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Officers lacked probable cause to arrest man

Although a man being served with an emergency protective order refused to provide his driver’s license or other personal descriptors to the police, the police lacked probable cause to arrest him for obstruction of justice. While the officers could ask for this information, the man was under no obligation to provide it.


Tony McKenna, the pro se plaintiff, asserts various claims under 42 U.S.C. § 1983 arising out of an interaction with three police officers seeking to serve an emergency protective order leading to his warrantless arrest. The defendants have moved for summary judgment.

Unlawful entry

Count Four against Officer Thomas alleges the unlawful entry of McKenna’s apartment in violation of the Fourth Amendment. It is undisputed that McKenna was not outside of his apartment when the officers returned to attempt service for the second time. Rather, he came to the door in response to Thomas’s knock. After cracking the door slightly open, McKenna observed Thomas but told him to return with a warrant. He then attempted to close the door.

However, Thomas blocked the door from closing with his foot and shoulder and stepped across the threshold of the doorway into the apartment. He then grabbed McKenna by the hands and pulled him into the hallway. This was a clear violation of McKenna’s Fourth Amendment rights. And because the law on this point was clearly established well before the alleged violation in this case, Thomas is not entitled to qualified immunity.

Excessive force

McKenna claims that Thomas slapped his hands during the course of the arrest when his hands were behind his back and he posed no threat to the officer. The taking of papers from McKenna’s hands to place him in handcuffs was de minimis injury. The video evidence does not support McKenna’s assertion that Thomas slapped his hands. Accordingly, I will grant the motion for summary judgment as Count Six.

False arrest

Count Seven alleges unreasonable seizure or false arrest in violation of the Fourth Amendment against Officers Thomas, Erickson and Greene, as well as against Assistant Commonwealth’s Attorney Tim Boyer. The defendants argue that they had probable cause to believe McKenna committed obstruction of justice — a misdemeanor under Virginia law — by failing to comply with their request for his driver’s license or other personal descriptors. I disagree.

The statute requires that all information and individual requirements of the order be included on any form personally served on the respondent, i.e., the scope and conduct prohibited by the order. But nowhere does the statute impose any obligations on the respondent to provide his descriptors. Therefore, the officers here were still able to perform their duty — serve McKenna with the emergency protective order — without obtaining his driver’s license or requiring that he provide other descriptors.

In fact, McKenna repeatedly requested that the officers hand him the protective order papers, and at one point, extended his hand and unequivocally gestured for Thomas to hand him the papers. Even after he was placed in handcuffs, he told the officers that he was not refusing service. The officers were certainly free to ask for his information. But McKenna was under no obligation to provide it. In sum, McKenna’s conduct was not illegal under Virginia law, and therefore the officers lacked probable cause to arrest him without a warrant for obstruction of justice.

Although there is no Supreme Court of Virginia case that is on all fours with the facts presented here, its prior decisions nonetheless would give fair warning that no reasonable officer could have concluded that McKenna’s conduct constituted obstruction of justice. Finally, the officers’ reliance on Boyer’s advice that McKenna could be charged with obstruction of justice is not dispositive.

Boyer also argues that he cannot be held liable under § 1983 for false arrest in part because he is entitled to absolute immunity. Here, Boyer, relying on facts provided by Erickson, opined that McKenna could be charged with obstruction of justice, and in doing so, he acted as an advocate in professionally evaluating the evidence assembled by the officer defendants and in approving of a criminal prosecution. Thus, Boyer is entitled to absolute immunity. Moreover, Boyer did not proximately cause the seizure at issue here, McKenna’s warrantless arrest.

Unlawful search

The defendants arrested McKenna without probable cause and, therefore, the search of his person by Thomas and Erickson incident to that arrest was also unlawful. The law on this issue was also clearly established at the time of the violation, and therefore, the officers are not entitled to qualified immunity.

Defendants’ motion for summary judgment granted in part, denied in part.

McKenna v. Police Chief, Bristow Va. City Police Department, Case No. 1:22-cv-00002, Oct. 26, 2022. WDVA at Abingdon (Jones). VLW 022-3-476. 32 pp.