United States District Court, E.D. Virginia, Richmond Division
PATERSON BROWN, SR. and KATHY M. BROWN, Co-Administrators of the Estate of Paterson Brown, Jr., Deceased, Plaintiffs,
DAVID L. COBB, Individually and in his Official Capacity as a Police Officer for the City of Richmond, Virginia, and CITY OF RICHMOND, Defendants.
A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE
case arises from the fatal shooting of 18-year-old Paterson
Brown, Jr., by an off-duty Richmond police officer, David L.
Cobb. The administrators of Brown's estate, Paterson
Brown, Sr., and Kathy Brown,  filed this action against Cobb
and the City of Richmond (the "City"). On June 21,
2018, the Court granted the City's motion to dismiss the
original complaint, but gave the plaintiffs leave to amend
their § 1983 count for the City's failure to train
its police officers. On July 23, 2018, the plaintiffs filed
their amended failure to train claim. The City moved to
plaintiffs allege facts that could indicate that Cobb acted
under color of state law, and that the City did not
adequately train him on the use of force. The Court,
therefore, will deny the motion to dismiss. In short order,
however, the Court expects to have a closer look at the
curriculum the City uses to train police officers. This
closer look may well lead to an entirely different result.
FACTS ALLEGED IN THE AMENDED COMPLAINT
Court adopts the factual allegations set forth in its
previous Opinion. (Dk. No. 20.) In their amended complaint,
the plaintiffs add that Cobb's answer to the original
complaint acknowledged that "all of his relevant actions
in this matter comported and complied with the training he
received" from the Richmond Police Department (the
"RPD"). (Am. Compl. ¶ 45.) Additionally, the
plaintiffs allege specific deficiencies in the City's
police training involving the use of deadly force. These
include failing to properly train officers to (1) inquire
into the physical and mental condition of individuals who
display "visible and obvious signs of mental distress,
drug use, or other mental disturbance," (id.
¶ 47); (2) "exhaust all other reasonable
alternatives before using deadly force" such as
"professional presence/identification, verbalization,
soft control techniques, intermediate techniques, hard
control techniques, and/or less lethal force,"
(id. ¶ 48); (3) use a degree of force
proportional to the "threat presented,"
(id. ¶ 49); and (4) "properly communicate
with members of the public during a crisis situation,
" (id. ¶ 50).
relevant part, § 1983 provides,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State... subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress[.]
42 U.S.C. § 1983. To establish liability under §
1983, a plaintiff must demonstrate that the defendant acted
under color of law, violated the plaintiffs federal
constitutional or statutory rights, and caused injury.
Brown v. Mitchell, 308 F.Supp.2d 682, 692 (E.D. Va.
Under Color of Law
threshold matter, the plaintiffs must allege that Cobb acted
under color of law. "[U]nder 'color' of law
means under 'pretense' of law." Keller v.
District of Columbia, 809 F.Supp. 432, 435 (E.D. Va.
1993) (quoting Screws v. United States, 325 U.S. 91,
111 (1945)). Government officials act under color of law,
therefore, if they purport to act pursuant to their authority
as government officials, whether they "hew to the line
of their authority or overstep it." Revene v.
Charles Cty. Comm'rs, 882 F.2d 870, 873 (4th Cir.
1989). On the other hand, "[a]cts of police officers in
the ambit of their personal, private pursuits fall outside
of... § 1983." Id. at 872. "The color
of law requirement excludes from the reach of § 1983 all
'merely private conduct, no matter how discriminatory or
wrongful.'" Rossignol v. Voorhaar, 316 F.3d
516, 523 (4th Cir. 2003) (quoting Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 50 (1999)).
distinguishing between private actions and actions taken
under color of law, "the lack of the outward indicia
suggestive of state authority-such as being on duty, wearing
a uniform, or driving a patrol car-are not alone
determinative of whether a police officer is acting under
color of state law." Revene, 882 F.2d at 872.
Instead, "the nature of the act performed is
controlling." Id. To make this determination,
courts consider whether the defendant identified himself as a
police officer, whether he drew his firearm, and whether he
detained or arrested the plaintiff. Keller, 809
F.Supp. at 436; Drewitt v. Pratt, No. 2:92-cv-13,
1992 WL 516032, at *2 (E.D. Va. Oct. 9, 1992).
the plaintiffs allege that (1) Cobb "approached the
vehicle with his firearm drawn," (Am. Compl. ¶ 16);
(2) Cobb "identified himself to Mr. Brown as an officer
of the RPD and instructed Mr. Brown to exit the
vehicle," (id. ¶ 20); and (3) after
shooting Brown, Cobb removed Brown from the car and
"placed him face-down on the ground," (id.
¶ 37). See Keller, 809 F.Supp. at 436
(identifying these acts as consistent with acting under the
color of state law); Drewitt, 1992 WL 516032, at *2
(same). On the one hand, the allegations in the amended
complaint seem "consistent with a purely personal
pursuit, outside the scope of § 1983."
Revene, 882 F.2d at 873. An alternative reading,
however, indicates that Cobb purported to act pursuant to his
authority as a government official, "which of course
falls within § 1983." Id. at 873-74
(holding that a well-pleaded complaint survives a motion to
dismiss "even if the factual assertions are equally
consistent with a contrary conclusion").
these reasons, the plaintiffs have pled sufficient facts to
establish that ...