ct. App. Oct. 17, 1995)

Case Summary
Procedural Posture
Appellant wife challenged a decision of the Circuit Court of Arlington County (Virginia), which awarded damages in favor of appellee husband in a civil contempt hearing.

 

 

Overview
On appeal, the court affirmed in part, reversed in part, and remanded the case for further proceedings. The court held that the trial court’s refusal to continue the civil contempt hearings in order for the wife to obtain counsel was proper. The court noted that when a party had the opportunity to present testimony but chose not to do so, there was no denial of due process. The court further held that the trial court did not abuse its discretion by refusing to continue the case. The court also held that the trial court did not err when it decided that the doctrine of res judicata did not bar the husband from seeking indemnity from the wife. The court found that the trial court erred in fixing and awarding excessive damages. The court noted that the trial court’s decision that ordered the wife to pay the husband’s attorney’s fees was improper because the parties’ agreement stated that both parties were responsible for their own attorney’s fees. The court further reversed the judgment permitting the seizure and attachment of the wife’s property.

 

 

Outcome
The court affirmed the judgment in favor of the husband, in part. The court reversed the portion of the decision that authorized the seizure and attachment of the wife’s property. The court then remanded the case for a new hearing on the issue of damages.

 

 

Kinsley v. Kinsley, 1995 Va. App. LEXIS 765, *1 (Va. Ct. App. Oct. 17, 1995)

Leake v. Taylor, 2010 Va. App. LEXIS 126, 2010 WL 1189344 (Va. Ct. App. Mar. 30, 2010)

Case Summary
Procedural Posture
Appellant husband sought review of the decision of the Circuit Court of Loudoun County (Virginia), which found in favor of appellee wife in the parties’ final decree of divorce.

 

 

Overview
The husband appealed from a final decree of divorce and contended that the circuit court committed a number of reversible errors; the appellate court disagreed and affirmed. Because the dismissal of the March 2008 appeal was not a decision as to the respective rights and liabilities of the parties, nor was it based on the ultimate fact or state of facts disclosed by the pleadings or evidence, the dismissal of the March 2008 notice of appeal was not a judgment on the merits of the case and the doctrine of res judicata was not applicable to the circuit court’s subsequent decision to hear the appeal of the spousal support award. Additionally, given the husband’s failure to produce credible evidence of his support need, the length of the parties’ marriage, the husband’s purposeful unemployment post-separation, and the parties’ monetary and nonmonetary contributions during the marriage, the appellate court was unable to say from the record before it that the circuit court’s determination of the amount of spousal support or its decision to provide spousal support of a defined duration was plainly wrong or without evidence to support it.

 

 

Outcome
The judgment was affirmed.

Leake v. Taylor, 2010 Va. App. LEXIS 126, *1 (Va. Ct. App. Mar. 30, 2010)

Webber v. Commonwealth, 2013 Va. App. LEXIS 171, 2013 WL 2436593 (Va. Ct. App. June 4, 2013)

Case Summary
Procedural Posture

 

 

A jury found defendant guilty of one count of aggravated sexual battery. The Circuit Court of Loudoun County (Virginia) sentenced defendant to one year in prison. Defendant appealed.

 

 

Overview

 

Defendant argued that the trial court erred in denying a number of challenges for cause to members of the venire, and by failing to sua sponte dismiss several members of the venire for cause. The appellate court held that the trial court erred in denying two of defendant’s challenges for cause. The first juror first indicated that she had been exposed to children who alleged they had been abused and then later indicated she had witnessed her sister being molested by her stepfather. While the first juror indicated that she could put that aside, it was in response to a leading question and the trial court precluded further questioning by defense counsel, a right afforded under Va. Code Ann. § 8.01-358. As to the second juror, the appellate court noted her admission that she, as a teacher, might have greater suspicion against defendant because he was an older male and the victim was a younger female. The second juror also indicated that she had a daughter. While the second juror later indicated she thought she could put that aide, it was also in response to a leading question, leaving the appellate court with doubt as to whether she was able to sit impartially.

 

Outcome 
Defendant’s conviction was reversed and the case was remanded for addition proceedings if the Commonwealth was so advised.

 

 

Webber v. Commonwealth, 2013 Va. App. LEXIS 171, *1 (Va. Ct. App. June 4, 2013)

Bryant v. Commonwealth, 2013 Va. App. LEXIS 214, 2013 WL 3833275 (Va. Ct. App. July 23, 2013)

Case Summary
Procedural Posture
After the Circuit Court of Loudoun County, Virginia, found defendant competent to stand trial, he pled guilty to aggravated sexual battery (Va. Code Ann. § 18.2-67.3). After he was sentenced, he filed a Va. Code Ann. § 19.2-296 motion to withdraw his plea, which was denied. He appealed.

 

 

Overview
Plaintiff claimed the trial court erred in finding him competent to stand trial and accepting his plea. The appellate court held that his failure to object to the trial court’s finding of competency and its acceptance of his plea before sentencing waived these objections. He claimed his motion to dismiss for want of jurisdiction should have been granted as the Commonwealth did not prove where the crimes took place or the ages of the victim and defendant. The appellate court disagreed because 1) under Va. Code Ann. § 17.1-513, he waived his right to contest venue by not doing so before pleading guilty; 2) as he pled guilty, he conceded that the trial court had jurisdiction and relieved the Commonwealth of any need to prove the elements of the crime. His motion to withdraw his guilty plea was properly denied as it was filed after sentencing and there was no evidence of a “manifest injustice” under § 19.2-296. The trial court did not err in prohibiting defendant, as condition of probation, from residing in a set geographical area around the victim’s house, which included the home of defendant’s parents; as the condition was aimed at protecting the victim, it was not unreasonable.

 

 

Outcome
The judgment was affirmed.

 

 

Bryant v. Commonwealth, 2013 Va. App. LEXIS 214, *1 (Va. Ct. App. July 23, 2013)

Moreno v. Commonwealth, 65 Va. App. 121 (decided August 11, 2015)

Case Summary

Overview
ISSUE: Whether defendant was properly convicted of uttering a forged public record in violation of Va. Code Ann. § 18.2-168. HOLDINGS: [1]-The circuit court did not err when it found that an accord and satisfaction letter presented by defendant to the general district court in an earlier matter, to have an assault and battery charge against defendant dismissed, fell within the statutory definition of a public record, under Va. Code Ann. § 42.1-77; [2]-Given that the jury decided that the document was forged and that defendant knew it to be a forgery, defendant was properly convicted of uttering a forged public record in violation of Va. Code Ann. § 18.2-168.

Outcome
Judgment affirmed.

 
 
Moreno v. Commonwealth, 65 Va. App. 121, 123 (Va. Ct. App. Aug. 11, 2015)

Wolfe v. Commonwealth, 67 Va. App. 97 (decided December 13, 2016)

Case Summary

Overview
HOLDINGS: [1]-The trial court did not err in denying defendant’s motion to suppress the blood test results, as the deputy had probable cause to arrest defendant for a violation of Va. Code Ann.§ 18.2-266, the deputy attempted to administer a breath test to defendant, and the deputy transported defendant to the hospital for the blood test after defendant was unable to stop burping an in order to take the breath test; [2]-Evidence of defendant’s inability to perform the breath test was appropriately before the jury to explain why a blood test was performed under Va. Code Ann. § 18.2-268.2(B).

 

 

Outcome
Judgment affirmed.

 

 

Wolfe v. Commonwealth, 67 Va. App. 97, 100 (Va. Ct. App. Dec. 13, 2016)

Virginia Supreme Court Cases:

 

Shilling v. Jimenez, 268 Va. 202, 597 S.E.2d 206, 2004 Va. LEXIS 98 (Va. 2004)

Case Summary
Procedural Posture
Appellant neighbors challenged the judgment of the Circuit Court of Loudoun County (Virginia), which sustained the demurrers of appellees, three subdividers, a grantor, a bank, and a trustee (the subdividers). The trial court also dismissed the bill of complaint with prejudice. The neighbors had brought a declaratory action against the subdividers asserting the wrongful approval of a subdivision and subsequent injury to their real property.

