Qualified Immunity for Police Officer Who Shot Woman in Own Front Yard

In a per curiam opinion dated April 2, 2018, the U.S. Supreme Court found that a police officer who shot a woman suspected of no crime but who was holding a kitchen knife at her side in her own front yard was shielded from a civil suit by qualified immunity. The doctrine of qualified immunity protects government officials from some types of lawsuits arising from the performance of their duties. As national attention has increasingly focused on police shootings, the Supreme Court opinion prioritizes the officer’s view of what happened over the citizen’s, and it will probably make it even more difficult for citizens to recover money damages on claims of excessive force. In finding the officer was entitled to the protection of qualified immunity, the Supreme Court focused on the question of whether at the time of the shooting his actions violated clearly established law. Finding the officer’s actions did not, the Court reversed the Ninth Circuit Court of Appeals, which in turn had reversed the District Court in granting summary judgment to the officer. The Supreme Court found the Ninth Circuit had misapplied its own precedents and interpreted “clearly established law” too generally. “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[1] “Police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”[2] Applying the Ninth Circuit precedent, the Court found that the officer did not violate the woman’s clearly established Fourth Amendment right not to be subjected to the use of deadly force. Justice Sotomayor...

Thomas E. Albro honored by VTLA with the Lifetime Achievement Award

At the Greenbrier on April 1, 2017, Thomas E. Albro received the Virginia Trial Lawyers Association’s Lifetime Achievement Award. The award is one of the highest honors bestowed by the VTLA, and has been awarded only three other times since its inception. The VTLA Lifetime Achievement Award is meant to “recognize a lawyer in practice in the Commonwealth of Virginia for more than 25 years who has exercised effective leadership within VTLA and who has demonstrated lifelong dedication to VTLA’s mission and principles.” Other criteria for the award require that the recipient’s work “demonstrates a compassion and commitment to advocacy on behalf of consumers” and that the individual has “contributed to the advancement of the profession and served the public through teaching, community service, charitable giving or other pro bono work.” Previous recipients of the award are Richard Railey, Sr., Bob Hall, and Betty A. Thompson....

The Doctrine of Qualified Immunity

Recent well-publicized reports of citizens being injured or killed by police officers have produced public discourse on what civil liability law enforcement officers face for the use of excessive force. The pattern of grievous personal injury followed by administrative leave, no criminal charges, and an eventual return to employment has left the families of Eric Garner, Philando Castile, and Alton Sterling asking what civil remedies are available against law enforcement officers. The chief source of tort liability for excessive force cases is 42 U.S.C. § 1983, which provides a civil action for money damages “to any citizen of the United States or other person within the jurisdiction thereof [for] the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .”[1] The United States Supreme Court has interpreted 42 U.S.C. § 1983 to create tort liability for police officers acting outside the scope of their lawful authority.[2] But even though police officers can be sued for violating civil rights, victims and their families seeking monetary compensation must still overcome a high hurdle before their cases will be heard: the doctrine of qualified immunity. There are various kinds of governmental immunity under the law. Federal and state governments, for example, are protected by what is called sovereign immunity, which protects them from suit unless they have passed legislation specifically allowing them to be sued.[3] “The doctrine of sovereign immunity from suit, rooted in the ancient common law, was originally based on the monarchical, semireligious tenet that ‘the King can do no wrong.’”[4] Both the federal government and the Commonwealth of Virginia have waived their sovereign immunity in...

Intentional Infliction of Emotional Distress in Virginia

Plaintiffs in defamation, insulting words, malicious prosecution, abuse of process, and other kinds of lawsuits in which no physical injuries are alleged will frequently add a count to their complaint for intentional infliction of emotional distress (IIED). This choice may better reflect their attorney’s desire to be thorough and pursue every potential cause of action rather than any confidence in its chance to succeed on the merits, or even to overcome the inevitable demurrer. In the view of the Supreme Court of Virginia “there are inherent problems in proving a claim alleging injury to the mind or emotions in the absence of accompanying physical injury,” and the tort of intentional infliction of emotional distress is not favored.[1] Without a physical injury, a plaintiff can only rarely recover for IIED. This article uses case examples to demonstrate what elements the Supreme Court of Virginia has held the plaintiff must prove in order to recover for intentional infliction of emotional distress. A cause of action for IIED, unaccompanied by physical injury, will lie when: One, the wrongdoer’s conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer’s conduct and the...

Social Media Defamation in Virginia

Facebook, the largest social media network in the world, published about thirty-one million messages and posts per minute in 2015. Instagram, Twitter, and Linkedin boast smaller numbers, but not by much. As social networks have expanded, so have the cases in which plaintiffs have successfully recovered damages for defamatory statements made on social media sites. Cases like Courtney Love’s have even created new terms of art in defamation, like ‘Twibel,’ which means a libelous statement made on the Twitter platform. The important thing to remember about social media defamation is that there are no special legal rules for social media postings. However, there are often special considerations for measuring damages caused by defamatory social media posts.   The Law of Social Media Defamation The standard for whether a statement is defamatory in Virginia is the same for social media posts as by any other method of publication. To support a defamation action, Virginia requires the plaintiff to show that the defendant issued: a publication about the plaintiff containing an actionable statement with the requisite intent. Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981). (Note: This is a simplified version of the law of defamation in Virginia). Whether the statement was made on an e-mail listserv, by handwritten letter, or by P.A. system, the basic requirements for defamation are the same. Contrary to what some defendants might believe, statements made on social media are no less “serious” than defamatory statements that are published by media outlets.   Measuring Damages in Social Media Cases The normal rules of defamation law apply to social media posts, but there are special...

Know Your Local Rules Governing Motions Practice

For those attorneys who practice primarily in one jurisdiction, the local rules of the general district or circuit court often are little more than an afterthought.  Whether it is in a city or county where an official set of rules is published, or a locality governed by less formal customary practices, it takes very little time for the repeat practitioner to know the standard procedure for motions practice like the back of her hand. But for theVirginialawyer who practices in jurisdictions across the state, familiarity with the ins and outs of motions practice in any one city or county can prove more of a challenge.  All attorneys should be armed with Virginia Supreme Court Rule 4:15, which governs motions practice, including how to properly notice presentation of a motion and applicable page limits and filing deadlines for briefs, in circuit courts across the state.  While adherence to this Rule is essential, depending on the locality, it often does not tell the whole story of how and when motions should be filed, noticed and briefed. Va. Code § 8.01-4 authorizes general district and circuit courts to prescribe rules for their respective districts and circuits that are “necessary to promote proper order and decorum and the efficient and safe use of courthouse facilities and clerk’s offices.”  Far from providing the courts carte blanche in rulemaking, however, the statute prohibits any rules that are inconsistent with any statute, Supreme Court rule, or decided case.  It further prohibits any rule that would abridge the substantive rights of any person before the court, and provides that local docket control procedures may not “deprive any...