Filed: Feb. 18, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1172 LAWRENCE W. TRULL, Plaintiff - Appellant, v. FRANCIS D. SMOLKA; BRIAN W. TANNER; COUNTY OF HENRICO, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:08-cv-00460-HEH) Argued: December 8, 2010 Decided: February 18, 2011 Before WILKINSON and NIEMEYER, Circuit Judges, and Patrick Michael DUFFY, Senior United States Di
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1172 LAWRENCE W. TRULL, Plaintiff - Appellant, v. FRANCIS D. SMOLKA; BRIAN W. TANNER; COUNTY OF HENRICO, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:08-cv-00460-HEH) Argued: December 8, 2010 Decided: February 18, 2011 Before WILKINSON and NIEMEYER, Circuit Judges, and Patrick Michael DUFFY, Senior United States Dis..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1172
LAWRENCE W. TRULL,
Plaintiff - Appellant,
v.
FRANCIS D. SMOLKA; BRIAN W. TANNER; COUNTY OF HENRICO,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cv-00460-HEH)
Argued: December 8, 2010 Decided: February 18, 2011
Before WILKINSON and NIEMEYER, Circuit Judges, and Patrick
Michael DUFFY, Senior United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS & ASSOCIATES, PC,
Richmond, Virginia, for Appellant. Benjamin Adelbert Thorp, IV,
OFFICE OF THE COUNTY ATTORNEY, Henrico, Virginia, for Appellees.
ON BRIEF: Joseph P. Rapisarda, Jr., Karen M. Adams, OFFICE OF
THE COUNTY ATTORNEY, Henrico, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
I.
On May 9, 2008, Lawrence W. Trull (“Trull” or “Appellant”)
filed a Complaint in the Circuit Court for the County of
Henrico, Virginia asserting federal and state causes of action
arising out of events that took place when Officer Francis D.
Smolka and Officer Brian W. Tanner (“Smolka” and “Tanner” or
collectively “the officers”) responded to a 911 call regarding a
domestic dispute between him and his wife, Ms. Mary Picchi
(“Picchi”). Defendants Smolka, Tanner, and County of Henrico
(collectively “Appellees”) removed the case to federal court
based on the federal claims asserted by Trull. On September 18,
2008 the district court granted Appellees motion to dismiss as
to three causes of action that related to the entry into the
bathroom where they found Trull. On January 14, 2009, the
district court granted Appellees motion for summary judgment as
to the remaining claims and dismissed the suit. Appellant has
appealed. We possess jurisdiction to hear this appeal pursuant
to 28 U.S.C. § 1291. As explained below, we affirm.
II.
On May 13, 2006, Officers Smolka and Tanner of the County
of Henrico police department responded to a 911 call reporting a
domestic dispute at 5403 Riverdale Drive in the County of
2
Henrico (“the residence”). The call was placed from that
residence by Picchi. At the time of the incident, Trull and
Picchi were married and lived at the residence together.
Prior to arriving at the residence, the officers understood that
the caller alleged that her husband had threatened to have her
removed from the home.
When the officers arrived, Picchi invited them in and
explained that Trull had contacted his daughter to have Picchi
removed from the house. There were no signs that the
altercation between Picchi and Trull had been physical.
Additionally, she informed the officers that an antique firearm
may have been in the house, but she was not sure of its
location. Pursuant to Picchi’s consent, the officers conducted
a brief exploration of a back bedroom. However, they were
unable to locate the firearm.
Trull is disabled; he is in a wheelchair. When the officers
arrived at the residence, he was inside the main hallway
bathroom. The door was closed and locked. The officers ordered
Trull to come out of the bathroom. He stated a general
unwillingness to exit the bathroom and explained that he was in
a wheelchair. When he did not comply with the officers’ request
to exit the bathroom, they used force to enter. The amount of
force was such that the door was not damaged.
3
Trull alleged in his Complaint that when the officers
opened the door he was knocked “violently across the bathroom.”
He maintains that he was so frightened that he urinated on
himself, had severe anxiety, had chest pains, and suffered
emotional injury. Once the door was opened, he exited the
bathroom pursuant to the officers’ directions.