 

 

Overview
The neighbors asserted that affidavits made by the subdividers with regard to obtaining permission for the subdivision were false and that the “wrongful approval” of the subdivision had injured their property interests by permitting the construction of three houses where only one would have been otherwise permitted, by tripling traffic, water, and sewer demands, and by diminishing the privacy and seclusion of their properties. The trial court, in sustaining the demurrers, held that Loudoun County, Va., Land Subd. & Dev. Ordinance § 1242.04(1)(a) did not create a separate new cause of action and merely stated how to enforce a law regarding subdivisions, if one existed. The trial court also held that there was no law that permitted private landowners to file suit to attack an ordinance that approved a family subdivision. The court agreed and held that the trial court correctly sustained the demurrers, because the neighbors had no right of action. The court found that the clear legislative intent of § 1242.04(1)(a) and Va. Code Ann. § 15.2-2255 was to vest in a local governing body, and its authorized agents, the sole power to enforce its subdivision ordinances.

Outcome
The court affirmed the judgment.

 

 

Shilling v. Jimenez, 268 Va. 202, 204 (Va. June 10, 2004)

Vasquez v. Mabini, 269 Va. 155, 606 S.E.2d 809, 2005 Va. LEXIS 10 (Va. 2005)

Case Summary
Procedural Posture
Appellee, the husband, joint heir, and administrator of the estate of his wife, sued appellants, who included the driver of a bus and others, for wrongful death. The Circuit Court of Fairfax County, Virginia, after a jury trial which included expert testimony on the issue of damages, found appellants liable and found damages of $ 1,999,872. Appellants requested review.

Overview
The wife was killed when her car was struck from behind by a bus driven by the employee, whose employer operated the bus under a contract with a county. The highest court decided that the qualified expert’s damage opinion was based upon facts that were not supported by the evidence and should not have been admitted under Va. Code Ann. § 8.01-401.1 and Va. Sup. Ct. R. 5:25. The opinion estimated the wife’s lost income and benefits, lost household service value to the family, and reasonable family expenses totaling $ 477,223 at her age 60 and $ 558,835 at her age 65. However, there were insufficient facts to support that the wife could earn eight dollars per hour as a clerical worker, that her employer would contribute 3.7 percent for her retirement, and that her son would live for 24 years (since he died after she died), and her husband’s life expectancy. Since the husband did not disclose the extent of the expert’s testimony under Va. Sup. Ct. R. 4:1(b)4(A)(1), appellants could not be considered to have waived their objection to his testimony before trial and did not waive it at trial. The trial court should not have let the jury decide if the facts supported the expert’s opinion.

Outcome
The highest court affirmed that part of the judgment that found appellants liable, but reversed that part of the judgment related to damages and remanded the case to the trial court for a new trial limited to the issue of damages.

 

 

Vasquez v. Mabini, 269 Va. 155, 158 (Va. Jan. 14, 2005)

Smith v. McLaughlin, 2014 Va. LEXIS 127 (Va. Sept. 9, 2014)

Opinion

Assignments of Error

 

 

  1. The circuit court erred in giving opinions of the Supreme Court of Virginia to the jury for review during deliberation; this violated Va. Code § 8.01-381 and Virginia law as the cases were not exhibits, were inadmissible, and their content was confusing and unduly emphasized.
  2. The circuit court erred in allowing Plaintiff to ask for millions more in damages than his ad damnumduring both opening statement and closing argument; permitting the excessive request was also error where the massive sum requested was not grounded in the pleadings or evidence and violated Va. Code § 8.01-379.1.
  3. The circuit court erred in permitting plaintiff to recover more in this action than he could have collected from the Criminal Defense Attorneys in the absence of Shevlin Smith’s alleged malpractice.
  4. The court erred in ruling that Virginia does not recognize “collectability” as an element of legal malpractice cases.
  5. The court erred in refusing [*2]  to order a new trial or remittitur because Plaintiff did not carry his evidentiary burden of showing he could have collected the $5.75 million verdict amount from the Criminal Defense Attorneys but for the alleged malpractice of Shevlin Smith.
  6. The circuit court erred in failing to provide jury instructions that explained “collectability” and/or that proximate cause for damages in this trial required a showing that McLaughlin could have prevailed against and recovered damages from the Criminal Defense Attorneys but for Shevlin Smith’s alleged malpractice.
  7. The court erred in giving Instruction 8-2A which is unclear and fails to prevent Plaintiff from recovering more in this action than he could have collected from the Criminal Defense Attorneys in the absence of Shevlin Smith’s alleged malpractice.
  8. The court further erred in refusing Instructions C-1, C-2 and C-3.
  9. The circuit court erred in admitting (and refusing to strike) testimony of damages that was greatly in excess of damage figures disclosed pre-trial, where plaintiff’s damages expert increased his opinion with a spur of the moment calculation performed on the witness stand.
  10. The court erred where the expert’s testimony [*3]  was previously undisclosed and constituted an unfair surprise that prejudiced Shevlin Smith.
  11. The court erred because the expert’s testimony included wages that the trial court had ruled Plaintiff could not recover.
  12. The circuit court erred in denying Defendant’s motion for remittitur where the verdict was far in excess of any evidence of lost income put forward at trial; the damages verdict was the product of inappropriate jury speculation, passion and prejudice; and the verdict permitted the plaintiff to inappropriately recover attorney based wages and to recover more than he could have received in the absence of the malpractice.
  13. The circuit court erred in denying Defendant’s post-trial motion for a new trial where Plaintiff asked for damages in excess of the ad damnum, where the verdict bore no relation to the evidence and was the product of inappropriate speculation, passion and prejudice (as well as improper expert testimony), where Plaintiff failed to show collectability and where the jury was inappropriately given legal cases for deliberations.
  14. The circuit court erred in denying Defendant’s second plea in bar, and by rejecting Shevlin Smith’s position that an attorney [*4]  does not commit malpractice, as a matter of law, by failing to anticipate a change or shift in the law or by exercising judgment on an unsettled point.

Assignments of Cross-Error 

 

 

  1. The trial court abused its discretion in denying McLaughlin’s request to increase the ad damnumbecause his motion was timely filed.
  2. The court abused its discretion in denying the request to increase the ad damnumwhen it considered Shevlin’s liability coverage.
  3. The trial court erred as a matter of law when it determined that non-economic damages were unavailable to McLaughlin.
  4. The trial court erred as a matter of law in ruling that pain and suffering is not available in a contract action.
  5. The trial court abused its discretion in not considering whether wrongful incarceration damages were available prior to making its determination on the motion to increase the ad damnumclause.
  6. The trial court erred as a matter of law in ruling that wrongful incarceration damages are not available in a legal malpractice action.
  7. The court erred in excluding from the damage calculation the time McLaughlin was incarcerated for an escape attempt.

Date Granted

09-09-2014

 

 

Smith v. McLaughlin, 2014 Va. LEXIS 127, *1-4 (Va. Sept. 9, 2014)

United States District Court for the Eastern District of Virginia: 

 

Mial v. Sherin, et al., 12012 U.S. Dist. LEXIS 95545

MEMORANDUM OPINION

 

 

THIS MATTER is before the Court on Defendants Jennifer Sherin, Nathan Ferguson, Nicholas Altom, and Brian Sayre’s Motion for Summary Judgment. Plaintiff Marcus Mial brought this civil action under 42 U.S.C. § 1983 against four police officers for alleged forcible and warrantless entry into his home and use of excessive force. In their Motion for Summary Judgment, Defendants assert the defense of qualified immunity from suit, arguing that the warrantless entry and the use of force against Plaintiff were justified by Plaintiff’s conduct and the circumstances.

