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November v. Chesterfield County

United States District Court, E.D. Virginia, Richmond Division

October 31, 2017

MILES ZACKERY-COLE NOVEMBER, et al, Plaintiffs,
v.
CHESTERFIELD COUNTY, VIRGINIA, et al, Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE

         On February 7, 2015, the plaintiff, Miles November, led Chesterfield County police officers on a car chase. As so often happens, the chase ended when November crashed his car and flipped it numerous times. Gasoline leaked on him from the wrecked car. A Chesterfield police officer, Ryan Swope, apparently perceived resistance from November when officers tried to restrain him. Swope tased[1] November. Soaked with gasoline, November went up in flames, suffering horrible injuries.

         November has sued under 42 U.S.C. § 1983. He claims a) that the Chesterfield County Police Department ("CCPD") and Thierry Dupuis (in his official capacity as the Chief of the CCPD) put in place a policy or custom that permitted excessive use of force by police officers using Tasers, b) that Chesterfield County (the "County") and Dupuis failed to train officers on proper Taser use, and c) that Dupuis and James Lamb failed to supervise Officer Swope. November brings a state law negligence claim and a Fourth Amendment failure to supervise claim against a psychologist, Jon Moss, Ph.D., alleging that Moss inadequately screened Swope before declaring him fit for duty.

         November's complaint fails to plausibly allege that Chesterfield's policies caused a constitutional violation. The complaint also fails to establish County liability on account of a sufficiently persistent or widespread history of Taser abuse. The failure to supervise claims against Dupuis and Lamb cannot succeed because the defendants lacked notice of the risk Swope posed and because the CCPD properly addressed Swope's prior misconduct. November fails to state a plausible claim against Moss because he did not owe November any duty under Virginia tort law and because the complaint fails to plausibly allege that Moss knew of an unreasonable and pervasive risk to the public. The Court dismisses those claims.

         The complaint does, however, state a plausible claim regarding the failure to train CCPD officers, and the Court will deny the motion to dismiss the failure to train claim. Although Local Rule 56 restricts a party to a single motion for summary judgment in a case, the Court will grant the defendants leave to file an expedited motion for summary judgment on the failure to train issue, as well as a plenary motion later.

         I. BACKGROUND

         On February 7, 2017, November crashed his car while fleeing the police. Officers on the scene smelled gasoline, and Officer Swope radioed for a fire crew and reported that "a lot" of fuel was leaking from the car. Four officers dragged November about 20 or more feet from the car where he remained un-handcuffed, compliant, and injured. When the fire truck arrived, it startled November, and he began to "thrash." Apparently Swope perceived this as dangerous resistance, and approached the five men shouting "Taser, Taser, Taser." The officers cleared the area, and Swope fired the Taser. November, soaked with gasoline, became engulfed in flames.[2]

         CCPD issues "Operational Policy/Procedure" manuals to its police officers. Procedure 2-29 governs Tasers specifically, and it refers to Procedure 2-3, which covers the use of force generally. Section 2-29 says that "the TASER should only be used against subjects who are exhibiting active aggression or who are actively resisting in a manner that, in the officer's judgment, is likely to result in injuries to themselves or others." (Dk. No. 19-1, p. 2.) It also says that "the TASER should not be used in the known presence of combustible vapors or liquids or other flammable surfaces." (Id.) Procedure 2-3 allows officers to use only that "force which a reasonably prudent officer would use under the same or similar circumstances." (Dk. No. 19-2, pp. 1-4.) Section 2-3 defines "deadly force" as "any use of force that is likely to cause death or serious bodily harm" and limits the use of deadly force to situations where "an officer reasonably believes that they are in imminent danger of death or serious injury, or when the officer reasonably believes that another person is in imminent danger of serious injury." (Id.)

         The plaintiffs cite a great deal of numerical and historic data. They allege that CCPD officers deployed Tasers 136 times in the four years from 2012 through 2015. In five instances, an officer tased someone in handcuffs. Officers also tased fleeing suspects, mentally ill persons, and minors. Officers once used a Taser in a hospital near flammable gas tanks and once after a suspect used spray paint against the officers. Thirty alleged incidents involved tasing someone more than once.

         For these incidents to have meaning, however, the Court must view the County's Taser history in the context of publicly available information, known or easily determined by anyone in the Richmond area. Chesterfield is a suburban county bordering the City of Richmond. In 2015, the year of November's accident, the County had an estimated population of over 335, 000.[3] The County has two major north-south highways, Interstate 95 and U.S. Route 1. At various points in the County, Interstate 95 has an average daily traffic volume of over 100, 000 cars; Route 1 has between 15, 000 and 20, 000.[4] The County also has two heavily travelled east-west federal highways, Routes 60 and 360. And, of course, hundreds of other roads crisscross the County.

         With this large population and heavy traffic, Chesterfield County's police officers have thousands of contacts with travelers and residents. Many of these contacts are unfriendly, resulting in arrests or the issuance of summonses. In 2015, the year of November's accident, Chesterfield's General District Court[5] had 12, 498 criminal cases, and 50, 938 traffic cases.[6] In other words, in the four years referred to by the plaintiffs, the 136 uses of Tasers occurred against a background of approximately 250, 000 arrests and summonses.

         Continuing his arithmetical argument, November alleges that Swope used his Taser four times more often than the Chesterfield average. While this may be true, in his entire career, Swope only used the Taser four times-three of them before he tased November. Chesterfield reviewed Swope's Taser usage and found that he never violated CCPD policies.

         Chesterfield disciplined Swope for two prior infractions unrelated to Tasers-once for a verbal altercation with a Richmond City Police Officer and once for failure to leash his police dog, resulting in injuries to another officer. In response to these infractions, the County suspended him for five days without pay, placed him on probation for one year, and sent him to meet with Dr. Moss for a fitness-for-duty evaluation, which he passed.

         Notwithstanding Moss's evaluation, all was not well with Swope during his tenure as a Chesterfield officer. After the incident in this case, Swope filed a worker's compensation claim saying that he suffered from Post-Traumatic Stress Disorder ("PTSD") which led him to snap at people and feel irritable and uneasy in crowds. The complaint does not allege that Swope told Dr. Moss of these issues in his fitness for duty examination. In September 2014, however, a medical clinician informed the CCPD that Swope had been participating in outpatient therapy for acute stress and PTSD.

         II. DISCUSSION

         A. Chesterfield County

         A local government may be held liable for the actions of its police officers under 42 U.S.C. § 1983 only if the governmental body itself caused the deprivation of the plaintiffs rights. Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. New York City Dep't of Social Services, 436 U.S. 658, 692 (1978)). Under Monell, a plaintiff can prevail if (1) he suffered a deprivation of his federal rights, and (2) the execution of the government's "policy or custom" inflicted the injury. Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003). A locality can develop a policy or custom in four ways:

(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that "manifest[s] deliberate indifference to the rights of citizens"; or (4) through a practice that is so "persistent and ...

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