After exiting the bathroom, Trull proceeded into the
kitchen. Tanner told Trull that Picchi had a right to stay in
the residence and suggested that he could stay with his family
members living in the area. Trull responded that he could not,
because his daughter’s home was not wheelchair accessible.
At some point, the officers became aware that Trull was
experiencing worrisome medical symptoms including chest
tightness. In response, they radioed for EMS assistance. EMS
arrived shortly after the call. Trull’s daughter and her
boyfriend arrived around the same time as the EMS and went to
his side. While EMS was assessing Trull’s condition, his
daughter and her boyfriend were asked to step away, but they
continued to speak with him during this time.
Trull initially told them that he did not want to go to the
hospital. The officers were clear that they thought he should
go to the hospital. For example, Smolka told one of the EMTs
that he thought Trull should go to the hospital. Additionally,
Trull’s daughter encouraged the EMTs to take her father to the
4
hospital. He was never handcuffed, he did not attempt to leave
the kitchen until the EMTs placed him on a stretcher, and he did
not resist when EMTs offered to physically help him out of the
wheelchair.
The officers did not tell Trull that he was required to go
to the hospital, threaten him with arrest if he did not go, or
make any other showing of force to persuade him to go. They did
not assist Trull out of the wheelchair, help him into the
ambulance, or accompany him to the hospital. Approximately 30
minutes after he exited the bathroom, Trull departed from the
residence and traveled to St. Mary’s Hospital in the ambulance.
III.
A.
Appellant appeals from the district court’s order
dismissing numerous claims pursuant to Fed. R. Civ. P. 12(b)(6).
We review a district court’s dismissal of claims under Fed. R.
Civ. P. 12(b)(6) de novo. Andrew v. Clark, 561 F.3d 261, 264
(4th Cir. 2009). A motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6) tests the sufficiency of the complaint and therefore
we accept as true the facts alleged in the complaint and
determine whether they support a plausible claim for relief.
See Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009); Bell Atl. Corp.
v. Twombly,
550 U.S. 544 (2007). Legal conclusions without
5
facts making them plausible are insufficient to survive a motion
to dismiss. See id.
B.
We first address Appellant’s argument that the district
court erred in holding that Trull failed to state a claim that
the entry into the bathroom violated the Constitution. We find
that in this case, the officers’ actions were justified by the
exigent circumstances.
The exigent circumstances exception to the warrant
requirement “basically encompasses officer safety and the
destruction of easily-disposed evidence.” Figg v. Schroeder, 312
F.3d 625, 639 (4th Cir. 2002) (quoting Gould v. Davis,
165 F.3d
265, 270-71 (4th Cir. 1998)). The exception is triggered when
officers have a “reasonable suspicion” that such circumstances
exist at the time of the search or seizure in question.
Id.
(citing United States v. Grogins,
163 F.3d 795, 797 (4th Cir.
1998)). Generally, reasonable judgments of the officers on
scene are not second guessed by the courts.
Id. (citing United
States v. Montoya de Hernandez,
473 U.S. 531, 542 (1985)).
However, “the burden is on the government to demonstrate exigent
circumstances that overcome the presumption of unreasonableness
that attaches to all warrantless home entries.” Welsh v.
Wisconsin,
466 U.S. 740, 749 (1984).
6
With that framework in mind, the issue is whether the
officers’ entry into the bathroom can be justified based on
exigent circumstances. Specifically, whether based upon the
facts known to the officers at the time they entered the
bathroom, the entry was justified by a concern for safety.
The officers were at the residence responding to a domestic
situation, Trull refused to exit the bathroom to talk with them,
and they were under the impression that there may have been a
gun somewhere in the residence. The officers were justified in
concluding that a person involved in a marital spat, who was
refusing to speak with officers, could be a threat to them while
they were in the home discussing the dispute with his wife.
Under these circumstances, the officers were also correct in
concluding Trull could be a threat to himself. Therefore, the
entry into the bathroom was justified by the exigent
circumstances.
Appellant argues that Georgia v. Randolph, 547 U.S. 103
(2006), requires a holding that the officers violated Trull’s
Fourth Amendment rights by entering the bathroom when he
objected. He argues that Picchi’s consent to the entry into the
house and bathroom did not trump Trull’s refusal of consent. We
disagree with that reading of Randolph, because here the
officers were investigating a domestic situation rather than
conducting a search for evidence of a crime.
