# Clark v. Coleman

> District Court, W.D. Virginia · March 24, 2020

URL: https://www.frixlaw.com/law-library/cases/10691343

## Case

- **Court:** District Court, W.D. Virginia
- **Decided:** March 24, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED ©
MAR 24 2020
IN THE UNITED STATES DISTRICT COURT ay JN MCDONALD
FOR THE WESTERN DISTRICT OF VIRGINIA DEPUTY CLERK
DANVILLE DIVISION
BRIAN H. CLARK, )
) Civil Action No. 4:17-cv-00045
Plaintiff, )
)
Vv. )
)
ROB COLEMAN, ) By: Hon. Michael F. Urbanski
) Chief United States District Judge
Defendant. )
MEMORANDUM OPINION
“Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t
make them illegal or for that matter punishable or for that matter grounds for a seizure.”
Cruise-Gulyas v. Minard, 918 F.3d 494, 495 (6th Cir. 2019).
This case concerns whether an officer may stop a vehicle because a passenger displayed
an offensive gesture towards the officer, a gesture that anyone must concede “was crude, [but]
not criminal.” Wilson v. Martin, 549 F. App’x 309, 311 (6th Cir. 2013). A jury was empaneled,
and they determined that the officer’s actions did not violate the passenger’s rights. The
question before the court is whether that verdict can stand. After a review of the applicable
law and relevant evidence, the court GRANTS Plaintiff Brian Clark’s motion to set aside the
jury verdict and enter judgment for the plaintiff. ECP No. 141. The law plainly prohibits that
which occurred here, and the jury’s verdict cannot stand. However, the court DENIES
Clark’s motion for a new trial on the issue of damages, finding, as a matter of law, that Clark
has not carried his burden of demonstrating compensable or punitive damages sufficient to
warrant a new trial. Id.

I.
On the morning of July 25, 2016, Clark appeared in court in Patrick County, Virginia,
on a civil matter unrelated to the present action. Previously, he had been banned from the

courthouse, except under certain circumstances, by Circuit Court Judge Martin Clark. Because
of that prior order, sheriff’s deputies in Patrick County, who were responsible for courtroom
security, were keenly aware of Clark. Defendant Lieutenant Rob Coleman was one of those
deputies who was in the courtroom for Clark’s hearing.1 Coleman was stationed in the back
of the courtroom and, according to his testimony, he was in the courtroom “for quite a while.”
Trial Tr. 205:11, July 15, 2019, ECF No. 146 (hereinafter “Tr.”). Nothing “untoward”

happened during Clark’s hearing, and Clark did not act intoxicated. Id. at 203:25–204:1;
232:11-16.
After the hearing was over,2 Coleman left the courthouse and drove his cruiser to a
grocery store parking lot near the courthouse. Because he had been in court for some time, he
pulled over to check messages and emails on his work cell phone. While Coleman sat in his
cruiser, Clark and his sister, Beth Richardson, drove by. (Clark was the passenger, and his sister

was driving.) As they did so, Clark “flipped [Coleman] off.” Tr. 206:18.3

1 Coleman has since been promoted to captain. At the time of the events in question, however, he was a
lieutenant.
2 Both Denise Freeman and Wendy Inzerillo testified to conversations they allegedly overheard that day among
Patrick County Sheriff’s Deputies regarding a plan to “take down” Clark. Their testimony is omitted here and
is not considered by the court for two reasons. First, under the applicable standard of review, the evidence is
taken in the light most favorable to Coleman. Because the jury returned a verdict in favor of Coleman, the court
works under the assumption that the jury rejected Freeman’s and Inzerillo’s testimony. Second, even if the
testimony were considered, there is no evidence that Coleman participated in any of the alleged conversations,
nor is there evidence to suggest that, if such a plan did exist, Coleman was aware of it.
3 The court assumes, and the parties do not appear to contest, that “flipping” someone off means to display
one’s middle finger so as to transmit a vulgar message of disapproval.
Coleman followed the car; he radioed the dispatcher his location, the license plate of
the car, and the number of occupants, and effectuated a traffic stop on the vehicle. Coleman
testified as to his rationale for the traffic stop:

It took me by surprise. In 20 years of doing this job in uniform,
I’ve never had anybody that would flip me off that was not under
the influence of drugs or alcohol or not suffering from some sort
of mental illness.

