United States District Court, W.D. Virginia, Danville Division
GWENDOLYN SMALLS, as Administratrix of the Estate of Linwood Raymond Lambert, Jr., deceased, Plaintiff,
CHIEF OF POLICE JAMES W. BINNER, DEPUTY CHIEF OF POLICE BRIAN K. LOVELACE, TOWN OF SOUTH BOSTON, CORPORAL TIFFANY BRATTON, OFFICER CLIFTON MANN, and OFFICER TRAVIS CLAY, Defendants.
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the Court on the parties’ competing motions for summary judgment on the issue of qualified immunity. The parties have fully briefed the motions, and I have reviewed the relevant filings and counsel’s arguments. For the reasons stated herein, I will grant Defendants’ motion in part and deny it in part. These rulings defeat or obviate respective facets of Plaintiff’s motion, which will be denied.
I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND 
Gwendolyn Smalls (“Plaintiff”) is the sister of Linwood Raymond Lambert, Jr., (“Decedent”) and the executrix of his estate. Claiming relief under federal and state law, she has filed the present action against the Town of South Boston and several members of the South Boston Police Department (“SBPD”): Chief of Police James W. Binner, Deputy Chief of Police Brian K. Lovelace, Corporal Tiffany Bratton, Officer Clifton Mann, and Officer Travis Clay (collectively, “Defendants”). The parties have moved for summary judgment on the question whether Corporal Bratton, Officer Clay, and Officer Mann are entitled qualified immunity. The motions center on the events preceding Decedent’s death, early in the morning of May 4, 2013.
A. Emergency Custody
In the evening of May 3, 2013, Decedent checked into the South Boston Super 8 Motel. Beginning at 2:48 a.m., the SBPD began to receive a series of phone calls from Decedent, somewhat unclearly relating a room number and a need for assistance. (See generally Decl. of Thomas N. Sweeney ex. A, at pgs. 2-6, 8-10, Dec. 30, 2015 [ECF No. 138-3]; Br. in Supp. of Defs.’ Mot. for Summ. J. exs. 1 & 1A (hereinafter “Defs.’ Supp. Br.”), Dec. 16, 2015 [ECF Nos. 125-1, -2].) Although Decedent related the wrong room number on several attempts, Corporal Bratton, Officer Mann, and Officer Clay eventually reached his room after 4:30 a.m. (See Defs.’ Supp. Br. ex. 2, at pgs. 1-2, [ECF No. 125-3] (hereinafter “Clay Report”); id. ex. 3, at pg. 3 [ECF No. 125-4] (hereinafter “Bratton Report”); id. ex. 4, at pg. 1 [ECF No. 125-5] (hereinafter “Mann Report”).)
Officer Clay and Officer Mann arrived first. (See Bratton Report at pg. 1.) Consistent with information received from the motel’s night manager, they heard the sound of metal banging (or something breaking) coming from inside the room. (Clay Report at pg. 2; Mann Report at pg. 2.) Inside, Officer Clay and Officer Mann found Decedent out of breath and sweating profusely, with blood on his left hand and a white substance draining from his nostrils. (Clay Report at pg. 2; Mann. at pg. 2.) They also found overturned furniture, mattresses removed from bed frames, broken glass, lights torn off of the wall, broken chairs, blood drops on the bed’s sheets, and various other items broken or strewn about. (Clay Report at pg. 2; Mann Report at pg. 2-3; Defs.’ Supp. Br. ex. 5 [ECF No. 125-6] (photographs); see also Bratton Report at pg. 2.) Decedent was holding a piece of the bed, which he put down at Officer Mann’s request. (Mann Report at pg. 2.)