7
In Randolph, Janet Randolph called the police to report a
domestic situation Id. at 107. She complained to police about
her husband’s drug use, claimed that it created financial issues
which impacted their marriage, and consented to a search of the
marital residence.
Id. Her husband was at the scene, refused
consent, and objected to the search.
Id. The officers searched
and found evidence they sought to use against Randolph in a
criminal prosecution.
Id. The Court held that the evidence
should be suppressed, because the search violated his Fourth
Amendment right to be free from unreasonable search and seizure.
Id. at 114 (“Since the co-tenant wishing to open the door to a
third party has no recognized authority in law or social
practice to prevail over a present and objecting co-tenant, his
disputed invitation, without more, gives a police officer no
better claim to reasonableness in entering than the officer
would have in the absence of any consent at all”).
The Court noted that a search for evidence based on consent
to search a dwelling was different than law enforcement’s need
to enter a home for purposes of investigating a domestic
situation. Randolph, 547 U.S. at 118. Specifically, the court
stated the distinction as follows:
But this case has no bearing on the capacity of the
police to protect domestic victims. The dissent's
argument rests on the failure to distinguish two
different issues: when the police may enter without
committing a trespass, and when the police may enter
8
to search for evidence. No question has been raised,
or reasonably could be, about the authority of the
police to enter a dwelling to protect a resident from
domestic violence; so long as they have good reason to
believe such a threat exists, it would be silly to
suggest that the police would commit a tort by
entering, say, to give a complaining tenant the
opportunity to collect belongings and get out safely,
or to determine whether violence (or threat of
violence) has just occurred or is about to (or soon
will) occur, however much a spouse or other co-tenant
objected. . . .
Id. at 118.
In this case, the situation contemplated in Randolph
occurred. The police arrived at the residence based on a report
of a domestic disturbance. There was no outward evidence that
there was any violence, but a definite determination could not
be made without talking to both parties. The facts of this case
fall outside the holding in Randolph, but are within the
situation contemplated in the above quoted portion of that
opinion.
Additionally, the need for the officers to enter the
bathroom to interview Trull is supported by Virginia law.
Virginia Code section 19.2-81.3 provides the framework that
officers are required to follow when dealing with a domestic
situation. The statute does not speak in terms of creating
duties, but does provide specific actions that officers should
follow, especially relevant are sections B and C. They provide
as follows:
9
B. A law-enforcement officer having probable cause to
believe that [an assault and battery or violation of a
protective order] has occurred shall arrest and take
into custody the person he has probable cause to
believe, based on the totality of the circumstances,
was the predominant physical aggressor unless there
are special circumstances which would dictate a course
of action other than an arrest. The standards for
determining who is the predominant physical aggressor
shall be based on the following considerations: (i)
who was the first aggressor, (ii) the protection of
the health and safety of family and household members,
(iii) prior complaints of family abuse by the
allegedly abusing person involving the family or
household members, (iv) the relative severity of the
injuries inflicted on persons involved in the
incident, (v) whether any injuries were inflicted in
self-defense, (vi) witness statements, and (vii) other
observations.
C. Regardless of whether an arrest is made, the
officer shall file a written report with his
department, which shall state whether any arrests were
made, and if so, the number of arrests, specifically
including any incident in which he has probable cause
to believe family abuse has occurred, and, where
required, including a complete statement in writing
that there are special circumstances that would
dictate a course of action other than an arrest. The
officer shall provide the allegedly abused person,
both orally and in writing, information regarding the
legal and community resources available to the
allegedly abused person. Upon request of the allegedly
abused person, the department shall make a summary of
the report available to the allegedly abused person.
Va. Code § 19.2-81.3.
The record does not show the officers had evidence of any
violence at the scene. However, courts have recognized that
domestic situations can escalate quickly: “[d]omestic
disturbances have a low flash point, and ‘violence may be
lurking and explode with little warning.’” McCracken v.
