Officer sued for excessive force after striking plaintiff

Where a Chesterfield county police officer executed a closed-handed strike to a driver’s face during a traffic stop, the driver’s excessive force claim survived the motion to dismiss as the crime was a misdemeanor, the driver posed no immediate threat and body camera footage showed he did not resist or attempt to evade arrest.

Background

Kenneth Wilson brings this action pursuant to 42 U.S.C. § 1983 against Gordon J. Painter and Colonel Jeffrey S. Katz, alleging that defendants violated his constitutional rights by falsely arresting him and using excessive force during a traffic stop on March 29, 2019. Plaintiff also brings claims under state law for assault, battery, false imprisonment, unlawful search and malicious prosecution. Defendants have filed motions to dismiss.

Katz

Regarding the official capacity claim against Katz, plaintiff has not set forth allegations showing a causal connection between the alleged unconstitutional policy or custom–i.e., the use of a close-handed strike as a distraction technique–and the constitutional injury that he sustained. For instance, plaintiff has not alleged facts showing that the Chesterfield county police department implemented a manifestly unconstitutional policy of employing excessive force whenever this specific factual context arose.

Instead, plaintiff merely alleges that Painter “stated that the force he used during the incident was taught to him by the Chesterfield Police Department under the command of Col. Katz.” But Painter’s testimony that his general training included instruction on the use of a close-handed strike does not establish the necessary causal link between that training and Painter’s decision to use force under the facts presented by this case.

Plaintiff also asserts individual capacity claims against Katz. However the amended complaint does not contain any factual allegations that plausibly allege a supervisory liability claim. Specifically, plaintiff does not allege facts showing that: Painter engaged in conduct posing a pervasive and unreasonable risk to citizens like plaintiff; Katz had actual or constructive knowledge of that conduct; Katz responded with deliberate indifference in the face of that knowledge or that an affirmative causal link existed between Katz’s inaction and the particular injury that plaintiff suffered.

Turning to the state law claims, Katz argues they fail insofar as they assert official capacity claims because Chesterfield County enjoys immunity from tort liability. Moreover, Katz maintains that to the extent that the state law claims assert individual capacity claims, such claims fail because Katz did not actually participate in the alleged tortious conduct. The court agrees.

Painter

Plaintiff asserts claims for false arrest, false imprisonment, unlawful search and malicious prosecution. Painter argues that, because he detected the odor of marijuana upon approaching plaintiff’s vehicle, probable cause justified the search and arrest at issue here. The court agrees. Because Painter had probable cause to arrest plaintiff and search the vehicle, the court hereby grants Painter’s motion to the extent that it seeks dismissal of these counts.

That leaves the claims for excessive force, assault and battery. The court must first determine whether plaintiff plausibly alleges that Painter committed a constitutional violation by effectuating an arrest through the use of excessive force. After evaluating (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the officers or others and (3) whether the suspect actively resisted arrest or attempted to evade arrest by flight, the court finds that plaintiff has plausibly alleged that Painter used excessive force during the March 2019 traffic stop.

Having determined that plaintiff plausibly alleges that Painter used excessive force, the court must now determine whether a reasonable officer would understand that striking a suspect in the face with a closed fist constitutes excessive force under the facts presented here. On this question, Painter maintains that “existing controlling precedent and case law from district courts in the Fourth Circuit would have given Officer Painter reason to believe he was fully justified in using that amount of force to remove Plaintiff from the vehicle.” The court disagrees.

Finally, as Painter acknowledges, “Virginia common law claims that arise from the officer’s use of force, such as assault and battery, are ‘subsumed within the federal excessive force claim.’” As such, the court denies Painter’s motion to the extent it seeks dismissal of the counts for assault and battery.

Katz’s motion to dismiss granted. Painter’s motion to dismiss granted in part, denied in part.

Wilson v. Painter, Case No. 3:20-cv-645, Dec. 21, 2020. EDVA at Richmond (Novak). VLW 020-3-649. 29 pp.