The officers asked Decedent if he required assistance, and Decedent exclaimed that “[s]omeone was after him, ” that the blood in the room was not his, and that “they had lights on him”-“those red lights.” (Clay Report at pg. 2.) By these red lights, he meant the targeting beams of a gun. (See Bratton Report at pg 3.) Decedent claimed to have stabbed two people in the room and to have hidden their bodies in the ceiling tiles, but there were no bodies. (Id.; Mann Report at pg. 2.) Decedent seemed to be paranoid and hallucinating. (Mann Report at pg. 2.) He admitted that he had been drinking that evening (id. at pg. 3) and stated that he had consumed the entire contents of an empty bottle of vodka found in the room (Bratton Report at pg. 2). Decedent denied having any drugs, being on any medication, or having any type of medical condition. (Bratton Report at pg. 2.) When standing in the hallway, he stared at the lights and repeated “that they were after him.” (Clay Report at pg. 3.) Decedent’s eyes were jumping about, and when Decedent saw another motel guest walk into the hallway, Decedent stated “that he didn’t like that guy and that he was after [Decedent].” (Id.) He cowered toward his room whenever someone came into the hall. (See id. at pgs. 3-4.)
Corporal Bratton determined that the officers “should take [Decedent] for a possible mental evaluation.” (Bratton Report at pg. 3.) The officers handcuffed Decedent with the intent to take him, under emergency custody,  to the hospital, where the on-call case worker waited. (See Clay Report at pg. 4; Mann Report at pg. 3; see generally Defs.’ Supp. Br. ex. 15, at pg. 13:01-:15 [ECF No. 125-19] (hereinafter “Clay Dep.”).) They informed Decedent that he was not under arrest and that they were finding him help. (Clay Report at pg. 3; Bratton Report at pg. 3; Mann. Report at pg. 3.) On the way to Officer Clay’s police car, Decedent continued to speak about the “lights” and stopped whenever he thought that a light shone on him. (Clay Report at pg. 4.) After an unremarkable search of Decedent’s person, the officers directed him into Officer Clay’s car. (See Clay Report at pg. 4; Bratton Report at pg. 3.)
En route to the hospital, Decedent ducked to avoid being seen through the police car’s rear window and continued to express fears about lights and the car behind him. (See generally Sweeney Decl. ex. J., at 1:35-6:00 [ECF No. 138-12] (hereinafter “Clay Rear View Dashboard Video”).) Officer Clay reiterated to Decedent that the officers were taking care of him and that he would be fine. (See generally id. 0:00-6:40.) As they pulled up to park in front of the emergency room, Officer Clay related, several times, to Decedent that they had arrived. (Id. at 6:29-:37.)
B. Tasings at the Hospital Doors
After Officer Clay stated that they had arrived at the hospital, Decedent began to kick the rear right door’s window. (Id. at 6:38-:40.) Over Officer Clay’s multiple commands not to do so, Decedent continued kicking the window. (Id. at 6:40-:48.) Officer Clay exited the car and came to the rear left door. (Defs.’ Supp. Br. ex. 8, at 7:52-:58 [ECF No. 125-9] (hereinafter “Hosp. Video”).) Decedent kicked out the rear right window, its glass flying into the parking spots adjacent to that side of the car. (Clay Rear View Dashboard Video at 6:46-:48; Hosp. Video at 7:54-:57.) Officer Mann and Corporal Bratton made their way to Officer Clay’s car (Hosp. Video at 7:58-8:29); meanwhile, Officer Clay, his taser drawn, opened the rear left door (see Clay Rear View Dashboard Video at 6:53-:57). He commanded Decedent to calm down as Decedent repeated, “No sir!” and asked Officer Clay to take him to the emergency room. (Clay Rear View Dashboard Video at 6:56-7:02.) Officer Clay responded, “We’re at the emergency room!” (Id. at 7:02-:04.) His speech jittery, Decedent expressed that he would calm down and added that he had provided his mother with his room number and whereabouts. (Id. at 7:04-:18.)
