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Brown v. Cobb

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

December 3, 2018

PATERSON BROWN, SR. and KATHY M. BROWN, Co-Administrators of the Estate of Paterson Brown, Jr., Deceased, Plaintiffs,
v.
DAVID L. COBB, Individually and in his Official Capacity as a Police Officer for the City of Richmond, Virginia, and CITY OF RICHMOND, Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE

         This 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, [1] 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.[2] On July 23, 2018, the plaintiffs filed their amended failure to train claim. The City moved to dismiss.

         The 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.

         I. FACTS ALLEGED IN THE AMENDED COMPLAINT

         The 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, "[3] (id. ¶ 50).

         II. DISCUSSION [4]

         In 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. 2004).

         A. Under Color of Law

         As a 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)).

         In 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).

         Here, 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").

         For these reasons, the plaintiffs have pled sufficient facts to establish that ...


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