There are two issues before the Court. The first issue is whether Defendants are entitled to immunity from suit based on a warrantless entry into Plaintiff’s home after Plaintiff placed a 9-1-1 call for emergency assistance but then withdrew his request for assistance and refused to admit into his home police  [*2] officers responding to the call. The second issue is whether Defendants are entitled to immunity from suit based on the use of force against Plaintiff, which included the use of a Taser, where there remain factual disputes regarding the physical contact between the parties inside Plaintiff’s home prior to the use of the Taser.

The Court holds that Defendants are not entitled to qualified immunity in this case because genuine issues of material fact remain regarding whether Defendants violated Plaintiff’s clearly established Fourth Amendment rights against unreasonable search and seizure by their warrantless entry into Plaintiff’s home. With respect to Plaintiff’s unlawful entry claims, factual disputes remain regarding whether, at the time of Defendants’ warrantless forcible entry into Plaintiff’s home, a reasonable officer in Defendants’ positions would have believed that such entry was immediately necessary to render assistance or prevent harm. With respect to Plaintiff’s excessive force claim, factual disputes remain regarding whether Plaintiff posed an immediate threat to Defendants’ safety or actively resisted arrest when Plaintiff was pushed and a Taser was used on him by Defendants.  [*3] For these reasons, the Court denies Defendants’ Motion for Summary Judgment.

  1. FACTUAL BACKGROUND

On February 14, 2010, Mr. Marcus Mial called 9-1-1 to request assistance from the Loudoun County Sheriff’s Office because his wife had grabbed a knife and threatened to harm herself with it. Mial Dep., at 48-49. Mr. Mial told the dispatcher that he needed assistance “in taking a knife from an individual” but, after providing his address, stated, “Never mind. They just gave it up.” Pl.’s Ex. 3, at 1-2. The Sheriff’s Office called back a few minutes later to confirm that assistance was no longer needed, and Mr. Mial confirmed that the person no longer had the knife and had not harmed anyone. Pl.’s Ex. 3, at 2.

Deputy Jennifer Sherin of the Loudoun County Sheriff’s Office arrived at the Mial home shortly after the 9-1-1 call was placed. Mial Dep., at 34-35. Deputy Sherin learned from the dispatcher at the Sheriff’s Office that the 9-1-1 caller cancelled his request for assistance and “confirmed that… the situation [was] under control.” Sherin Dep., at 181-82. Mr. Mial answered when Deputy Sherin arrived and knocked at the door, opening the door fully with his two children behind him. Sherin  [*4] Dep., at 185,194; Mial Dep., at 35-36. Mr. Mial told Deputy Sherin that he was the 9-1-1 caller but cancelled the request for assistance, and that he owned the house and lived in it with his wife and children. Sherin Dep., at 187-88; Mial Dep., at 35-36. Deputy Sherin asked to “[c]ome in and make sure [that] everyone was safe” twice and made another request to enter the home after being joined at the door by another Loudoun County deputy, Nathan Ferguson. Sherin Dep., at 189; Mial Dep., at 36-37. Mr. Mial refused Deputy Sherin’s requests, stating that assistance was not needed and that the situation was under control. Mial Dep., at 36-37.

The parties dispute Mr. Mial’s demeanor during his exchange with Deputy Sherin. Mr. Mial stated in his deposition that he maintained a “normal” tone of voice and was not angry during his conversation with Deputy Sherin. Mial Dep., at 42. Deputy Sherin testified that Mr. Mial “became extremely irate,” and Deputy Ferguson testified that Mr. Mial “appeared to be very upset” when Deputy Sherin asked to check on the welfare of the people inside the house. Sherin Dep., at 189; Ferguson Dep., at 52.

Mr. Mial stated that he was surprised by how quickly the  [*5] deputies had arrived and began to complain to the deputies about the Sheriff’s Office’s response to previous calls for assistance. Mial Dep., at 38-40; Sherin Dep., at 189-90. After Deputy Sherin made a comment warning Mr. Mial about ice on his porch, which Mr. Mial took as a slight or reprimand, Mr. Mial slammed his front door. Mial Dep., at 40-41; Sherin Dep., at 192.

Deputies Ferguson and Sherin walked down the driveway, and Deputy Ferguson called their supervisor, Sergeant Kim Holway. Sherin Dep., at 198-199; Ferguson Dep., at 61. Deputy Ferguson briefly told Sergeant Holway what had transpired, including the facts that Mr. Mial would not let the officers inside, that Mr. Mial was angry, and that the children did not appear to be distressed. Sherin Dep., at 201; Ferguson Dep., at 61; Holway Dep. at 77. Sergeant Holway testified that the deputies called her “because they didn’t know whether they could just leave or not[,]” and that she thought the deputies wanted to leave. Holway Dep., at 78. Sergeant Holway told Deputy Ferguson that the deputies should stay there and that she was en route. Sherin Dep., at 201; Holway Dep., at 78. Sergeant Holway also told Deputy Ferguson that the  [*6] deputies would need to check the welfare of the other persons involved and that, if Mr. Mial was to open the door, the deputies should not allow the door to be shut again. Ferguson Dep., at 61-62; Holway Dep., at 78.

Deputies Ferguson and Sherin returned to the front door and rang the doorbell. Mial Dep., at 75; Sherin Dep., 204-05. Mr. Mial was in the kitchen cooking for his children when he heard the doorbell, and walked out to see who was at the door. Mial Dep., at 75-76. He could see through the window next to the front door that Deputies Sherin and Ferguson had returned. Id. After observing deputies at the door, Mr. Mial returned to the kitchen to continue cooking. Id. The deputies could see that Mr. Mial was moving through the house but would not answer the door. Sherin Dep., at 204-05. After she arrived, Sergeant Holway joined the deputies at the front door, and the deputies told her that no one was answering the door. Sherin Dep., at 205; Ferguson Dep., at 62; Holway Dep., at 84-85. The facts that someone called 9-1-1 reporting that a knife needed to be taken away from someone else and that Mr. Mial was “immediately irate” at the door, according to Deputies Sherin and Ferguson,  [*7] made Sergeant Holway suspicious and concerned that someone might be injured inside the house. Holway Dep., at 95-96. Sergeant Holway was aware, however, that Mr. Mial was the person who placed the 9-1-1 call and then cancelled his request for assistance. Holway Dep., at 96.

As the deputies continued knocking loudly and persistently, Mr. Mial decided to call his friend and mentor Mr. Golden “Bud” Kirkland for advice. Mial Dep., at 77-78. Mr. Mial left the kitchen and went to his office, picked up the phone, and called Mr. Kirkland. Id. The deputies at the door observed Mr. Mial leaving the kitchen, going into his office and speaking on the phone in his office. Mial Dep., at 82; Ferguson Dep., at 65; Sherin Dep., at 205-206; Holway Dep., at 89-90. Sergeant Holway called the dispatcher to retrieve the phone number to the Mial residence and then called that number. Ferguson Dep., at 62; Holway Dep., at 89-90. She left a voice message indicating that the police needed to do a welfare check and asking Mr. Mial to answer the door. Holway Dep., at 89-90.

Deputy Brian Sayre arrived to offer assistance after monitoring the radio traffic about events at the Mial residence, and Deputy Nicholas Altom  [*8] arrived after Deputy Sayre. Sayre Dep., at 32; Holway Dep., at 92-93. Sergeant Holway briefed Deputies Sayre and Altom on the facts that Mr. Mial had placed a 9-1-1 call for assistance in taking a knife from someone but then cancelled his request, confirmed that he did not need assistance when the dispatcher called him back, answered the door for Deputies Sherin and Ferguson, “was extremely irate” in complaining about the police presence, shut the door on the deputies, and refused to answer the door again. Sayre Dep., at 34-35; Holway Dep., at 93. Sergeant Holway had Deputy Sayre check the perimeter of the house to look for signs of forced entry and asked Deputy Altom to try to contact neighbors to seek information about the Mial residence and the people living there. Altom Dep., at 32; Holway Dep., at 94.

