The attorneys who represent the Virginia Department of Alcoholic Beverage Control, and its Agents, filed a brief in support of their motion to dismiss the $3-million lawsuit brought by plaintiff Martese Johnson, on Monday.
Johnson’s complaint charges “civil rights abuses in violation of the United States Constitution, federal statutes,” (in particular: Count I False Arrest (42 U.S.C. §1983); Count II Excessive Force (42 U.S.C. §1983); COUNT III Failure to Train or Supervise (42 U.S.C. §1983); and under the laws of Virginia; Count IV Negligence Defendants; and Count V Negligent Supervision and Training. The three Agent-officers directly involved in the arrest are charged on the majority of Counts, whereas two of the defendants – the Department of Alcoholic Beverage Control and Shawn P. Walker – only are involved in the federal Count relating to Failure to Train or Supervise; and the Commonwealth’s laws relating to Negligent Supervision and Training).
The Commonwealth’s ABC agency and individual agents involved in a controversial arrest in Charlottesville — who had been sued last month, by fourth-year University of Virginia student Martese Johnson – provided their side of the story relating to Johnson’s detention and subsequent arrest in the early morning hours of March 18, 2015.
The lawyers for Agency ask a U.S. District Court judge, for the Western District of Virginia, to dismiss the case for reasons they point to in this brief, asking that the judge recognize that the complaint is groundless.
The overarching defense against the complaint is the claim of Sovereign Immunity to “negligence-based claims” under the Eleventh Amendment of the U.S. Constitution; because the Commonwealth is – with some relatively rare exceptions – immune from jeopardy in the areas in which necessary services are provided to the people of the Commonwealth.
The concept dates from English Common Law, evidently, which held through the time that the individual colonies changed from being a “country” to a new status as a “Commonwealth” or a state, after 1789 when the Constitution was formally adopted.
The Legal Information Institute of Cornell University explains:
Sovereign immunity is treated in two places in the US Constitution. Article III, Section 2 is applicable to questions involving the immunity of Federal officials from lawsuits, suits against the Federal government by a state and vice versa, and suits against the Federal government generally.
The division of power between various possible sovereigns — the state and Federal governments — is dealt with by the Eleventh Amendment, which discusses suits between states, between states and the Federal government, and so-called diversity cases between citizens in different states. The issues are complex, and the line of Supreme Court decisions in this area is confusing and contradictory.
As to there being a material defense to the complaint – were the argument in the brief to fail in its procedural claim of Sovereign Immunity, for any reason – a further defense has a number of prongs.
“Probable cause existed to arrest the plaintiff. Reasonably possessing a suspicion of criminal activity, Agent Miller attempted to stop the plaintiff, who was walking away. Agent Miller was uniformed and wearing a visible badge. Allegedly, when he caught up to the plaintiff, he took hold of the plaintiff’s arm. The plaintiff saw Agent Miller and admits he “did not know him.” The plaintiff said nothing, physically “pulled away,” and continued to walk away. At this point, a reasonable officer, including Agent Miller, could have formed the belief that the plaintiff had committed the misdemeanor offense …
When stopped for questioning, the plaintiff saw his badge, knew he was an officer, and still pulled away. Based upon these acts and having viewed the exchange at Trinity, probable cause existed to arrest the plaintiff for a false identification and obstruction. Agent Miller followed and attempted to stop the plaintiff a second time, taking hold of or allegedly “grab[bing]” his elbow.
Agent Miller asked for the identification card. The plaintiff alleges he saw the badge and knew Agent Miller was a law enforcement officer. Saying nothing to Agent Miller, the plaintiff admits he “attempted to free himself.” While the plaintiff claims he had a subjective intent to free himself to explain his identification card, the plaintiff said nothing to Agent Miller to evidence this intent as he started to reach into his pocket. Agent Custer, who also reasonably believed that the plaintiff possessed a false identification, observed the plaintiff’s objective acts of resistance with Agent Miller.
In an effort to assist, Agent Custer came over and took the plaintiff’s other arm. Even though Agents Miller and Custer held the plaintiff’s arms now for a third time, the plaintiff, without saying a word, continued to try to “free himself.” As a result of this physical back-and-forth, the three men fell to the pavement, and, the plaintiff hit his head.
Although the plaintiff subjectively feels he was “slammed” down, no objective fact in the totality of circumstances supports that characterization. Once on the ground, the plaintiff admittedly “writhed,” or twisted his body from side to side, while saying only, “I go to UVA.” The plaintiff did not complain of any pain.
The Agents attempted to handcuff him. Once Agent Cielakie, who also observed the physical encounter, came over, the Agents collectively were able to arrest the plaintiff. No act of force is alleged after the arrest and, in fact, the plaintiff was provided medical treatment.
Essentially, from the facts and circumstances demonstrated here, there is no violation of the Fourth Amendment in this arrest, the Agency claims in the brief, since ‘a reasonable officer’ had reason to believe that Mr. Johnson had violated the laws that the Agent-Officers had been sent to enforce, (in this case, a Class 1 misdemeanor; then complicated by his evading detention by his actions, saying nothing to Officer Miller about his intentions while continuing to evade). This then led to the charge of ‘knowingly obstructing a law-enforcement officer’ in the performance of official duties, since the arrest was supported by “probable cause,”
The injury to Mr. Johnson — as did the injury to one of the officers — resulted when all three individuals took a tumble and fell altogether, suddenly, and certainly not by any force applied by the Agent-Officers.
In their response, attorneys for the state agencyargue that Johnson was not slammed to the ground by the agents, but instead had a “sudden fall” while trying to free himself from the agents.
The assessment of Mr. Johnson ‘that he was ‘grabbed’ and ‘slammed’ down is not supported by any objective facts and is simply inconsistent with the totality of the alleged facts and circumstances,” the attorneys write. The implication seems to be that it was Mr. Johnson himself who likely caused the accident in his continuing to pull away from the Officers whose job it was to detain him for questioning in order to rule out Mr. Johnson’s having in his possession a fake ID.
The further implication appears to be thst it is Mr. Johnson’s unwillingness — or incapacity — to interact in an appropriate way — in a calm and reasonable manner — that contributed, along with the laws of gravity, to his sustaining the injury.