Virginia Lawyers Weekly VA Lawyers Weekly
A teenage girl’s claim that the City of Lynchburg was liable for injuries caused by the excessive force of its police officers has survived dismissal.
The plaintiff alleged a theory of “municipal ratification” pursuant to 42 U.S.C. § 1983. The city argued that it was impossible for a policy determination made after the fact to have been the motivating force for its officers’ alleged constitutional violations.
But Judge Norman K. Moon of the Western District of Virginia concluded that “[n]otwithstanding Defendants’ cited authority from this Court that had previously supported this argument, more recent published authority from the Fourth Circuit issued after the filing of the parties’ briefing undercuts the argument.”
However, the judge dismissed plaintiff’s emotional distress claims, as well as her negligent supervision claim, which Virginia doesn’t recognize.
The May 31 opinion is Hicks v. City of Lynchburg, et al. (VLW 022-3-232).
Mall incident
One evening in March 2020, 14-year-old Aniya Nicole Hicks went to the River Ridge Mall in Lynchburg. Several off-duty Lynchburg police officers were working in the mall that night.
One of the officers believed that some young people at the mall were “displaying animosity” towards each other, so he summoned roughly 20 on-duty police officers.
While some of the officers were detaining a juvenile, Hicks alleged that others were aggressively pushing other juveniles standing nearby.
Hicks said she didn’t interfere in any way, but expressed concern to the officers about their treatment of the detained juvenile. In response, one of the officers allegedly yelled at her to get back and shoved her.
The plaintiff filed a nine-count complaint against the city and three police officers for various torts, including negligent and intentional infliction of emotional distress, negligent training and supervision and claimed municipal ratification.
When Hicks attempted to stand her ground, she claimed the officer swung her around by her arm and tripped her so that she violently hit the floor.
As she tried to get up, she claimed the officer flipped her on her stomach and another officer smashed her face on the floor, causing a substantial gash above her right eye.
According to Hicks, the officers handcuffed her and dragged her 30 feet to a wall, where she was not offered medical attention.
She ultimately received 14 stitches over her eye and alleges she suffered from other physical and psychological injuries.
Municipal ratification
Hicks filed a nine-count complaint against the city and three police officers for various torts, including negligent and intentional infliction of emotional distress, negligent training and supervision and claimed municipal ratification.
The plaintiff argued that the city was liable under a municipal ratification theory pursuant to § 1983 because “the City knew of and specifically approved of the individual defendants’ acts [and] has determined (or will determine) that the acts of the individual defendants were ‘within policy.’”
The city contended the claim fails “because ‘it is impossible for the City’s alleged determination — made after the alleged excessive force — to have caused the excessive force,’ and thus the ratification ‘could not have been the moving force behind the defendants’ alleged constitutional violations if the City’s actions followed the Police Officer Defendants’ actions.’”
But Moon rejected that argument.
He said a decision from the 4th U.S. Circuit Court of Appeals that was published after the parties filed their briefs undercut the city’s position.
In Starbuck v. Williamsburg James City Co. Sch. Bd., the Fourth Circuit held that a municipal ratification claim need not allege a policymaking body had knowledge of or involvement in the alleged constitutional violation from the outset to find that its later approval was a moving force.
“[A] ratification theory of liability ‘presupposes that the initial complained-of conduct precedes involvement by the final policymaking authority,” Moon said.
Hicks’ other claims did not survive dismissal. At oral argument she conceded that her emotional distress claims against the city were barred by sovereign immunity; Moon noted that Virginia doesn’t recognize a negligent supervision claim.
Further, finding Hicks’ emotional distress claims against the individual officers “inapplicable to the conduct alleged, which is in the nature of assault and battery or excessive force,” the judge dismissed those claims because Hicks “did not plead injury and distress from a non-tactile tort.”
Attorney comments
Carlos A. Hutcherson and Steven McFadgen, both solo practitioners in Lynchburg, jointly represented Hicks.
Hutcherson said it’s difficult to obtain justice in excessive force cases, but their client’s victory shows the “law is finally catching up.”
With discovery beginning soon, the attorneys hope evidence will establish the city’s systemic ratification of conduct like what Hicks experienced. They point to officer body camera footage they claim supports Hicks’ allegations.
“The facts of this case make it so apparent that the officers should not benefit from sovereign immunity,” said Hutcherson.