Mr. Mial was on the phone with Mr. Kirkland for approximately 10 minutes while Deputies Sherin and Ferguson continued knocking at the front door. Mial Dep., at 79-81; Ferguson Dep., at 65; Sherin Dep., at 206. Mr. Kirkland advised Mr. Mial to let the deputies inside to conduct their welfare check, and Mr. Mial agreed to open the door. Kirkland Dep., at 18. Mr. Kirkland also asked  [*9] Mr. Mial to leave the phone open so that Mr. Kirkland could hear what was going to happen in the home, and Mr. Mial set the phone down without hanging up. Kirkland Dep., at 18.

Deputy Ferguson notified the other deputies over the radio that someone was coming to the door. Sayre Dep., at 42; Altom Dep., at 33. Mr. Mial opened the door and placed his right foot behind the door to serve as a “doorstop.” Mial Dep., at 87. Mr. Mial made a comment about the show of force and started to comment about his disappointment with the Sheriff’s Office when the deputies pushed open the door, pushing back his right foot. Mial Dep., at 85-87. It appeared to the deputies that Mr. Mial had begun to shut the door before they pushed the door open and pushed him back. Sherin Dep. at 216; Ferguson Dep., at 77; Altom Dep., at 36. The deputies had not asked to come inside or that Mr. Mial bring the occupants of the house to the door. Sherin Dep., at 215; Ferguson Dep., at 75. Deputy Ferguson testified that he had told Mr. Mial that Sergeant Holway wanted to speak with him and that Mr. Mial declined to speak with her. Ferguson Dep., at 75. Deputy Ferguson also testified that he attempted to tell Mr. Mial that  [*10] the deputies could not leave without ensuring that everyone in the house was okay but Mr. Mial continued complaining. Id. Deputy Sherin testified that the deputies did not say anything in response to Mr. Mial’s complaints. Sherin Dep., at 215.

Many of the facts about what occurred after Deputies Sherin and Ferguson forced entry are disputed between the parties. According to Mr. Mial’s testimony, Deputy Ferguson pushed Mr. Mial from the door backward, specifically on his upper torso, and Deputy Sherin yelled, “Grab his arms, grab his legs.” Mial Dep., 96-98. Mr. Mial yelled, “You are not authorized to come into my home,” twice, and saw at least one other deputy enter the home before one of the deputies used a Taser on him. Mial Dep., at 98-101.

The deputies testified to a physical struggle between them and Mr. Mial before the Taser was used on Mr. Mial. According to Deputies Sherin and Ferguson, Mr. Mial grabbed both of them, held them to his chest after they pushed their way inside the house, and attempted to push them out. Sherin Dep., at 226; Ferguson Dep., at 97-100. Deputy Altom testified that he ran into the house when he saw Deputies Sherin and Ferguson push their way in and engage  [*11] in a physical struggle with Mr. Mial. Altom Dep., at 36. According to Deputy Altom, Mr. Mial “was getting the better of [Deputies Sherin and Ferguson],” pushing them forward, and Deputy Altom responded by shoving back against Mr. Mial, in his chest, without much effect. Id., at 41-43. Deputy Sayre testified that he ran into the house after Deputy Altom where he found Mr. Mial and the three deputies engaged in a physical struggle. Sayre Dep., at 50-52. Deputy Sayre testified that, when he saw Mr. Mial’s children moving toward the struggle, he told them to stop or to stay where they were. Id., at 58. According to Deputy Sayre, Mr. Mial had an arm around Deputy Sherin’s neck and an arm around Deputy Ferguson’s neck and was swinging them around, while Deputy Altom pushed against Mr. Mial near his waist. Id. at 58-59. Deputy Sayre could see Deputy Sherin’s face and saw that she looked “concerned about her safety.” Id. at 58-60. Deputy Sayre had his Taser in hand, and Deputy Sherin told him to use it on Mr. Mial. Id. at 59-60. Without giving a warning, Deputy Sayre used the Taser on Mr. Mial, and Mr. Mial was physically incapacitated. Mial Dep., at 105-06.

Mr. Mial testified that the time  [*12] between the forcible entry and the use of the Taser was too fast for him to engage in any physical struggle with the officers. Mial Dep., at 104. Mr. Kirkland testified that he heard everything, including the forcible entry and Mr. Mial’s child shouting after Mr. Mial was tased, occur in a matter of seconds. Kirkland Dep., at 19.

  1. PROCEDURAL HISTORY

Mr. Mial filed the present action in this Court under 42 U.S.C. § 1983 on August 31, 2011, against Loudoun County Sheriff Stephen O. Simpson, the four deputies who entered his home on February 14, 2010, and several unnamed employees of the Sheriff’s Office. Mr. Mial filed an Amended Complaint on December 13, 2011, against only the four deputies Sherin, Ferguson, Altom, and Sayre. The Amended Complaint lists three counts and one alternative count: (1) Excessive Force against all Defendants, or alternatively Excessive Force against Deputies Sherin and Ferguson; (2) Unreasonable Violent Entry Into Home against Deputies Sherin and Ferguson; and (3) Unreasonable Entry Into Home Without Sufficient Cause against Deputies Sherin and Ferguson. On March 30, 2012, Defendants filed a Motion for Summary Judgment seeking qualified immunity from suit.  [*13] This matter has been fully briefed and argued by the parties.

III. STANDARD OF REVIEW 

Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56(c).

In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48.

A “material fact” is a fact that might affect the outcome of a party’s case. Id. at 248; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). Whether a fact is considered  [*14] to be “material” is determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).

A “genuine” issue concerning a “material” fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the non-moving party’s favor. Anderson, 477 U.S. at 248. Rule 56(e) requires the non-moving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

  1. ANALYSIS

The Court denies Defendants’ Motion for Summary Judgment and request for qualified immunity because genuine issues of material fact remain regarding whether Defendants are liable for violating Plaintiff’s constitutional rights in forcibly entering his home without a warrant and using force against him while seizing him inside the home.

A civil suit for damages may be brought under 42 U.S.C. § 1983 against  [*15] persons acting “under color of state law” who violate civil rights secured by the federal law. Gregg v. Ham, 678 F.3d 333, 339 (4th Cir. 2012). However, “[t]he doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1244, 182 L. Ed. 2d 47 (2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)) (internal quotation marks omitted).

“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.” Pearson, 555 U.S. at 231 (2009). Whether a public official “may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 819, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982))  [*16] (internal citations omitted). The qualified immunity doctrine protects government officials from ambiguity or haziness in the state of the law, and ensures that they are “on notice their conduct is unlawful” before they are subjected to suit. Saucier v. Katz, 533 U.S. 194, 206, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled in part by Pearson, 555 U.S. at 239-40.

The resolution of a qualified immunity defense is a two-pronged inquiry, requiring the court to determine: (1) whether the facts established by the plaintiff make out a violation of a federal right; and, once the violation is established, (2) “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 232. With respect to the second prong, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Creighton, 483 U.S. at 640 (1987) (internal citations omitted). When deciding whether a reasonable officer would have been aware of the federal right, the court does not require the official “to sort out conflicting decisions or to resolve subtle or open issues.” Campbell v. Galloway, 483 F.3d 258, 271 (4th Cir. 2007)  [*17] (quoting McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998)). The unlawfulness of the action must be apparent “in the light of pre-existing law” in order for a reasonable officer to have been aware that the action violated a federal right. Creighton, 483 U.S. at 640. However, the specific official action need not to have previously been held unlawful in order for the officer to be held liable for violating the right. Id.