Id. at 206:21-25. Coleman believed “[t]hat he had something going on for him to flip a
uniformed police officer off, that I needed to make contact with him.” Id. at 207:14-16.
Coleman testified that he did not charge Clark with a crime:
No, I did not. After speaking to him, he didn’t act intoxicated.
He didn’t act like he had any type of mental illness. I was just
stopping him because it’s very out of the norm for a normal
citizen to flip off a police officer. . . . I thought it was quite
possible that he either needed assistance for or that he had
mistook me for somebody else or he was needing help.

Id. at 215:4-14. Coleman quickly made the assessment that none of this applied to

Clark.

After speaking with him and questioning him about him flipping
me off, and his answer, I wasn’t angry. He wasn’t angry. We didn’t
get in to a heated discussion on the side of the road. I didn’t pull
him out of the car. I didn’t ask him to step on [sic] the car. He
stayed seated. I checked to make sure that he didn’t have any
other outstanding papers. Once that civil paper was brought to
the scene and given a copy to him, he was free to go.

Id. at 215:16-23.

When asked on cross-examination whether a police officer may conduct a traffic stop
when a passenger in a vehicle insults an officer, Coleman responded that testified that “[i]t
depends.” Id. at 231:4-8. Coleman explained the grounds under which such a stop may occur:
If that person is doing something that would endanger himself or
others, if he is or she is acting in a mentally ill way or where they
could be a danger to someone else or themselves or someone
else, then yes, it would be – it wouldn’t be probable cause, but it
would be enough for me to have reasonable suspicion that
something is not normal with the passenger in that vehicle and I
need to investigate further.

Id. at 231:9-18.

Once he pulled the car over, Coleman approached the passenger’s side of the car. At
no point did Coleman approach, or even speak to, the driver. See Tr. 120:10–11. Coleman
asked Clark for his identification, which Clark readily produced. Coleman testified that he
asked Clark: “What made you flip me off? Are you okay?” Id. at 210:12–13. Clark said he was
waving and disagreed that he flipped Coleman off. Although Coleman testified that he realized
at that point that Clark was neither intoxicated nor deranged, he did not send Clark on his
way. Rather, Coleman walked back to his police car and called dispatch to run a check on
Clark.
During the stop, several other patrol cars arrived to support Coleman as needed. See,
e.g., Tr. 146:1–13 (testimony of Dustin Dillon); 152:14–24 (testimony of Shawn Keffer);
161:7–162:5 (testimony of Ronald Williams). At some point, Coleman noticed Denise
Freeman, a friend of Clark’s, videoing the scene with a cellular phone or iPad from some
distance away. For his own safety, Coleman approached Freeman and explained that, while
she was free to video him, for officer safety she needed to be in front of him. Ultimately,
Coleman issued her a citation for impeding traffic.
Upon calling in Clark’s information to dispatch, Coleman was alerted that there were
civil papers to be served on Clark. Although the papers in question had been served on Clark
some months prior, Coleman was not aware of that fact, and nothing apparently indicated to
him or to the dispatcher that those papers had previously been served. Deputy Shawn Keffer,
who had arrived on the scene after Coleman’s call out, returned to dispatch, retrieved the

papers, returned to the scene, and served the papers on Clark. Although Coleman had taken
Clark’s driver’s license, another deputy returned it to him, and Clark was permitted to leave
after approximately 10 – 20 minutes. Neither Clark nor his sister were cited for any crime or
traffic infraction. Indeed, Coleman testified that “there was nothing about the way the driver
was driving the car that indicated any kind of violation of any traffic laws at all.” Id. at 119:14-
17.

