Cromartie v. 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 ...