“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.” Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005). The doctrine offers immunity “from the burdens of litigation,” not merely a defense to liability. Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992). This immunity “is effectively lost if a case is erroneously permitted to go to trial.'” Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 330 (4th Cir. 2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). The issue of “whether a right allegedly violated was clearly established … at the time of the challenged conduct is always a matter of law for the court [and therefore] always capable of decision at the summary judgment stage.” Pritchett, 973 F.2d at 313;  [*18] see also Saucier, 533 U.S. at 202 (“If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.”). However, the doctrine of qualified immunity “does not… override the ordinary rules applicable to summary judgment proceedings.” Willingham, 412 F.3d at 559. “[A] genuine question of material fact regarding ‘[w]hether the conduct allegedly violative of the right actually occurred … must be reserved for trial.'” Id. (quoting Pritchett, 973 F.2d at 313).

Based on the evidence in the record in the present case, the Court holds that Defendants are not entitled to qualified immunity and denies Defendants’ Motion for Summary Judgment for two reasons. First, the constitutional rights at issue are clearly established, and a reasonable officer would have been aware of these rights at the time the conduct challenged by Plaintiff occurred. With respect to the counts for unreasonable entry, the Fourth and Fourteenth Amendments forbade Defendants from forcibly entering Plaintiff’s home in the absence of exigent circumstances requiring immediate entry into the home to render assistance or prevent harm. With  [*19] respect to the count for excessive force, the Fourth and Fourteenth Amendments forbade Defendants using force against Plaintiff without any immediate threat to the safety of the officers or resistance from Plaintiff.

Second, there remain genuine questions of material fact regarding whether Defendants’ conduct violated Plaintiff’s Fourth Amendment rights to be secure in his person and in his house, which must be reserved for trial. See U.S. Const. amend. IV. Facts regarding Plaintiff’s demeanor during his interactions with Defendants at his front door, whether a struggle ensued between Plaintiff and Defendants, and the nature of any struggle that occurred are material to the question of whether Defendants violated clearly established Fourth Amendment law. Plaintiff has offered deposition testimony showing that genuine disputes remain as to these material facts, meeting his burden in opposition to Defendants’ Motion for Summary Judgment. Because the Fourth Amendment rights at issue in this case are clearly established and those rights would have been violated on the facts presented by Plaintiff, the Court holds that Defendants are not entitled to qualified immunity or otherwise entitled  [*20] to judgment as a matter of law on Plaintiff’s unlawful entry and excessive force claims. The Court will treat the Amended Complaint as stating only these two causes of action for clarity of analysis.

  1. Unlawful Entry

Defendants are not entitled to qualified immunity as to Plaintiff’s unlawful entry claims because Plaintiff has shown that genuine disputes remain regarding whether Defendants were presented with exigent circumstances justifying their forcible, warrantless entry into Plaintiff’s home.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

“At the very core” of this guarantee “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). Indeed, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). Thus, “[i]t is a basic principle of Fourth Amendment law  [*21] that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639(1980).

Hunsberger v. Wood, 570 F.3d 546, 552-53 (4th Cir. 2009). “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,'” its prohibition against warrantless entry and search “is subject to certain exceptions.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006).

A police officer may make forcible entry into a home without a warrant if such action is supported by probable cause and exigent circumstances. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 153 L. Ed. 2d 599 (2002) (citing Payton, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639); see also U.S. v. Hill, 649 F.3d 258, 265 (4th Cir. 2011) (requiring “substantial evidence of wrongdoing or imminent danger.”). “Probable cause exists where the facts and circumstances within an officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed and that evidence bearing on that offense will be found in the place to be searched.” Safford Unified Sch. Dist. No. I v. Redding, 557 U.S. 364, 129 S. Ct. 2633, 2639, 174 L. Ed. 2d 354 (2009) (internal  [*22] quotations and citations omitted).

In the absence of probable cause, a warrantless entry is justified by a compelling need to render assistance or prevent harm without time to secure a warrant. Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); see also Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir. 2002). This “emergency exception” to the warrant requirement calls for “an analysis of the circumstances to determine whether an emergency requiring immediate action existed.” Hunsberger, 570 F.3d at 554. Such “[e]xigent circumstances vary from case to case, and a determination of the issue is of necessity fact-specific.” Osabutey v. Welch, 857 F.2d 220, 224 (4th Cir. 1988). “The existence of exigent circumstances must be determined as of the moment of the warrantless entry of the officers onto the premises[.]” U.S. v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (citing Arkansas v. Sanders, 442 U.S. 753, 763, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)). The court must determine “whether the circumstances known to [the officer at the time of the warrantless entry] would create an ‘objectively reasonable belief that an emergency existed that required immediate entry to render assistance or prevent harm to persons or property within.'” Hunsberger, 570 F.3d at 555  [*23] (quoting U.S. v. Moss, 963 F.2d 673, 678 (4th Cir. 1992)). Generally, “an action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively,‘ support the action.” Hunsberger, 570 F.3d at 554 (quoting Stuart, 547 U.S. at 404) (emphasis in original).

In this case, Defendants are not entitled to qualified immunity or otherwise entitled to summary judgment with respect to Plaintiff’s unlawful entry claim for two reasons. First, Plaintiff’s constitutional right to be secure in his home against warrantless and forcible intrusion in the absence of exigent circumstances is clearly established. The Court has cited numerous cases from the U.S. Supreme Court and the Court of Appeals for the Fourth Circuit that stand for this basic principle of Fourth Amendment law and do not conflict on this point. As the Supreme Court stated in Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”

Second, Plaintiff’s Fourth Amendment right to security in his home would  [*24] have been violated on the facts he has presented in opposition to Defendants’ summary judgment motion. See Anderson, 477 U.S. at 255 (facts viewed in a light most favorable to the non-moving party in assessing motion for summary judgment). While warrantless entry into a home may be justified by an emergency or Defendants’ “objectively reasonable belief that an emergency existed that required immediate entry,” Moss, 963 F.2d at 678, the record before the Court does not establish the objective reasonableness of any belief Deputies Sherin and Ferguson might have had that such an emergency existed, or that they even had any such belief at all.

Indeed, the record reflects several facts that suggest that Defendants were not presented with any emergency that would require them to forcibly enter Plaintiff’s home to render assistance or prevent harm “as of the moment” of their entry. Reed, 935 F.2d at 643. The only undisputed fact in this case indicating an emergency at the Mial residence is Plaintiff’s original 9-1-1 call requesting assistance in taking a knife from another person. On the same call, however, Plaintiff stated that the person gave up the knife and emergency assistance was no  [*25] longer needed. The dispatcher at the Loudoun County Sheriff’s Office even called back to the Mial residence to confirm that the emergency had abated. Plaintiff confirmed that there was no emergency, stating that the person who had the knife no longer had the knife “or anything like that,” that the knife was not used on anyone, and that “[t]he situation [was] under control.” Pl.’s Ex. 3, at 1-2. Before they arrived at the residence, Deputies Sherin and Ferguson were told that the person who made the 9-1-1 call had stated that the person who had the knife had given it up and that the caller withdrew his request for assistance.

After they arrived at the home, Deputies Sherin and Ferguson did not observe anything suspicious or otherwise noteworthy about the house. Plaintiff answered the door promptly after Deputy Sherin arrived and knocked. Deputies Sherin and Ferguson could see Plaintiff’s children during their first encounter with Plaintiff, and they did not appear hurt, upset, or distressed. The deputies could see inside the home, but they saw no indication of any physical struggle. There was no broken or out-of-place furniture or other objects within view of the deputies. Moreover,  [*26] Deputies Sherin and Ferguson left their initial interaction with Plaintiff without forcing their way inside, which suggests that at least they did not perceive an emergency requiring forcible entry. Sergeant Holway testified that she thought Deputies Sherin and Ferguson wanted to leave when they reported their first encounter with Plaintiff to her via radio. Indeed, there were no signs of distress or injury such as yelling, crying, or any other indication that emergency assistance or intervention inside the house was necessary.