Clark filed suit against Coleman (and others) on July 10, 2017, alleging violations of his
constitutional rights, and this matter was tried by a jury on July 15–16, 2019. At trial, the jury
was instructed as follows:
To succeed on this claim [that Coleman violated Clark’s Fourth
Amendment rights], the plaintiff must prove each of the
following elements by a preponderance of the evidence:
First: That the defendant intentionally committed acts
that violated the plaintiff’s federal constitutional right not to be
seized without reasonable suspicion;
Second: That the defendant acted under color of law; and
Third: That the defendant’s conduct caused the plaintiff’s
injuries.
As regards the first element, the plaintiff claims that the
defendant seized him under unreasonable circumstances. In
general, a seizure of a person in a traffic stop without a warrant
is reasonable if the officer had reasonable suspicion to believe the
plaintiff had committed or was committing a crime. In order to
prove the seizure in this case was unreasonable, the plaintiff must
prove by a preponderance of the evidence that he was arrested
without reasonable suspicion. The plaintiff has the burden of
proving that the defendant lacked reasonable suspicion for the
stop. . . .
Government officials in general, and police officers in
particular, may not exercise their authority for personal motives,
particularly in response to real or perceived slights to their
dignity. The Constitution requires that, in the face of verbal
challenges to police action, officers and municipalities must
respond with restraint. The Constitution protects a significant
amount of verbal criticism and challenge directed at police
officers. Speech, including expressive gestures, is often
provocative and challenging. But it is nevertheless protected
against censorship and punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil
that rises far above public inconvenience, annoyance, or unrest.
If you find that the traffic stop was solely in response to
constitutionally protected speech or gestures, you must find that
the traffic stop was unreasonable.
As regards the second element, the parties have agreed
that the defendant acted under color of law.
As regards the third element, the defendant’s conduct
caused the plaintiffs injuries if the plaintiff would not have been
injured without the defendant’s conduct, and the injuries were a
reasonably foreseeable consequence of the defendant’s conduct.
Jury Instruction No. 15, ECF No. 137. Neither party objected to the instruction. Ultimately,
the jury returned a verdict in favor of Coleman, as set forth in the verdict form:

(1) Was defendant Rob Coleman’s traffic stop of plainiff Brian H. Clark
unreasonable, i.e., did the defendant lack reasonable suspicion to stop the
vehicle and detain
a. Yes____ No_V__
If you answered Yes to this question, go to Question 2. If you answered No, skip the
remaining questions, go to the Signature Section at the end of the form, and have your
foreperson sign it.

Verdict Form, ECF No. 138.

Thereafter, Clark filed a Motion Pursuant to Rule 50(b) and Rule 59 of the Federal
Rules of Civil Procedure (i) to Set Aside the Judgment in Favor of Defendant; (ii) to Set Aside
the Jury Verdict; (iii) to Enter a Directed Verdict for Plaintiff; and (iv) to Order a New Trial

on Damages. ECF No. 141. Coleman opposed the motion, ECF No. 148, primarily focusing
on the reasonableness of the traffic stop. Clark replied, responding to the argument that the
vehicle was appropriately siezed. ECF No. 149. The court invited both parties to submit
supplemental briefs on the issue of damages, which Coleman did. ECF No.154. The matter is
ripe for disposition.
II.

Under Federal Rule of Civil Procedure 50(a), after a party has been fully heard on an
issue, if the court finds that a “reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue, the court may . . . grant a motion for judgment as a
matter of law against the party on a claim . . . .” Fed. R. Civ. P. 50(a)(1)(B). “If the court does
not grant a motion for judgment as a matter of law under Rule 50(a), the court is considered
to have submitted the action to the jury subject to the court’s later deciding the legal questions

raised by the motion.” Fed. R. Civ. P. 50(b). A new trial may be granted after the conclusion
of a jury trial. Fed. R. Civ. P. 59(a)(1)(A). “A court, however, may not disturb the verdict where
there was sufficient evidence for a reasonable jury to find in the non-movant’s favor.” Dotson
v. Pfizer, Inc., 558 F.3d 284, 292 (4th Cir. 2009) (citing Lack v. Wal-Mart Stores, Inc., 240 F.3d
255, 259 (4th Cir. 2001)). “A trial court may not appropriately enter [judgment as a matter of
law] unless it concludes, after consideration of the record as a whole in the light most favorable

to the non-movant, that the evidence presented supports only one reasonable verdict, in favor
of the moving party.” Williams v. Cerberonics, Inc., 871 F.2d 452, 458 (4th Cir. 1989) (citations
omitted).
“The burden falls heavily upon a party seeking to set aside a jury verdict, for it is well

