United States District Court, E.D. Virginia, Richmond Division
For Brandon Raub, Plaintiff: Anthony F. Troy, LEAD ATTORNEY, Eckert Seamans Cherin & Mellott LLC (Rich), Richmond, VA; Stephen Charles Piepgrass, William Henry Hurd, Troutman Sanders LLP, Richmond, VA.
For Michael Campbell, Defendant: Jeffrey Lee Mincks, LEAD ATTORNEY, Julie A.C. Seyfarth, Stylian P. Parthemos, Chesterfield County Attorney's Office, Chesterfield, VA.
For Chesterfield County Police Department, Movant: Michael S. J. Chernau, LEAD ATTORNEY, Chesterfield County Attorney's Office, Chesterfield, VA.
Henry E. Hudson, United States District Judge.
(Defendant's Motion for Summary Judgment)
This is a civil rights action brought under 42 U.S.C. § 1983 against Michael Campbell (" Campbell" ), a Chesterfield County mental health clinician, alleging violations of Plaintiff's First and Fourth Amendment rights. In essence, Plaintiff claims that as a result of Campbell's inept mental evaluation, Plaintiff was detained without probable cause, pending a more comprehensive mental assessment. Plaintiff's core contentions are that Campbell misconstrued his comments and actions as posing a threat of imminent danger as a result of mental illness. His allegations hinge in large part on the opinion of a practicing psychologist who, after a retrospective analysis, disagrees with Campbell's conclusion. Moreover, Plaintiff alleges that the law enforcement officers' actions, abetted by Campbell, were intended to suppress his First Amendment right to criticize policies of the United States.
The case is presently before the Court on the remaining defendant, Campbell's Motion for Summary Judgment, premised primarily on his contention that he is entitled to qualified immunity on the constitutional claims. Both parties have filed extensive memoranda supporting their respective positions. The Court heard oral argument on February 18, 2014. For the reasons that follow, Campbell's Motion for Summary Judgment will be granted.
This case evolves from a communication sent to the Federal Bureau of Investigation by an individual who had previously served with Plaintiff Brandon Raub (" Raub" ) in the U.S. Marine Corps concerning disturbing information posted by Raub on the Internet. This individual described Raub's postings as being increasingly threatening in tone. (Def.'s Mem. Support Mot. Summ. J., Ex. B, Paris Dep. at 44:11-13, ECF No. 90-2; and Ex. F, Campbell Dep. at 41:18-20, ECF No. 90-6.)
Several days later, on August 15, 2012, an FBI agent requested that Detective Michael Paris (" Detective Paris" ) conduct a review of Chesterfield County Police Department records to determine what, if any, prior contact they had with Raub. At that time, Detective Paris was on detail to the FBI Joint Terrorism Task Force. Later that same day, Howard Bullen (" Bullen" ), another former Marine who had served with Raub in Iraq, contacted the FBI to express his concern about Raub's unsettling behavior and threatening communications. Suspecting that Raub may be contemplating violent acts, Bullen relayed a number of Raub's postings to the FBI. (Paris Dep. at 44.) These postings revealed comments by Raub that he would be chosen to lead " the revolution" and that " [m]en will be at my door soon to pick me up to lead it." (Campbell Dep. at 49:22-23.) The Facebook postings sent by Bullen to the FBI also included the following comments:
" I'm gunning whoever run the town." (August 13, 2012)
" This is the start of you dying. . . ." (August 14, 2012)
" Richmond is not yours. I'm about to shake some shit up." (August 14, 2012)
" This is revenge. Know that before you die." (August 15, 2012)
( Id. at 49:6-14; Paris Dep. at Ex. 7 thereto.)
Bullen further advised the FBI that in his view, Raub's Facebook postings had become increasingly threatening and action-oriented. Bullen expressed to the FBI his concern that Raub's postings were " possibly more than just extremist rhetoric" and that he personally felt Raub genuinely believed in this and was not simply looking for attention. (Paris Dep. at 44:12-13; Ex. 7 thereto.) The following day, August 16, 2012, the above described e-mail traffic was forwarded to Detective Paris. ( Id. at Ex. 7 thereto.)
Disturbed by Raub's postings, the FBI agent supervising the Joint Terrorism Task Force requested that Chesterfield County police officers, accompanied by FBI agents, conduct an interview of Raub to determine if he posed a serious risk of violence. ( Id. at 47:4-48:22.) According to Paris, the supervising FBI agent instructed him that " [t]he postings are a little more volatile. They're getting a little bit more violent oriented and we can't wait until Friday. We've got to go tonight." ( Id. at 54:9-14.) Later that evening, a team of law enforcement officers was assembled to perform that task. The group was comprised of three Chesterfield officers, including Detective Paris, three FBI agents, and a secret service agent. As Detective Paris explained, " [i]t was determined that contact would be made to determine . . . whether Brandon Raub was capable of acts of violence to the public or . . . to determine if there was a need for Crisis Intervention to conduct an evaluation." ( Id. at 48:18-22.)