There are factual disputes between the parties as to Plaintiff’s demeanor during his interactions at the front door with Deputies Sherin and Ferguson. Defendants testified to Plaintiff presenting as “extremely irate,” Sherin Dep., at 189, while Plaintiff testified that he was not angry and spoke in a normal tone of voice, Mial Dep., at 42-44. The question of how Plaintiff presented himself to Defendants is material to the issue of whether a reasonable police officer in their position would have perceived an emergency at that time. It is undisputed that, during Deputies Sherin and Ferguson’s first encounter with him, Plaintiff refused to admit the deputies into  [*27] his home when they requested entry, as was his Fourth Amendment right. Plaintiff’s cancelled request for emergency assistance and refusal to voluntarily admit the deputies into his home, without more, are not enough to raise an objectively reasonable suspicion of exigent circumstances. Cf. Bailey v. Kennedy, 349 F.3d 731, 740 (4th Cir. 2003) (third-party 9-1-1 report that plaintiff was attempting suicide “[w]ithout more” could not support probable cause sufficient to justify warrantless entry). These facts in combination with an “extremely irate” display by Plaintiff may have supported a reasonable suspicion of exigent circumstances, but the fact of Plaintiff’s demeanor is disputed. The Court cannot resolve these disputes in Defendants’ favor on their summary judgment motion.

The Court cannot accept Defendants’ “just following orders” argument, as set forth on page 23 of their Memorandum, as either grounds for qualified immunity. First, with respect to the qualified immunity doctrine, the fact that Sergeant Holway instructed Deputies Sherin and Ferguson to force entry before Plaintiff could close the front door again cannot be heard to render unclear the state of Fourth Amendment  [*28] law and clearly established right to security in one’s home it protects. Deputies Sherin and Ferguson knew or should have known that a forcible entry without a warrant in the absence of probable cause or circumstances indicating an exigency that would justify such warrantless entry would violate Plaintiff’s Fourth Amendment rights regardless of whether they were ordered to make such an entry by a supervisor. Deputies Sherin and Ferguson were responsible for deciding for themselves whether forcible entry into Plaintiff’s home without a warrant was lawful and whether there was a legal reason to question the validity of Sergeant Holway’s order.

Second, with respect to the emergency doctrine, the fact that Sergeant Holway instructed Deputies Sherin and Ferguson to force entry before Plaintiff could close the front door again cannot be heard to create an emergency where, otherwise, there was no such emergency. Defendants argue on page 17 their Memorandum that, regardless of the circumstances presented to Deputies Sherin and Ferguson, forcible entry into Plaintiff’s home  [*30] was reasonable under the circumstances presented to Sergeant Holway, who, based on those circumstances, ordered Deputies Sherin and Ferguson to make forcible entry. Sergeant Holway has testified that the facts that someone called 9-1-1 reporting that a knife needed to be taken away from someone else, that Deputies Sherin and Ferguson had not been able to gain any more information about the incident from Plaintiff, and that Plaintiff was “immediately irate” at the door, according to the officers, made her suspicious that someone might be injured inside the house. Holway Dep. at 95-96. Defendants’ argument that the circumstances presented to Sergeant Holway were exigent strongly implies that Sergeant Holway had a substantially different understanding of the situation in the Mial home than Deputies Sherin and Ferguson, who were more directly involved and had first-hand encounters with Plaintiff. Thus, Defendants’ argument suggests that Sergeant Holway had an incomplete understanding of the situation in the home. The fact that Deputies Sherin and Ferguson knew better than Sergeant Holway gave them reason to question the validity of her order.

The Court is not persuaded to grant Defendants’  [*31] motion based on the cases cited in their Memorandum. In Hunsberger v. Wood, 570 F.3d 546 (4th Cir. 2009), the issue was “whether the circumstances known to [the defendant police officer] would create an ‘objectively reasonable belief that an emergency existed that required immediate entry to render assistance or prevent harm to persons or property within.'” 570 F.3d at 555 (quoting Moss, 963 F.2d at 678). The Fourth Circuit answered in the affirmative and held that the defendant did not violate the Fourth Amendment by entering the plaintiff’s home under “circumstances indicat[ing] the strong possibility of an unauthorized intruder in the home.” Hunsberger, 570 F.3d at 555. These circumstances included the following facts: “a vacant home in the neighborhood had recently burned down as the apparent result of unauthorized use”; “there was evidence that a minor girl was in the home, given that her car was parked in front of the house” but her “stepfather said that she was not supposed to be at the home and was exceedingly concerned for her welfare”; “the girl was not answering her cellphone”; and “it was the middle of the night.” Id.

The present case does not present the “numerous indications”  [*32] that justified a belief that an emergency existed as were present in Hunsberger. Id. It is true that Plaintiff failed to answer the knocks at his door and telephone calls as the police officers attempted to make contact with him after his initial encounter with Deputies Sherin and Ferguson. However, Plaintiff did make that initial contact and, in fact, answered the door quickly when Deputy Sherin first arrived. Plaintiff explained that there was no need for emergency assistance, and Defendants did not receive any information indicating that this fact had changed at some point prior to their forcible entry into his home.

In the recent Western District of Virginia case Pleasants v. Town of Louisa, 847 F. Supp. 2d 864, 2012 U.S. Dist. LEXIS 32969, 2012 WL 844355 (W.D. Va. Mar. 12, 2012), the issue of qualified immunity required a determination of whether, at the time of the defendant police officer’s warrantless entry into the plaintiff’s apartment, “it was clearly established that a police officer… may not enter without a warrant in order to ensure the safety of a hysterical minor whose mother was potentially intoxicated and allegedly violent.” 847 F. Supp. 2d 864, 2012 U.S. Dist. LEXIS 32969, 2012 WL 844355 at *7. Clearly, the facts in Pleasants are far more dramatic than those presented  [*33] in the present case. In Pleasants, the defendant had been exposed to a “contentious dispute” between the plaintiff and her husband “over the parenting of their daughter.” Id. On that previous occasion, the defendant learned that the plaintiff had plans to “throw [the] daughter out of the house[,]” was informed by a dispatcher that the plaintiff was violent and possibly intoxicated, and encountered “a decidedly tense situation” when he arrived at the home. Id. The defendant, on that previous occasion, observed the plaintiff slamming the door on her husband and the daughter crying and asking to leave with the husband. Id. Before the incident at issue in the case, the plaintiff’s husband asked the defendant to check on the welfare of his daughter and told the defendant that he heard his daughter screaming and crying in the background during a telephone conversation with the plaintiff and that the plaintiff was “upset and hostile.” 847 F. Supp. 2d 864, 2012 U.S. Dist. LEXIS 32969, [WL] at *8. The court found all of this information possessed by the defendant relevant in determining that the defendant reasonably made entry to the apartment without a warrant. 847 F. Supp. 2d 864, 2012 U.S. Dist. LEXIS 32969, [WL] at *11.

In the present case, no one requested the welfare check sought by the  [*34] deputies, and there was no indication that such a welfare check was necessary. None of the defendants in this case have testified to any prior knowledge of Plaintiff or his family that would suggest the sort of domestic strife that was present in Pleasants, or to having observed anything that would suggest that sort of domestic strife.

In Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009), the issue was whether the defendant officers’ conduct was objectively reasonable in seizing the plaintiff and pulling him out of his home where the defendants had received a report that the plaintiff threatened suicide through a 9-1-1 call from a doctor. 555 F.3d at 328. The defendants were informed that the plaintiff had made previous threats of suicide. Id. The defendants attempted to communicate with the plaintiff, but the plaintiff refused, telling the officers to get off his property. Id. When one of the officers contacted a local hospital, he learned that the plaintiff “had a history of calling the hospital and threatening suicide.” Id. When the plaintiff opened his front door and stuck his arm out, the defendants seized him, which required them to enter his house, and pulled him out. Id. at 329.  [*35] The Fourth Circuit held that the defendants’ conduct was objectively reasonable and that they were entitled to qualified immunity, regardless of factual disputes over whether the plaintiff was belligerent and threatened the defendants. Id. at 334.