Decedent shuffled along the backseat before exiting the rear right door, where Corporal Bratton and Officer Mann were positioned. (Id. at 7:20-:28; Hosp. Video at 8:35-:37.) Decedent evaded Corporal Bratton and Officer Mann and headed toward the hospital’s entrance. (Hosp. Video at 8:35-:39.) Corporal Bratton discharged her taser,  but “the cartridge was not installed so it was a dry stun with no contact with [Decedent].” (Sweeney Decl. ex. AA [ECF No. 138-20] (hereinafter “Bratton Interview”); see Hosp. Video at 8:38-:40; Clay Rear View Dashboard Video at 7:29-:31 (audio).) Decedent ran into and damaged the entrance doors,  which impeded him. (See Hosp. Video at 8:40-:44; Sweeney Decl. ex. I., at 7:30-:33 [ECF No. 138-12] (hereinafter “Clay Front View Dashboard Video”).) Corporal Bratton, Officer Clay, and Officer Mann caught up to Decedent, and Corporal Bratton and Officer Clay fired their tasers, in probe mode, at Decedent. (Hosp. Video at 8:42-:47; Clay Front View Dashboard Video at 7:33-:39.) Decedent stiffened and fell. (Clay Front View Dashboard Video at 7:33-:39.) On the way down, his head hit the hospital’s outer wall or a soap dispenser on it. (See Clay Report at pg. 5; cf. Sweeney Decl. ex. Y, at pg. 2 [ECF No. 138-20].)
Decedent remained stiff on the ground for a short while before attempting to rise while in close proximity to, and facing, Corporal Bratton. (Clay Front View Dashboard Video at 7:35-:40.) Upon this attempt, and from (roughly) Corporal Bratton’s third through her fifth discharge, he screamed loudly and stiffened, again, on the ground. (See id. at 7:40-:46.) The officers commanded him to stay back, to stay down, and to stop. (Id. at 7:43-:54.) During this time, Corporal Bratton added, “You understand, every time you do that, I’m gonna’ pop you.” (Id. at 7:46-:49.) One of the male officers then commanded Decedent to “[r]oll back over, ” whereupon Corporal Bratton discharged her taser a sixth time, and Decedent screamed and stiffened his body. (Id. at 7:56-8:01.)
The officers continued commanding Decedent to roll over or lie on his belly, and Decedent, at one time, responded, “I am, ” and began to mutter (seemingly to himself) something sounding like, “Just roll over.” (Id. at 8:10-:19.) A little while later-coinciding with Officer Clay’s second taser discharge and Corporal Bratton’s seventh-arcing could be heard, and sparking could be seen near Decedent’s feet and in a position directly in front of Officer Clay.(See id. at 8:17-:21.) Decedent’s manner did not appear to change at Officer Clay’s second or Corporal Bratton’s seventh tasings. (See id. at 8:17-:21.) Corporal Bratton disconnected the probes from her taser (id. at 8:22-:27), and around that time, Officer Clay did so, too (see Hosp. Video at 9:30). Through this time, the officers continued to command Decedent to roll over onto his stomach, and Decedent moved about on the ground, telling the officers that he was trying to do so (or that he would) and asking that they not hurt him. (See generally Clay Front View Dashboard Video at 7:56-9:03.)
Corporal Bratton reached her taser close to or against Decedent as he sat with his back somewhat leaning onto the hospital doors. (Id. at 8:41-:42.) Officer Clay and Officer Mann came closer as Corporal Bratton began to discharge, in stun mode, her taser against Decedent. (Id. at 8:42-:43.) She continued to place her taser against Decedent (id. at 8:43-:53), and for part of this time, Officer Clay leaned in and placed his taser, in stun mode, against Decedent (id. at 8:48-:49). The officers continued to order Decedent to roll over onto his stomach, and he responded, “If y’all stop, I will.” (Id. at 8:49:-53.) During this interaction, Corporal Bratton discharged her taser an eighth and ninth time, and Officer Clay discharged his a third.
