MONICA L. CROMARTIE
v.
BRIAN LEE BILLINGS
FROM
THE CIRCUIT COURT OF THE CITY OF PETERSBURG Joseph M. Teefey,
Jr., Judge
OPINION
DONALD
W. LEMONS CHIEF JUSTICE
In this
appeal, we consider whether the Circuit Court of the City of
Petersburg ("circuit court") erred when it granted
Brian Billings' ("Billings") motion to strike
the evidence of Monica Cromartie's
("Cromartie") claims against him for an unlawful
search based on Code § 19.2-59, for excessive force
under 42 U.S.C. § 1983 ("§ 1983"), and
for false arrest under § 1983.
I.
Facts and Proceedings
Cromartie
filed a complaint in the circuit court against Billings, a
former police officer, alleging two Fourth Amendment
violations under § 1983 for excessive force and false
arrest, a violation of Code § 19.2-59 for an illegal
search, and claims for assault, battery, false imprisonment,
and malicious prosecution. The matter proceeded to a day-long
jury trial.
The
evidence presented at trial demonstrated that on February 12,
2015, Billings initiated a traffic stop of Cromartie's
vehicle for speeding. Before Billings approached
Cromartie's car, she exited her vehicle, yelling to
Billings. Billings directed Cromartie to reenter her vehicle
and close the door. Cromartie followed this instruction. At
the time of this incident, Cromartie was a
fifty-four-year-old woman weighing about 100-pounds. She
suffered from a condition known as strabismus which causes a
misalignment of the eyes, and had also sustained knee
injuries, had a plate in her right ankle, was afflicted by
hearing issues, and had a rough speaking voice. According to
the summons for speeding written and issued by Billings,
Cromartie was four feet, nine inches tall.
After
stopping Cromartie, Billings "waited until [his] backup
arrived," then approached Cromartie's vehicle.
Billings' body camera video showed Cromartie in the
driver's seat talking on a cell phone.[1] Billings knocked
on Cromartie's window. Cromartie glanced at Billings
briefly and said, "What." After a pause, Billings
said, "I need you to roll down your window."
Cromartie made no movement to indicate that she heard
Billings as she talked loudly on the phone. Following another
pause, Billings said, "Ma'am," and knocked on
her window a second time. Cromartie continued talking on the
phone, turned momentarily towards Billings, and said,
"Hey officer, leave me alone."
Mere
seconds passed before Billings opened the driver's door,
grabbed Cromartie by the arm, pulled her from the vehicle,
and forced her face-down onto the pavement. During this
unexpected physical contact, Cromartie exclaimed, cursed, and
appeared to ask Billings to explain the violence. In his
deposition testimony, Billings claimed that he removed
Cromartie from the vehicle to arrest her for obstruction of
justice. [2] In his deposition testimony, Billings
admitted that he did not ask her to open the door or exit the
vehicle prior to using force. Billings could not recall
whether Cromartie made threats or attempted to flee.
Once
Billings forced Cromartie onto the pavement, he placed his
weight on Cromartie's back. The impact injured
Cromartie's forehead, teeth, lip, right eye, and right
knee. Billings secured Cromartie on the ground and, with the
help of the backup officer, handcuffed her. The officers then
brought Cromartie to her feet against the back of her own
vehicle. At that time, the backup officer finally told
Cromartie that she was under arrest, but without stating the
charge. Thereafter, the officers placed leg shackles on
Cromartie and seated her on the curb behind her vehicle.
Cromartie remained in the custody of the backup officer while
seated on the curb.
With
Cromartie secured on the sidewalk behind her vehicle,
Billings walked to the driver's side door of
Cromartie's vehicle, cursed, opened the door, retrieved
Cromartie's purse from the passenger seat, and began
searching the purse. In his deposition testimony, Billings
admitted that he did not ask Cromartie for "any type of
ID" and he did not "ask her for permission to go
look for her ID." As he was searching Cromartie's
purse, Billings said, "Well, right now she is under
arrest for . . .," and trailed off, not completing his
sentence. Billings continued to search the purse, removing
lingerie and opening a case containing an e-cigarette vaping
device. He asked Cromartie if the e-cigarette had
"marijuana residue in it," to which she replied,
"It doesn't matter-it's my electronic
cigarette." When Cromartie asked why Billings was going
through her belongings, Billings responded, "It's
because you're under arrest, and I'm looking for some
sort of identification for you, ma'am." After an
emergency medical technician ("EMT") arrived on
scene and asked where Cromartie's identification was,
Cromartie replied, "It should be in the cigarette
ashtray." The EMT also asked Cromartie for her name and
how to spell it, and she promptly provided this information.