Again, in the present case, Defendants possessed far less information that would suggest or support a reasonable suspicion of an exigency requiring forcible entry into Plaintiff’s home. Defendants received no information of an ongoing pattern of domestic violence at the Mial residence. Plaintiff himself was the person who placed the 9-1-1 call—not a third party concerned about Plaintiff’s welfare or the welfare of anyone else in the home. Deputies Sherin and Ferguson knew that Plaintiff was the caller and that he cancelled his request for assistance, stating that emergency assistance was no longer needed.

In at least one crucial way, the present case is more like Bailey v. Kennedy, 349 F.3d 731 (4th Cir. 2003), a case discussed at length in the Cloaninger opinion. In Bailey, the defendant police officers, seeking qualified immunity from an excessive force claim brought under § 1983, argued that they had probable cause to seize the plaintiff  [*36] for an emergency mental evaluation based on a neighbor’s 9-1-1 report that the plaintiff had threatened suicide. 349 F.3d at 740. The Fourth Circuit rejected this argument, stating that “[w]ithout more, the 911 report cannot bear the weight that the officers would place on it.” Id. (emphasis added). The Fourth Circuit affirmed the district court’s decision denying the defendants qualified immunity. Id. at 745. In the present case, Defendants also rely on Plaintiff’s 9-1-1 call as justification for their suspicion of exigent circumstances. Here, as the court held in Bailey, Plaintiff’s cancelled request for assistance cannot, without more, render objectively reasonable any suspicion of exigent circumstances held by Defendants.

In the Fourth Circuit decision in United States v. Moss, 963 F.2d 673 (4th Cir. 1992), the issue was whether the emergency doctrine justified a Forest Service law enforcement officer’s warrantless entry into a cabin while he searched for the owner of an illegally parked car. 963 F.2d at 678. The car blocked access to a road and was left there for a number of days. Id. at 675. The cabin in question was the first stop in the officer’s search. Id. When he arrived,  [*37] he noticed, “first, that there was no lock on the door and, second, that there were ‘fresh bike tracks’ in the vicinity of the cabin,” which “relieved his concern for the ‘safety’ of the car’s owner.” Id. Despite his relief, the officer decided to enter the cabin and testified to three reasons for doing so: (1) “under the mistaken impression that no one reserved the cabin, he thought it had been illegally broken into”; (2) “he wanted to locate the owner of the illegally parked car in order to have it moved”; and (3) he was still concerned about the welfare of “persons connected with the car[.]” Id.

The Fourth Circuit concluded that “there was no objectively reasonable basis upon which [the officer] could have determined that he confronted an emergency requiring immediate entry into the cabin[.]” Id. at 678. The court stated further that “there was nothing about the circumstances then confronting [the officer] (including his erroneous information) that warranted any perception of an emergency requiring immediate entry to attend to [his legitimate duties].” Id. at 679. The court noted that “there was no indication that any illegal occupant was inside [and] no immediate danger that the  [*38] cabin itself would be damaged, or that entry into it would prevent that.” Id. “Neither was there anything in the circumstances confronting [the officer] that warranted any objectively reasonable perception of an emergency that required immediate identification of the occupants in order to give them assistance—or indeed that assistance was needed.” Id.

Similarly, in the present case, there was no objectively reasonable basis for any suspicion that anyone in the Mial home was injured and required immediate assistance at the moment that Deputies Sherin and Ferguson forced their way inside. Additionally, there was no indication that Deputies Sherin and Ferguson even held such a suspicion after their first encounter with Plaintiff at the front door because they decided not to force entry at that time. After hearing their report about the first encounter, Sergeant Holway believed Deputies Sherin and Ferguson wanted to leave. There is no evidence in the record that shows that Deputies Sherin and Ferguson received any information suggesting that there was an emergency inside the house between their first and second encounters with Plaintiff. An order to make forcible entry from a supervisor  [*39] who had no more information about what was occurring in the house than Deputies Sherin and Ferguson is not information that indicates an emergency. Finally, viewing the evidence in the light most favorable to Plaintiff as the non-moving party, whether there was anything about the second encounter with Plaintiff that suggested an emergency requiring the officers’ forcible entry is, at best, disputed. Again, the undisputed facts before the Court do not establish any objectively reasonable basis for the perception of an emergency in the Mial home when Deputies Sherin and Ferguson made their entry.

In the Virginia Court of Appeals decision in Kyer v. Commonwealth, 45 Va. App. 473, 612 S.E.2d 213 (Va. App. 2005), the issue was whether police officers violated the Fourth Amendment when they walked into the criminal defendant’s apartment through a door that had been left open after knocking and receiving no answer. 612 S.E.2d at 215. The officers had caught one of two suspects that fled the scene of a burglar alarm, and the detained suspect directed the officers to the defendant’s apartment. Id. The court held that an objectively reasonable officer would not think that the emergency exception to the warrant  [*40] requirement applied in this situation. Id. at 217. The court noted that, although the door to the apartment was open, “[t]here were no signs of forced entry[, n]o one called out for help[,]” there were “[n]o sounds or observations [that] suggested panic or danger within the apartment[,]” and there were no reports from neighbors of “any suspicious circumstances suggesting foul play.” Id. at 217-18. “The mere discovery of an ‘open door’ of a residence—absent some other reason for concern—is not, in and of itself, a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property.” Id. at 218 (quoting State v. Christenson, 181 Or. App. 345, 45 P.3d 511 (2002)) (internal quotation marks omitted). Similarly, with respect to the present case, the Court finds that Plaintiff’s cancelled request for assistance was not, “in and of itself, a circumstance that could give rise to a reasonable belief that entry [was] necessary to prevent harm to persons or property.” Kyer, 612 S.E.2d at 218.

The present case is also similar to the Virginia Court of Appeals case Commonwealth v. Barnett, 2010 Va. App. LEXIS 367, 2010 WL 3540057 (Va. App. Sept. 10, 2010), where the issue was whether  [*41] the emergency doctrine justified a warrantless entry into a house by a police officer responding to a 9-1-1 call placed by the criminal defendant’s wife in which she reported a domestic assault. 2010 Va. App. LEXIS 367, 2010 WL 3540057 at *1-2. After the police officer knocked on the door, it was answered by a child who told the officer that the defendant’s wife was inside. 2010 Va. App. LEXIS 367, [WL] at *1. The officer announced his presence and entered the residence. Id. The defendant’s wife told the officer that she no longer required assistance. 2010 Va. App. LEXIS 367, [WL] at *2. After a second officer arrived, the defendant’s wife provided details of an assault on her by the defendant. Id. The court held that “the record contain[ed] no objective facts to support [the first officer’s] warrantless entry” and affirmed the trial court’s ruling that the warrantless entry was not justified by the emergency doctrine. 2010 Va. App. LEXIS 367, [WL] at *4.

The Barnett court distinguished the U.S. Supreme Court case Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006), where the Court held that warrantless entry was justified where, in responding to complaints of a loud party at 3:00 a.m., the police officers heard and could eventually see a “loud” and “tumultuous” altercation inside the house. 547 U.S. at 406. The noises the officers heard when they arrived included “thumping and crashing” as well as “people yelling ‘stop, stop’ and ‘get off me.'” Id. When the officers  [*43] proceeded around the house to the back, “they could see that a fracas was taking place inside the kitchen” and that persons involved were injured. Id. “In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning.” Id. Given the circumstances, the Court held that the Fourth Amendment did not require the officers to wait outside for consent to enter the residence. Id. The Supreme Court also discussed Stuart in the per curiam opinion in Michigan v. Fisher, 558 U.S. 45, 130 S. Ct. 546, 175 L. Ed. 2d 410 (2009), where the Court found exigent circumstances justifying warrantless entry into a home based on the “tumultuous situation” in the house encountered by the police officers in that case. 130 S. Ct. at 548. The Court noted that “the officers could see violent behavior inside,” including the criminal defendant “screaming and throwing things.” Id. at 549.

