United States District Court, W.D. Virginia, Big Stone Gap Division
Michael A. Bragg, Bragg Law, Abingdon, Virginia, for Plaintiffs; Henry S. Keuling-Stout, Keuling-Stout, P.C., Big Stone Gap, Virginia, for Defendants.
OPINION AND ORDER
JAMES P. JONES, District Judge.
In this § 1983 civil action against a deputy sheriff and his supervisor asserting a claim of malicious prosecution, the defendants have moved for summary judgment. Because it is undisputed that separate grand juries found probable cause to believe that a criminal offense had been committed, and the plaintiffs have presented no evidence that the deputy sheriff misled the prosecutors or the grand juries, I find that any alleged wrongful conduct by the deputy sheriff was insulated by the subsequent events as a matter of law. Additionally, I find that the plaintiffs have not made a sufficient showing under Rule 56 as to their supervisory liability claim. Therefore, I will enter judgment in favor of the defendants.
Danny Bryant and Rockyfork Mine Electronics, Inc. ("Rockyfork"), a corporation owned by Bryant's wife, filed this action under 42 U.S.C. § 1983, seeking damages against R.D. Oakes, the Sheriff of Wise County, Virginia, and his former deputy sheriff, Carl W. Carico,  alleging a violation of the plaintiffs' Fourth Amendment rights. Following discovery, the defendants filed a joint Motion for Summary Judgment. The motion has been briefed and orally argued and is ripe for decision.
Viewing the facts contained in the summary judgment record in a light most favorable to the plaintiffs, reveals as follows. On July 30, 2004, in the course of his duties, Deputy Sheriff Carico questioned an employee of Falcon Coal Company, Douglas Collins, after Collins had been caught attempting to steal coal mining equipment from his employer. Based upon Carico's suspicions that the plaintiff Danny Bryant had been purchasing stolen mining equipment, Collins agreed to attempt a sale of mining equipment, including what is referred to as a "bridge and firing package, " to Bryant as part of a sting operation. However, the equipment was not actually stolen, but rather borrowed from Falcon Coal for purposes of the sting operation. Bryant paid a total of $2, 500 for the equipment, which included a $1, 500 payment at the time of the transaction and $1, 000 credit for money Collins owed Bryant. Collins wore a wire, which recorded the transaction. The recording of the transaction was apparently misplaced and later found, and the parties vigorously dispute both the authenticity of the recording and the circumstances surrounding the transaction.
Based on these events, on August 19, 2004, Deputy Sheriff Carico submitted sworn criminal complaints to a state magistrate, who issued arrest warrants against Bryant for multiple charges. These charges included conspiracy to commit grand larceny, conspiracy to commit money laundering and money laundering, conspiracy to buy and receive stolen property, and two counts of buying and receiving stolen property. The sworn criminal complaints that supplied probable cause for each of these charges were essentially identical. In relevant part, the complaints recited that Bryant had previously made arrangements with Collins to purchase mining equipment,  and that these transactions were consummated on July 30, 2004. The complaints then alleged that "Mr. Bryant acknowledge[d] during the purchases that he kn[ew] the property [wa]s stolen and t[old] Mr. Collins if anyone ask[ed] about it, to deny any knowledge." ( See, e.g., Mem. Opp'n Mot. Summ. J. Ex. 7, ECF No. 29-7.) The complaints stated that upon questioning by Carico and another officer after making the purchases, Bryant denied any knowledge of the equipment. He eventually relented, however, and admitted purchasing the equipment. The property was then returned to its owner, Falcon Coal. Nowhere did the complaints specifically recite that the property at issue was not actually stolen, but borrowed from Falcon Coal.
On September 13, 2004, a civil forfeiture proceeding was initiated based on the same allegations, supported by a sworn information signed by Carico. Subsequently, Carico served a seizure warrant on Bryant and Rockyfork, and seized Rockyfork's entire inventory of electronic mining equipment, which the plaintiffs claim was valued at hundreds of thousands of dollars. The equipment was placed in a locked construction trailer by Sheriff Oakes.
On December 3, 2004, the state prosecutor obtained an indictment on identical charges as the arrest warrants. Carico acknowledges that he was the lead investigator at the time and that it would have been customary for him to appear before the grand jury, but he asserts that he does not remember whether he actually testified or not. No other evidence has been presented regarding the substance of the grand jury proceedings.
After the indictment was issued, the case apparently descended into a deep freeze. No action was taken regarding either the indictment or the civil forfeiture by either the prosecutor or Bryant's defense attorney for several years, during which time there was, for various reasons, turnover within the prosecutor's office and Sheriff Oakes' office. On April 20, 2009, a different prosecutor obtained a new indictment that was identical to the previous indictment, but with two additional charges based on Bryant's alleged "attempt" to receive stolen property. By that time, Carico was no longer employed by Sheriff Oakes, and he did not testify before the grand jury.
Bryant waived a jury and a bench trial was conducted on March 26, 2010. Thereafter, on August 11, 2011, an order was entered by the court dismissing all charges. Although no opinion was issued by the state judge and the transcript of the court proceedings is not in the record, the parties agree that the court based its decision on the fact that the heart of the case - the sting operation against Bryant - involved conduct that was not then illegal under Virginia law. At that time, in 2004, the Virginia criminal statute governing receipt of stolen goods stated the following:
If any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof.
Va. Code Ann. § 18.2-108 (emphasis added). In other words, the statutory text unambiguously required as an element of the crime that the property in question be stolen; it did not criminalize receipt of property thought to be stolen but not actually stolen, such as in the sting operation at hand. See Gilland v. Commonwealth, 35 S.E.2d 130, 131 (Va. 1945) (stating that conviction under § 18.2-108 required proof "[t]hat "the goods or other things" were previously stolen by some other person'" (citation omitted)); 66 Am. Jur. 2d, Receiving Stolen Property § 7 ("An essential element of the offense of receiving stolen property is that the property received must be stolen property.").
This plain statutory meaning was further reinforced in 2008, prior to the second indictment in this case, when the Virginia legislature amended § 18.2-108, adding the following language plainly meant to address law ...