The officers continued to command Decedent to roll over, and Officer Mann, who was holding leg restraints, grabbed and lifted Decedent’s right leg. (Id. at 9:03-:12.) Officer Clay grabbed Decedent’s upper body, helped Officer Clay turn Decedent over, and placed his knee on Decedent’s back to pin him to the ground. (Id. at 9:08-:15.) Corporal Bratton stood over Decedent’s torso, placed her taser on or near him, and commanded, “Roll around, ” as the other officers rolled Decedent over. (Id. at 9:11-:13.) Decedent continued to say, “No, sir!” (Id. at 9:05-:15.) Shortly after the officers had rolled him, Decedent seemed to stiffen or exert his body, while Officer Clay and Officer Mann exerted themselves, keeping Decedent pinned on the ground. (See id. at 9:13-:52.) While Decedent was pinned to the ground, Corporal Bratton stood over him with her taser and discharged it twice (her tenth and eleventh discharges) in stun mode. (See id. at 9:20-:28.) Officer Clay and Officer Mann were able to keep Decedent down on the ground until, eventually, Officer Mann shackled Decedent’s legs. (Id. at 9:13-:52.)
Decedent, shackled and handcuffed, rolled back over, raised his back from the ground, and stated, “I just took cocaine, man. I was just takin’ cocaine.” (Id. at 9:52 -10:01.) Corporal Bratton told him that he was under arrest. (Id. at 10:00-:06.) She informed dispatch that Decedent was arrested for resisting arrest and for damaging the hospital, the Super 8 Motel, and the police car. (See Defs.’ Supp. Br. ex. 1A, at pg. 1.)
Officer Mann removed taser probes from Decedent (see id. at 11:00-:06, 11:22-:40; Hosp. Video 12:11-:17, 12:30-:50)-three probes were in Decedent’s skin, one “was kind of stuck in [his] pants, ” and two lead wires were broken (Defs.’ Supp. Br. ex. 19, at pgs. 64:14-:17, 65:20-66:06 [ECF No. 125-27] (hereinafter “Mann Dep.”)). After, the officers picked Decedent up and walked him to Officer Clay’s police car. (Clay Front View Dashboard Video at 11:38-12:02; Hosp. Video at 12:55-13:20.) Upon arrival,  officers commanded Decedent to stand up and enter the backseat, and he eventually entered it with the officers’ assistance hoisting, pushing, and pulling him in. (Clay Rear View Dashboard Video at 12:15-:24; Hosp. Video at 13:20-14:33.) Decedent lay across the backseat. (See Clay Rear View Dashboard Video at 12:24.) While Officer Clay remained at his car’s driver door, Officer Mann retrieved the spent probe cartridges, Corporal Bratton checked the hospital doors, and the two surveyed the scene and spoke with hospital security. (Hosp. Video at 14:44-:45.) The officers then consulted among themselves (id. at 14:50-17:20) before Officer Mann began taking photographs of Officer Clay’s broken window and of the hospital doors (id. at 17:30-18:42).
C. Tasings in the Police Car’s Backseat
While the officers were outside and Officer Clay’s car doors were shut, Decedent sat up and began to swing his head about, several times hitting it against the car’s interior. (Clay Rear View Dashboard Video at 16:05-:34.) At one point, an officer outside yelled, “Stop!” (Id. at 16:17.) Decedent continued and began to thrust his head and his torso toward the rear right door. (Id. at 16:15-17:36.) The command to stop followed twice more (id. at 17:04-:09), but Decedent continued until he slouched his position in the backseat and raised his legs (id. at 17:09-:28). Outside, the officers began to approach and shouted various commands including, “Don’t do it!” “Stop!” “I’ll light your ass up!” “Don’t do it!” “Put ’em back! Put ’em back!” “Put your feet down!” “Put them down on the ground!” and “Sit up straight, act like you’ve got some sense!” (Id. at 17:30-18:00.) Decedent’s legs remained raised toward the front of the car. (See generally id.)
At the car’s right rear door, Corporal Bratton pointed her taser at Decedent as she continued her commands. (See id. at 17:40-18:04.) With his taser in hand, Officer Mann opened the car’s rear left door. (Id. at 17:58-18:00.) He placed his taser against Decedent’s left shoulder and commanded, “Sit up. Do it now. Do it now! Do it.” (Id. at 18:00-:09.) Corporal Bratton opened the car’s rear right door (id. at 17:57-:58) and placed her taser against Decedent’s leg (id. at 18:05-:10). Decedent continued to slouch, but he lowered his legs and positioned them to his right on the backseat. (See id. at 18:00-:09) Eventually, both Officer Mann and Corporal Bratton discharged their tasers in stun mode-Officer Mann’s first discharge and Corporal Bratton’s twelfth. (See id. at 18:07-:18.) Decedent reacted by jumping away from Officer Mann and, then, away from Corporal Bratton. (See id.) He lay across the backseat, his head at the rear left door and his legs toward the rear right door.
