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Stroke Victim Can Sue for Excessive Force

Deborah Elkins//July 11, 2016

Stroke Victim Can Sue for Excessive Force

Deborah Elkins//July 11, 2016

A Richmond U.S. District Court says a plaintiff may sue defendant police officers for excessive force for their alleged use of a Taser and pepper spray and forcible removal of plaintiff from his vehicle after an auto­mobile accident, allowing his vehicle to roll back over his foot and ankle as plaintiff lay handcuffed in the roadway, after failing to recognize that plaintiff had suffered a stroke while operating his vehicle.

Defendant officers said they had proba­ble cause to detain plaintiff for hit and run, as he proceeded a short distance down the roadway prior to his stop.

There is no indication from the face of the complaint that a reasonably trained police officer, unskilled in the science of medicine, could have immediately concluded that plaintiff’s medical condition was the appar­ent cause of the accident. Any suggestion to the contrary in the complaint is a mere con­clusion as it cites no symptoms obvious to a lay person. Defendant officers are entitled to qualified immunity on his count I claim for violation of his Fourth Amendment rights.

At this stage, plaintiff has clearly pled an actionable § 1983 excessive force claim. The amended complaint reveals a hit-and-run accident with minor damage. It is devoid of any indication of prolonged reckless flight or active physical resistance. Of course, at this stage, the court has not heard defendant of­ficers’ side of the story.

Failure to train

Count VI, alleging failures to train by the city, is scant on facts, but sufficient to survive Rule 12(b)(6) review. It specifically alleges the city failed to adequately train its officers to handle the usual and recurring situations with which they must regularly and routine­ly deal with including medical emergencies and officers’ use of force during an arrest. It recites that the city was deliberately in­different to the obvious consequences of its failure to train its officers adequately.

The allegations supporting count VII, al­leging unconstitutional custom or policy, are more than sufficient to plead a plausible § 1983 claim. Plaintiff delineates a number of allegedly unconstitutional customs, prac­tices and policies. These include employing and retaining officers with dangerous pro­pensities for abuse of authority and use of excessive force; inadequately supervising, training and disciplining such officers; main­taining grossly inadequate procedures for reporting, investigating and reviewing alle­gations of misconduct; failing to adequately discipline officers for proven misconduct; an­nouncing that unjustified shootings, use of Taser and pepper spray are within the city police department policy and encouraging or facilitating a code of silence among law en­forcement officers.

From the narrow permissible perspective of the amended complaint, the allegations of excessive force in count III, which are assimilated into counts IX and I, would be sufficient to allow the trier of fact to consid­er punitive damages. The same reasoning applies to the state common law claims. To warrant punitive damages under Virginia law, the behavior must be willful and wan­ton. However, federal law bars the recovery of punitive damages from municipalities in § 1983 cases, precluding such damages on counts VI and VII.

Washington v. Jurgens (Hudson) No. 3:16cv184, July 1, 2016; USDC at Richmond, Va.; Richard M. Reed for plaintiff; Julia B. Judkins for defendant. VLW 016-3-304, 22 pp.


VLW 016-3-304

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