Nick Hurston//September 4, 2023
Nick Hurston//September 4, 2023//
A man on horseback sufficiently alleged excessive force claims against a Lynchburg police officer who tased him when he fled the attempted service of a permitted warrant, the Western District of Virginia found.
The officer moved to dismiss for failure to state a claim. But U.S. District Judge Norman K. Moon said the man’s allegations were plausible and rejected the officer’s qualified immunity defense for now.
“Taking all the allegations as true … Plaintiff sufficiently alleges a violation of a clearly established constitutional right,” the judge held. “However, Defendant  may raise qualified immunity again at a later stage in the proceedings.”
The opinion is Rucker v. Miller (VLW 023-3-455).
In March 2021, the Lynchburg Police Department, or LPD, notified all units that a permitted warrant for an alleged protective order violation was outstanding for Steve Rucker Jr. A warrant is “permitted” if an officer is required to serve an individual and release them with a summons.
The notice to officers said Rucker was entering the city on horseback. Upon finding Rucker, an LPD officer activated his unmarked cruiser’s lights and siren. Rucker refused the officer’s request to stop. A chase ensued through downtown Lynchburg.
The chase lasted about seven minutes and Rucker turned down about a dozen streets. A pursuing officer told Rucker that they just had paperwork for him. Another officer tried to tase Rucker. He missed and caused the horse to speed up to about 25 mph.
A few minutes later, LPD officer Zachary Miller tased Rucker. The horse again sped up and Rucker fell off after two blocks. While Rucker lay in the street, LPD officer Michael Johnson Jr. jumped out of a nearby cruiser but it began drifting toward a retaining wall.
Johnson hopped back into his cruiser, turned it hard right and stepped on the accelerator. The cruiser rolled over Rucker, causing him multiple injuries that required hospitalization.
Rucker sued Miller and Johnson in the Western District of Virginia for excessive force under 42 U.S.C. § 1983, as well as state law claims for gross negligence, willful and wanton misconduct and battery.
Arguing that Rucker failed to state a claim and that qualified immunity shielded him from liability, Miller moved to dismiss.
“‘All claims that law enforcement officials have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard,’” Moon explained.
The court must consider the severity of the crime at issue, whether the suspect poses a threat to the safety of the officers or others and whether the suspect is resisting arrest or attempting to flee arrest.
“A court must also consider that officers must make ‘split second judgements — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation,’” the judge added.
Moon said the first factor weighed heavily in Rucker’s favor because he wasn’t wanted for any crime when the pursuit began.
“Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons. Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the … factors demonstrate a plausible claim of excessive force against Defendant Miller.”
— U.S. District Judge Norman K. Moon
The circumstances of the alleged protective order violation weren’t detailed; nothing established that Rucker committed or was suspected of committing any violent or other serious crime.
The second factor also favored Rucker. Moon noted that the allegations didn’t indicate Rucker was armed, violent or a threat to officers or the public, nor was there a suggestion that Rucker was riding in a violent or reckless manner.
The officer claimed that riding a horse at night through traffic posed a danger. Moon wasn’t swayed but acknowledged that further facts may support a different conclusion.
The third factor also tipped in Rucker’s favor, Moon said.
“Plaintiff does not suggest he was resisting arrest, but merely avoiding service of a summons,” the judge noted. “Plaintiff argues that he was also not fleeing arrest because there was no arrest to begin with. Again, considering the allegations in the light most favorable to Plaintiff, the … factors demonstrate a plausible claim of excessive force against Defendant Miller.”
Moon then pointed out that, according to the 4th U.S. Circuit Court of Appeals, using a taser is “a serious use of force that should only be deployed in dangerous situations.”
“The Fourth Circuit further held that ‘[t]asers may only be deployed when a police officer is confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser,’” the judge wrote.
Based on its analysis, Moon found that Rucker didn’t pose a safety risk to the officer or the public to warrant use of a taser.
Rucker claimed he sufficiently alleged a violation of a clearly established constitutional right. As such, Miller wasn’t entitled to qualified immunity. Rucker also contended that the court should wait to decide on qualified immunity until the record was more developed.
Moon acknowledged that excessive force by police is a clearly established violation of the Fourth Amendment and that use of a taser except in exceptional circumstances is excessive force.
“Thus, as Plaintiff has sufficiently alleged an excessive force violation and Defendant is not entitled to qualified immunity at this stage in litigation, Defendant Miller’s motion to dismiss will be denied as to the excessive force claim,” Moon wrote, adding that the officer may raise qualified immunity at a later stage in the proceedings.
Richmond litigator Mark Dix, who represents Rucker, said his client was hospitalized for almost a month and incurred more than $288,000 in medical bills from his injuries.
“We are very confident that qualified immunity would not provide any kind of obstacle to us getting to the jury,” he told Virginia Lawyers Weekly. “The Fourth Circuit has been clear as day since 2016 in Armstrong v. Village of Pinehurst that you do not use a taser to enforce compliance.”
He pointed out that his brief cites scholarship about qualified immunity being based on “factual fiction.”
“It turns out that this doctrine of qualified immunity was based upon somebody altering the United States Code in the late 1800s or early 1900s, but the Fourth Circuit found it was bound to apply stare decisis,” Dix explained. “At some point, courts are going to have to grapple with the sordid history of how § 1983 was altered.”
He noted that there are cases about the validity of qualified immunity making their way to the U.S. Supreme Court.
Dix said he hasn’t received an offer of settlement from the city. The case now proceeds to discovery.