10
Commonwealth, 572 S.E.2d 493, 496 (Va. Ct. App. 2002) (quoting
Fletcher v. Town of Clinton,
196 F.3d 41, 50 (1st Cir. 1999)).
In McCracken, a case with facts vastly different than these, the
court noted that Virginia Code section 19.2-81.3 created officer
duties.
Id. at n. 4 (“In recognition of the difficulty of
protecting against domestic violence, the General Assembly
increased the duties of law-enforcement officers when responding
to such incidents,” by enacting section 19.2-81.3).
Therefore, as the officers’ entry into the bathroom was
justified by the exigent circumstances, Randolph is
distinguishable, and Virginia statutory law further supports the
officers’ actions, we find that the officers did not violate
Trull’s constitutional rights by entering the bathroom.
C.
Next, Trull argues that the district court erred in
dismissing his claim that the officers violated his Fourth
Amendment rights by using excessive force when they entered the
bathroom. The Complaint alleged that the door hit his
wheelchair “knocking Trull and his wheelchair violently across
the bathroom and causing Trull so much shock and fright that he
urinated upon himself and causing him to experience high blood
pressure, shortness of breath and tightness in his chest.”
Complaint ¶ 14, in Joint Appendix at 10.
11
In Sigman v. Town of Chapel Hill, this court affirmed a
grant of summary judgment in favor of an officer who was sued
for fatally wounding the plaintiff. 161 F.3d 782, 784 (4th Cir.
1998). The evidence presented as part of the motion for summary
judgment was not totally clear as to whether the decedent was
holding a knife.
Id. at 787. The court rejected the assertion
that difference in the witness testimony created a material
issue of fact, because the focus is on what the officer
reasonably perceived and whether his action was reasonable in
light of those circumstances.
Id. (“What matters is . . .
whether they undertook an objectively reasonable investigation
with respect to that information in light of the exigent
circumstances they faced,” quoting Gooden v. Howard County,
954
F.2d 960, 965 (4th Cir. 1992) (en banc) (emphasis added by the
court)). The record is clear that Trull was shaken up by the
events. In fact, the officers thought he should go to the
hospital. However, given the circumstances, it was appropriate
to force the door open to determine whether Trull was armed or
dangerous. The force used was enough to startle Trull, but was
mild enough that the door was not damaged in any way.
Therefore, based on the information known to the officers
and in light of the exigent circumstances, they undertook an
objectively reasonable course of action.
12
D.
In addition to the district court’s holding as to the
constitutional claims, Trull also appeals the dismissal of his
state law claim for trespass. We find that the district court
properly dismissed that claim.
Trespass is the “unauthorized entry onto property that
results in interference with the property owner’s interest.”
Cooper v. Horn, 448 S.E.2d 403, 406 (Va. 1994). Therefore, if
the entry on the property was authorized by law, then the claim
for trespass cannot be successful. As discussed above, the
officers lawfully entered the house and lawfully entered the
bathroom.
E.
In addition to the claims against the officers, Appellant
maintains that the County of Henrico is liable for its failure
to train the police officers correctly. The district court
dismissed Appellant’s claim seeking a declaratory judgment that
the officers violated Trull’s rights under the Virginia
Constitution. On appeal Appellant argues that the county is
liable for a failure to train the officers. However, as the
officers’ conduct did not violate any of Trull’s constitutional
rights, his claim cannot be successfully maintained.
In City of Canton, Ohio v. Harris, the Court held that
under certain limited circumstances, a municipality could be
13
held liable for a failure to train police. 489 U.S. 378, 388
(1989) (stating that “the inadequacy of police training may
serve as the basis for § 1983 liability only where the failure
to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact”). However,
there must be a link between the inadequacy of the training and
the deprivation of a constitutional right, because the “first
inquiry in any case alleging municipal liability under § 1983 is
the question whether there is a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation.”
Id. at 385. Having determined that there was no
deprivation of a constitutional right, this claim fails.
IV.
A.
Appellant also appeals from the district court’s order
granting summary judgment in favor of the Appellees. We review
a district court’s grant of summary judgment de novo. See PCS
Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 217 (4th Cir.
2009) (stating that “[w]e review the district court's rulings on
summary judgment de novo”).