Viewed in the light most favorable to Plaintiff, the record before the Court in the present case more closely resembles the facts in Moss, Fisher, Bailey, Barnett, and Kyer than those in Stuart, Fisher, Cloaninger, Pleasants, and Hunsberger.  [*44] The evidence shows that the situation with which Deputies Sherin and Ferguson were faced was not tumultuous or tense. The circumstances, based on Plaintiff’s facts, could not have created an objectively reasonable suspicion or belief that forcible entry into the Mial home was necessary to render assistance or to prevent harm. There were no loud noises, no signs of violence or distress, and no information about Plaintiff or his family from third-party sources or from experience suggesting any risk of harm to person or property inside the home. Plaintiff’s cancelled request for assistance, Plaintiff’s refusal to let Deputy Sherin into the home when she requested entry, Plaintiff’s complaints about the Sheriff’s Office, and Sergeant Holway’s orders to force entry would not have been sufficient to support an objectively reasonable belief that there was any injury or risk of injury inside the house that required official action. Indeed, as noted supra, Deputies Sherin and Ferguson’s conduct up until the point of their forcible entry suggests that not even they perceived an emergency inside the home that justified forcible entry.

The Fourth Amendment law is clear that an objectively reasonable  [*45] belief or suspicion about the existence of such an emergency is required to justify forcible entry without a warrant or probable cause. For these reasons, the Court cannot grant Defendants qualified immunity and must deny their summary judgment motion as to Plaintiff’s unlawful entry claims.

  1. Excessive Force 

Defendants are not entitled to qualified immunity or summary judgment as to Plaintiff’s excessive force claims because Plaintiff has shown that genuine disputes remain regarding whether Defendants used objectively unreasonable force against Plaintiff in violation of Plaintiff’s clearly established Fourth Amendment rights.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A person may bring a claim under § 1983 against police officers in their individual capacity alleging excessive force where the officers’ conduct constitutes an unreasonable search or seizure in violation of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). “When reviewing [an] excessive force claim against an officer effecting a seizure, the Court uses an ‘objective  [*46] reasonableness’ standard in analyzing the officer’s action.” Guerrero v. Deane, 750 F. Supp. 2d 631, 654 (E.D. Va. 2010) (citing Graham, 490 U.S. at 388). The court must determine “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397. “To gauge objective reasonableness, a court examines only the actions at issue and measures them against what a reasonable police officer would do under the circumstances.” Rowland v. Perry, 41 F.3d 167, 172 (4th Cir. 1994) (citing Graham, 490 U.S. at 397). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97. Assessing the reasonableness of the use of force in a particular case “requires  [*47] careful attention to the facts and circumstances of [that] case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396.

In the present case, based on the evidence in the record, the Court holds that Defendants are not entitled to qualified immunity or otherwise entitled to summary judgment with respect to Plaintiff’s excessive force claim for two reasons. First, Plaintiff’s constitutional right to be secure in his person against the unreasonable use of force by police officers in the absence of any crime, any threats to the safety of the officers or others, or any active resistance to or evasion from arrest is clearly established by the Supreme Court decision in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), and subsequent decisions by various courts relying on that case. Second, Plaintiff’s Fourth Amendment right to security in his person in his home would have been violated on the facts he has presented in opposition to Defendants’ summary judgment motion. Plaintiff testified in his deposition that Deputies  [*48] Sherin and Ferguson pushed him back as he was standing at the door to his home and complaining about the Loudoun County Sheriff’s Office. Plaintiff was also pushed by another officer, Deputy Altom, and tased by a fourth officer, Deputy Sayre, both of whom had quickly entered his home after he was initially pushed back by Deputies Sherin and Ferguson. According to Plaintiff’s testimony, there was only enough time for him to say “You are not authorized to enter my home” twice before Deputy Sayre used the Taser on him. According to Mr. Kirkland’s testimony, the forcible entry and Deputy Sayre’s use of the Taser all happened in a matter of seconds.

Virtually all of the facts concerning the physical altercation between Plaintiff and Defendants remain in dispute. Perhaps the only relevant facts not in dispute are the facts that Deputies Sherin and Ferguson forced their way into Plaintiff’s home and that Deputies Altom and Sayre quickly followed them into the house. According to Defendants, a physical struggle ensued between Plaintiff, Deputy Sherin, and Deputy Ferguson where Plaintiff had his arms around Deputies Sherin and Ferguson, the officers struggled to gain control, Deputy Altom joined  [*49] this struggle but failed to gain control over Plaintiff, and then, at Deputy Sherin’s behest, Deputy Sayre tased Plaintiff. Under the set of facts presented by Defendants, the use of force against Plaintiff would have been reasonable, as Plaintiff posed “an immediate threat to the safety of the officers” and actively resisted their use of force. Graham, 490 U.S. at 396. Thus, the disputed facts regarding the physical engagement between Plaintiff and Defendants are material to the question of whether Defendants violated Plaintiff’s Fourth Amendment rights. The genuine factual disputes about the events that occurred between the forcible entry and the use of the Taser against Plaintiff render unclear the merits of Defendants’ argument that the use of force against Plaintiff by Deputies Sherin and Ferguson was not excessive or unreasonable. Given the contesting accounts of what occurred in the Mial home, it is not clear exactly what force was used against Plaintiff by Deputies Sherin, Ferguson, and Altom. All that is clear about their use of force against Plaintiff is that force was used, including some bodily force and the use of a Taser.

On a motion for summary judgment, the Court cannot  [*50] resolve the factual disputes presented in the parties’ conflicting testimony but, rather, must view the facts in the light most favorable to Plaintiff, as the non-movant. Provided the genuine issues of material fact in the record, Defendants’ Motion for Summary Judgment as to Plaintiff’s excessive force claim must be denied.

  1. CONCLUSION 

The Court DENIES Defendants’ Motion for Summary Judgment because genuine issues of material fact remain regarding whether Defendants violated Plaintiff’s constitutional rights in forcibly entering his home without a warrant and using excessive force against him once inside. Defendants are not entitled to qualified immunity from Plaintiff’s unlawful entry claims because: (1) Plaintiff’s constitutional right to be secure in his home against warrantless and forcible intrusion in the absence of exigent circumstances or probable cause is clearly established; (2) Plaintiff’s constitutional right to be secure in his person against the unreasonable use of force by police officers in the absence of any crime, threats to anyone’s safety, or active resistance to or evasion from arrest is clearly established; and (3) evidence in the record supports a finding that  [*51] these rights were violated when Defendants forcibly entered Plaintiff’s home and then used force to incapacitate Plaintiff once inside. Defendants are not entitled to summary judgment as to the unlawful entry claims because the record does not present undisputed facts that would have led a reasonable officer in Defendants’ positions to believe that immediate entry into Plaintiff’s home was necessary to render assistance or prevent harm at the time Defendants made their entry. Defendants are not entitled to summary judgment as to the excessive force claim because the record does not present undisputed facts that would have led a reasonable officer in Defendants’ positions to believe that the force used against Plaintiff, including the use of a Taser, was necessary under the circumstances. Indeed, virtually all material facts about the physical contact between the parties after Defendants entered Plaintiff’s home remain in dispute. The significant factual disputes presented in the record cannot be resolved on Defendants’ Motion for Summary Judgment and must be reserved for trial.

The Clerk is directed to forward a copy of this Memorandum Opinion to counsel.

ENTERED this 9th day of July,  [*52] 2012.

Alexandria, Virginia

7/9/12

/s/ Gerald Bruce Lee

United States District Judge

Mial v. Sherin, 2012 U.S. Dist. LEXIS 95545, *1-52 (E.D. Va. July 9, 2012)

U.S. Bankruptcy Court, E.D.V.A

U.S. Bankruptcy Court, E.D.Va.

In re: Tyson’s Tree Service, Inc. Case No. 11-17476-BFK, Chapter 11, Proof of claim deemed timely filed on December 4, 2013.

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