Officer Mann shut the door at which he was situated, and Corporal Bratton said to Decedent, “Get yo[ur] ass up, and act like you got sense.” (Id. at 18:10-:14.) Officer Mann reopened his door and commanded Decedent to sit up. (Id. at 18:14-:24.) Decedent slouched against the seat and mumbled. (Id. at 18:13-:22) Eventually, Officer Mann warned, “Sit up, or I’m going to tase you again, ” and placed his taser against Decedent’s shoulder. (Id. at 18:30-:32.) The warnings continued as Decedent sat slumped against the back seat. (Id. at 18:35-:41.) As the warnings continued, Officer Mann stunned (his second discharge) Decedent’s shoulder. (Id. at 18:39-:43.) Decedent did not seem to react. (See id.) Corporal Bratton placed her taser against Decedent’s leg; shortly thereafter, Officer Mann removed his taser from Decedent’s shoulder. (Id. at 18:44-:46.) Corporal Bratton’s commands to “[s]it up” continued, and she discharged her taser, in rapid succession, a thirteenth and fourteenth time. (Id. at 18:52-:55.) While pulling away from Decedent, she discharged her taser (her fifteenth discharge) in stun mode near or against Decedent’s leg. (See id. at 19:00-19:06.) Decedent reacted, rising up and to the right. (Id. at 19:06-:11.)
After letting Decedent sit for a little while, Officer Mann stepped into the car to lift Decedent’s torso so that he would be sitting in an upright position; however, his torso somewhat slouched to the right. (Id. at 19:16-:30.) At the rear right door, Officer Clay and, to some extent, Corporal Bratton helped position Decedent. (Id. at 19:22-:33; see generally Hosp. Video at 20:35-21:15.) After Officer Mann (with the others’ help) fastened Decedent in a seatbelt, Decedent leaned toward Officer Clay. (See Clay Rear View Dashboard Video at 19:54-20:00.) Officer Clay attempted a manual pain-compliance maneuver, and Decedent tried to bite him. (Clay Report at pg. 8; see Clay Rear View Dashboard Video at 20:00-:07.)
D. Transportation, Unresponsiveness, and Death
With Decedent seated and fastened in his seatbelt, the officers congregated briefly before Officer Mann took pictures of Decedent. (See generally Clay Rear View Dashboard Video at 21:25-22:10.) Decedent sat, leaning toward the broken-out window, blood on his lips and chin and a line of blood tracing down the left side of his neck to his collarbone area, some blood smeared at the front of his shirt collar and on the left shoulder. (See Decl. of Thomas N. Sweeney ex. N, Dec. 16, 2015 [ECF No. 127-15]; Defs.’ Resp. to Pl.’s Mot. for Partial Summ. J. ex. A, at pgs. 35-37, 39 (hereinafter “Defs.’ Resp. Br.”), Dec. 30, 2015 [ECF No. 137-1].) Perceiving potential difficulty maintaining control over Decedent (see Defs.’ Supp. Br. ex. 13, at pgs. 76:24-77:12 [ECF No. 125-14] (hereinafter “Bratton Dep.”)), Corporal Bratton decided that the officers would take Decedent to jail rather than to the emergency room (Mann Dep. at pgs. 99:20-100:07 [ECF No. 125-30]; Sweeney Decl. ex. EE, at pg. 26:13-:21 [ECF No. 138-24]). Officer Clay and Corporal Bratton returned to their respective cars and departed for the jail. (See generally Clay Rear View Dashboard Video at 22:15-23:00.) Officer Mann exclaimed that Decedent was “bloody as a hog” and “fucked up.” (Sweeney Decl. ex. P, at 1:58-2:00, 2:40-:44 [ECF No. 138-15] ...