Prior to the EMT's question, neither Billings nor the
backup officer asked Cromartie for her identification.
Despite
Cromartie stating that her identification was in the car
ashtray, Billings nevertheless continued searching her purse.
Even after finding Cromartie's social security card in
her purse and radioing dispatch for confirmation of her
identity, Billings continued to search Cromartie's
belongings. He eventually found a small metal container in
the purse, which he told another officer "look[ed]
like" it contained "marijuana" or
"cocaine residue." He then placed her purse in his
vehicle and returned to the driver's side of
Cromartie's car to search the car once more.
After
Cromartie's arrest, Cromartie, Billings, and the backup
officer proceeded to the magistrate's office, where
Billings obtained arrest warrants for simple possession of
marijuana and obstruction of justice. Billings testified
under oath to the magistrate that he "opened the car
door, instructed her to get out," and had told her to
"open the car door or roll down the window." He
also stated to the magistrate that Cromartie struggled with
him and that he had told Cromartie she was under arrest prior
to this struggle. By contrast, Cromartie told the magistrate
that Billings did not order her out of the car before he
pulled her out of it. The magistrate credited Billings'
account of the incident and found probable cause to issue the
warrants.
During
the subsequent criminal trial, Cromartie moved to suppress
all evidence Billings uncovered during the search of her car
and purse. The Commonwealth did not oppose the motion.
Accordingly, the court dismissed the possession and
obstruction of justice charges against Cromartie, thereby
ending the criminal proceedings on these charges. Thereafter,
Cromartie was found guilty only of speeding.
At the
close of Cromartie's case-in-chief in this civil action,
the circuit court granted Billings' motion to strike the
§ 1983 and Code § 19.2-59 claims on the grounds of
qualified immunity and sovereign immunity, respectively. The
circuit court denied Billings' motions to strike the
assault, battery, false imprisonment, and malicious
prosecution claims. Billings then presented his own evidence
and Cromartie offered no rebuttal evidence. Billings renewed
his motion to strike the remaining claims, but the circuit
court denied this motion. Cromartie and Billings then
tendered and argued their proposed jury instructions to the
court. As pertinent to this appeal, the following
instructions were given to the jury, incorporating the
Circuit Court's rulings on the parties' arguments
concerning their proposed instructions:
Jury Instruction 11
False imprisonment is an intentional restriction of a
person's freedom of movement without legal right. A false
imprisonment results from the intentional use of force,
words, or acts which the person restrained is afraid to
ignore or to which she reasonably believes she must submit.
Jury Instruction 14
A person has the right to use reasonable force to resist an
unlawful arrest. The use of that force is not an assault [or]
battery. Any force used in resisting a lawful arrest is an
assault and battery.
Jury Instruction 16
A lawful arrest is a restraint of another's movement with
the legal right to do so. An arrest by a law enforcement
officer for a criminal offense committed in his presence is a
lawful arrest. An arrest by a law enforcement officer who had
probable cause to believe that the individual he arrested was
committing a misdemeanor in his presence is a lawful arrest
even if it is later discovered that the officer was mistaken.
Jury Instruction 21
For purposes of the malicious prosecution claim, malice
exists when the controlling motive for instituting criminal
proceedings is any reason except a genuine desire to see
justice done, to enforce the law, or the punish the guilty.
Malice may be inferred from a lack of probable cause.
Jury Instruction 23
You shall find your verdict for Ms. Cromartie and against
Officer Billings if Ms. Cromartie has proved by the greater
weight of the evidence that:
(1)Officer Billings instituted the obstruction of justice
charge against Ms. Cromartie; and
(2)that the criminal proceeding ended in a manner not
unfavorable to Ms. Cromartie; and
(3)the criminal proceeding was instituted by Officer
Billings without probable ...