Following preliminary planning, Detective Paris, along with an FBI agent, conducted a conversation with Raub in the doorway of his residence. When asked whether he intended to carry out the violent acts mentioned on his Facebook post, Raub gave evasive responses. ( Id. at 70:1-3.) At one point during the interview, Raub advised Detective Paris and the agent that the federal government launched a missile into the pentagon and that there was no airplane that flew into the structure on 9/11. ( Id. at 96:12-14.) Raub also inquired why the FBI was not taking action against government officials for their crimes against American citizens. ( Id. at Exs. 1 and 2 thereto.) He further stated that the federal government flies planes over people's houses, exposing them to the radioactive substance thorium. ( Id. )
The interview conducted of Raub did little to allay their concerns. At its conclusion, the FBI agent advised Detective Paris, that " [w]e need to get this guy evaluated." ( Id. at 66:24-67:1.) Detective Paris concurred. ( Id. at 33:21-22; 66:24-67:1-2.)
At approximately 7:15 p.m. on August 16, 2012, Campbell was in his office at the Chesterfield County Department of Mental Health Support Services. (Campbell Dep. at Ex. A thereto.) He received a telephone call from the Chesterfield County Emergency Communication Center requesting that he contact Detective Paris. ( Id. at Ex. A thereto; 25:7-8.) Campbell promptly placed the call and was advised by Detective Paris that he was assisting the FBI and Secret Service in an investigation of Raub. Detective Paris informed Campbell that in company with other Chesterfield officers and federal agents, he had just completed an interview of Raub at Raub's residence. According to Campbell, he received the following information:
Detective Paris informed me that Mr. Raub had made on-line threats about killing people, that he believed that the United States Government had perpetrated the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, and that he believed that the government was committing atrocities on American citizens by dropping a radioactive substance called thorium on them from airplanes. Detective Paris indicated to me that the statements and threats were made over the Internet, and he described the language of some of the threats to me. Although I do not remember the exact wording of any of the threats now, they were specific threats of violent action against human beings.
( Id. at 86:9-22.)
Detective Paris also advised Campbell that the FBI had received information from another individual who had served with Raub in the U.S. Marine Corps. This individual described Raub's behavior as recently becoming more extreme. Detective Paris informed Campbell that there were " several Marines that were concerned, several Marines that knew Brandon, knew how effective he was, how, you know, he was an expert with explosives, and in his current communications with them, they felt that he was at extreme risk of doing something to hurt people." ( Id. at 78:12-17.)
During their fifteen minute conversation, at Campbell's request, Detective Paris also described Raub's behavior and rapid mood swings. Detective Paris characterized
Raub as preoccupied and distracted.
Mr. Raub would make eye contact with Detective Paris for a few seconds, but then his eyes would rove away while he continued to talk before returning to Detective Paris. In my professional experience, this phenomenon can sometimes be evidence of psychosis. It can indicate that the subject is distracted by some internal stimulus. Detective Paris also informed me that Mr. Raub had rapid mood swings during their conversation -- another common symptom of instability -- and that when Detective Paris asked him about the specific threats which he had made, Mr. Raub would not answer his questions.
(Def.'s Mem. Support Summ. J., Ex. E, Campbell's Ans. to Interrogs. at 3, ECF No. 90-5.) Campbell found these observations by Detective Paris to have significance in his evaluation.
At this point, Detective Paris and Special Agent Terry Granger (" Special Agent Granger" ) of the FBI, who assisted him with the interview, concluded " we need to get this guy evaluated. You know, we can't leave here without doing something." (Paris Dep. at 33:20-22; 66:24-67:2.) When Detective Paris sought Campbell's guidance, he concurred that an evaluation was appropriate. (Campbell's Ans. to Interrogs. at 4.) Detective Paris also advised Campbell that he " believed that Mr. Raub represented a threat in some form to harm other individuals." (Paris Dep. at 71:11-13.) Detective Paris concluded that there was probable cause to detain Raub for a mental health evaluation under Va. Code § 37.2-808(B). (Campbell's Ans. to Interrogs. at 2.) Raub was then transported to the Chesterfield County Detention Center for a mental evaluation.
Subsequently that evening, Raub was interviewed by Campbell for approximately fifteen minutes, at which point Raub stated he chose " not to answer any more questions." (Campbell Dep. at 46:22-23.) During the interview, Raub demonstrated what Campbell perceived to be symptoms of paranoia as evidenced by his statement that he believed that the U.S. government caused the atrocities of 9/11. ( Id. at 45:5-8.) Raub also demonstrated what Campbell described as red flags during the interview. For example, Campbell identified what he considered to be unpredictable behavior: " drastically changed their baseline thinking and blaming this on the government, blaming atrocities on the government, exploding the Pentagon by the government and feeling that he has been somehow chosen to be a leader of this oncoming revolution to me is unpredictable behaviors." ( Id. at 48:3-8.)
At the end of his interview with Raub, Campbell initially was hesitant to conclude that either the Internet postings described to him or the threats were sufficient in his opinion to warrant a temporary detention order. Campbell then asked the Secret Service agent to provide him with copies of the e-mails from the two individuals who had previously served with Raub in the Marine Corps. After ...