Written by Daniel Royce, Esq.
On April 18, 2023, in the case of Best v. Farr, et al., 2023 Va.App. Lexis 245* (Court of Appeals of Virginia) addressing claims arising from an officer-involved shooting, the Court of Appeals ruled the trial court properly dismissed claims of gross negligence, willful, wanton, and reckless negligence, battery, and that the Arlington County Police Chief was grossly negligent in supervision of a police operation carried out by officers under his command. At issue were events arising from an Arlington County Police tactical unit stopping a vehicle for suspected criminal activity. Police efforts were resisted, which led to violence and injury to the appellants.
Appellants filed nearly identical civil complaints alleging joint and several liability against defendants/appellees under multiple counts.[1] Defendants filed demurrers which were sustained without leave to amend. This appeal followed, and the Court reviewed the lower court rulings de novo.[2]
Facts and Background
On May 3, 2018, Appellants Best and Lary (“Appellants”) were occupants of a van being surveilled by police under authority of Police Chief Farr. Lary had an outstanding warrant for her arrest.[3] A team of Arlington Police officers observed a transaction between Best and a third party which appeared to involve illegal drugs. After the transaction, Best parked his vehicle on a public street near an intersection.
The police surrounded Best’s vehicle with unmarked police vehicles. Four armed, plain clothes officers approached the van. On of the officer’s approached Best’s window. No badges were displayed, nor were the appellants told they were under arrest. The officer closest to the window told Best to show him his hands. In response, Best put his vehicle in drive, struck the vehicle in front of him, and escaped. One of the officers was in the path of appellant vehicle, and fired multiple rounds into the van. Best was struck five times and Lary was struck once.
Due to his injuries, Best was unable to continue driving and stopped the van and told Lary to flee on foot. She hid in the bushes and was located by a police dog which bit her. The appellants were arrested and taken to the hospital. Best was treated for five gunshot wounds and a stab wound. Best claimed the officer(s) “likely” stabbed him while he was unconscious.
Legal Discussion
1. The Stop Was Lawful
The Appeals Court found that facts alleged, and body camera video incorporated into the pleadings clearly supported the trial court’s finding that the stop of appellant’s van was supported by a reasonable articulable suspicions and thus lawful (see Terry v. Ohio, 392 U.S. 1 (1988))
The Appellants attempted to characterize their encounter with law enforcement as an arrest, but the stop was not in arrest. Instead, it was a detention requiring reasonable suspicion. The suspected drug activity observed by officers provided the requisite reasonable suspicion for the stop.[4]
2. Battery
In addressing the battery claim(s), the Court noted, “[a] law enforcement officer enjoys ‘special protection’ from tort liability, such as for a battery, when he or she is performing his or her duties in a lawful manner… [t]o properly plead a battery against law enforcement officer, a plaintiff must allege ‘a wrongful act,’ meaning that the law enforcement officer’s conduct lacked ‘justification or excuse’’ (relying on Pike v. Eubank, 197 Va. 692 (1956)). If the level of force used is reasonable in execution, of a lawful duty, an officer is immune from suit.
Despite operating unmarked vehicles and being not in uniform, the Court found that the only reasonable inference to be drawn from the alleged facts was that the appellants did realize they were dealing with law enforcement.[5] One of the police trucks did flash its emergency lights at the appellant van, and one of the officers shouted at Best to show his hands. Appellants knew that Lary had an outstanding warrant, and police were possibly looking for her. Significantly, the Court noted that the pleadings did not allege that either of the appellants did not know they were interacting with police.
The Court states, “Best and Lary were not privileged to defend themselves from an assault or threatened assault because, as we have concluded, the only reasonable inference is that Best and Lary were in fact aware that they were dealing with law enforcement officers. There is no right to resist an investigative detention.” The Court found that Best’s conduct in resisting and fleeing the scene from a lawful detention was an intervening superseding cause of the appellants respective injuries. The Court noted that the proximate cause of the injuries was Best’s conduct, and because no reasonable person could differ on application of proximate cause, it was proper for the Court to make this determination as a matter of law.
Video confirmed that one of the officers was in immediate danger of being struck by the fleeing van. It matters not that he was able to avoid the injury. Contrary to assertions by Appellants, the officer’s avoidance of being struck does not define whether he was in immediate danger. The video plainly shows he was, and thus use of deadly force was justified.
3. Gross Negligence, Willful/Wanton Conduct
In the trial Court, appellants were found to have not alleged sufficient facts to state a claim under theories of Gross Negligence and/or Willful and Wanton Conduct. The implication of this finding was that officers did not owe appellants a special duty.
The trial court also found that even if a special duty had existed, the injuries were the result of an intervening superseding cause (Best’s actions in fleeing and placing an officer in danger). Further, the Court determined that the trial court did not abuse its discretion in granting the demurrers with prejudice and denying further leave to amend.[6]
Practical Implications for Public Entities
This case provides a good review and analysis of applicable law relating to Terry stops and implications on local law enforcement engaging in such stops while uniformed and under cover. It has particular significance to situations which have unfortunately escalated into violence. Cases like this provide a good tool for public risk managers to utilize in educating respective law enforcement partners in how to act and react in such situations. In the realm of Public Risk management, planning is crucial to protecting public entities.
The experienced lawyers of KPM spend great time and effort to stay aware of pertinent cases in the realm of Public Risk Management, and we can be counted on to be experts in cases involving local law enforcement. You can trust KPM to be knowledgeable in the field of public risk management and continue to keep you updated on cases and authorities that will significantly impact our clients.
Please don’t hesitate to reach out to us with questions, concerns, or for assistance.
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[1] Count 1- Gross Negligence; Count 2- Willful and Wanton Negligence; Count 3- Battery; and Count 4- Gross Negligence in Supervision (against the Police Chief)
[2] De novo review occurs when a court decides an issue anew without deference to a lower court’s decision.
[3] Lary made arrangements with Alexandria City authorities to turn herself in to the City jail on the day after the subject incident.
[4] In fact, the Complaint on its face plead facts sufficient to establish reasonable articulable suspicion. See Best v. Farr, et al at 13-14.
[5] The Court noted that “only reasonable inferences will be credited to Best and Lary.”
[6] This was in part due to a lengthy procedural history which included numerous bills of particulars, and multiple complaints. The trial court allowed appellants to clarify their respective claims on multiple occasions and had amble prior opportunity to allege their facts and claims.