In reviewing a district court’s grant of summary judgment
de novo, we draw all reasonable inferences in favor of the
appellant. See Doe v. Kidd, 501 F.3d 348, 353 (4th Cir. 2007),
14
cert. denied 552 U.S. 1243 (2008) (“We review the district
court's summary judgment ruling de novo, viewing the facts in
the light most favorable to Doe as the non-moving party and
drawing all reasonable inferences in her favor”) (internal
citation omitted).
Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2)(2009). The moving party bears the
burden of showing that there is no genuine issue of material
fact and that he is entitled to judgment as a matter of law.
Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986);
Charbonnages de France v. Smith,
597 F.2d 406, 414 (4th Cir.
1979). In Charbonnages, the court stated the standard as
follows:
the nonmoving party would on trial carry the burden of
proof, he is therefore entitled . . . to have the
credibility of his evidence as forecast assumed, his
version of all that is in dispute accepted, all
internal conflicts in it resolved favorably to him,
the most favorable of possible alternative inferences
from it drawn in his behalf; and finally, to be given
the benefit of all favorable legal theories invoked by
the evidence so considered.
Charbonnages, 597 F.2d at 414.
15
B.
Trull argues that the district court erred in granting
summary judgment as to his claim that the officers violated his
constitutional rights by having him come into the kitchen to
continue the investigation, and also by their actions relating
to the decision that he would go to the hospital. He claims
summary judgment was inappropriate because genuine issues of
material fact existed as to whether the officers’ actions
resulted in an unconstitutional seizure.
In United States v. Mendenhall, the Supreme Court explained
that a person is “seized” only when, by means of physical force
or show of authority, his freedom of movement is restrained. 446
U.S. 544, 553 (1980). Only when such restraint is imposed is
there any foundation for invoking constitutional safeguards.
Id.
The purpose of the Fourth Amendment is not to eliminate all
contact between the police and the citizenry, but “to prevent
arbitrary and oppressive interference by enforcement officials
with the privacy and personal security of individuals.”
Id. at
554 (quoting United States v. Martinez-Fuerte,
428 U.S. 543, 554
(1976)). “As long as the person to whom questions are put
remains free to disregard the questions and walk away, there has
been no intrusion upon that person's liberty or privacy as would
under the Constitution require some particularized and objective
justification.”
Id.
16
Appellees admit that a seizure occurred when the officers
ordered Trull out of the bathroom and briefly detained him in
the kitchen. However, the seizure was not unreasonable so it
did not violate the Fourth Amendment’s protection from
unreasonable seizure. The officers were investigating a
domestic situation and still searching for a gun. This brief
seizure amounted to little more than initial questioning of the
subject of a 911 call. Additionally, the seizure was justified
by the exigent circumstances: the officers were in the middle of
an investigation, Trull had been uncooperative, and they had not
yet located the firearm. As such, the exigent circumstances
justified this brief seizure. See
Figg, 312 F.3d at 639. Thus,
we affirm because the brief seizure was reasonable.
Additionally, the district court correctly held that the
seizure did not continue when Trull went to the hospital. The
seizure ended when the questioning was completed and Trull was
free to leave. The officers never told Trull that he had to go
to the hospital. The EMS assisted him onto the stretcher. In
fact, the record is devoid of any evidence tending to show that
the officers forced Trull to go to the hospital by physical
force or a showing of force. Therefore, the seizure did not
continue in the ambulance, because a person is “seized” only
when, by means of physical force or show of authority, his
freedom of movement is restrained. Mendenhall, 446 U.S. at 553.
17
C.
We also affirm the district court’s order granting summary
judgment as to the claims for assault and battery and false
imprisonment. The assault and battery claim was properly
disposed of at summary judgment, because the court correctly
decided that the seizure was reasonable and did not violate the
Fourth Amendment. The same is true of the claim for false
imprisonment. See Dechene v. Smallwood, 311 S.E.2d 749, 752
(Va. 1984) (stating that a lawful arrest by police cannot form
the basis for assault and battery or false imprisonment claim).
Therefore, we affirm summary judgment as to these state law
claims.
V.
For the reasons above, we affirm the district court’s
orders. Because we find that no constitutional violation
occurred, we need not address qualified immunity.
AFFIRMED
18