established that the court must view the jury verdict in the light most favorable to the party in
whose favor it is found, and such a party is entitled to the benefit of all inferences which the
evidence fairly supports, even though contrary inferences might be drawn.” Hackett v.
Stuckey’s, Inc., 670 F. Supp. 172, 173 (W.D. Va. 1987) (citing Jackson v. Virginia, 443 U.S.
307 (1979)). “Issues of fact are left to the determination of the jury, whose duty it is to
determine the credibility of the witnesses, and the court should not substitute its judgment for

that of the jury in disputed cases.” Id. (citing Jacobs v. The College of William & Mary, 517 F.
Supp. 791, 794 (E.D. Va. 1980)). “Only in those rare situations where the jury’s verdict is
wholly contrary to the law or the evidence, or without evidence to support it, is it proper for
the court to grant judgment non obstante verdicto. The applicable standard permits the court
to grant the judgment n.o.v. only when ‘the evidence is such that without weighing the
credibility of the witnesses there can be but one reasonable conclusion as to the verdict.’” Id.

(quoting Brady v. S. Ry. Co., 320 U.S. 476, 479–80 (1943)).
III.
The issue here is a discrete one: may an officer, consistent with the First and Fourth
Amendments, seize a vehicle and its passengers simply because a passenger in the vehicle
displayed his middle finger at the officer? “In determining whether a Fourth Amendment
violation occurred we draw all reasonable factual inferences in favor of the jury verdict, but as

we made clear in Ornelas v. United States, 517 U.S. 690, 697–699 (1996), we do not defer to
the jury’s legal conclusion that those facts violate the Constitution.” Muehler v. Mena, 544
U.S. 93, 98 n.1 (2005). Neither the facts nor the law support Coleman’s argument that the
seizure was reasonable under the Fourth Amendment because he did not have “reasonable,

articulable suspicion that criminal activity [was] afoot” to stop the vehicle. Illinois v. Wardlow,
528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Further, the seizure is
not justified under any Fourth Amendment exception.
A.
The law is this area is well-settled. The Fourth Amendment “prohibits unreasonable
searches and seizures by the Government, and its protections extend to brief investigatory

stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534
U.S. 266, 273 (2002) (internal quotation marks omitted). “In the nearly fifty years that have
passed since issuing its seminal decision in Terry v. Ohio, the Supreme Court has frequently
revisited the issue of reasonableness in the context of traffic stops and made clear that an
investigatory stop ‘is permissible under the Fourth Amendment if supported by reasonable
suspicion’ that criminal activity may be afoot.” United States v. Stacks, 571 F. App’x 163, 169

(4th Cir. 2014) (per curiam) (quoting Ornelas v. United States, 517 U.S. 690, 693 (1996)).
Likewise, a traffic stop may be supported by probable cause that the driver had committed a
civil traffic violation. Whren v. United States, 517 U.S. 806, 810 (1996).
At trial, the jury was instructed that a traffic stop was a seizure under the Fourth
Amendment, and that a stop is “reasonable if the officer had reasonable suspicion to believe
the plaintiff had committed or was committing a crime.” Jury Instruction No. 15, ECF No.

137. Even taking the facts in the light most favorable to Coleman, see Szedlock v. Tenet, 139
F. Supp. 2d 725, 729 (E.D. Va. 2001), displaying one’s middle finger is not illegal, nor does
the gesture “on its own create probable cause or reasonable suspicion that [Clark] violated any
law.” Cruise-Gulyas v. Minard, 918 F.3d 494, 496 (6th Cir. 2019). “This ancient gesture of

insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal
activity.” Swartz v. Insogna, 704 F.3d 105, 110 (2nd Cir. 2013) (emphasis in original). Here,
Coleman based the stop solely on Clark’s display of an offensive gesture. On that basis, the
stop was not grounded in reasonable suspicion of criminal activity.
In his briefing on the Rule 50 and 59 motions, Coleman argues he had reasonable
suspicion that Clark was violating Va. Code Ann. § 18.2-388, which makes public intoxication

a crime. Resp. to Rule 50 and 59 Mots., ECF No. 148, at 7-8. This post hoc rationalization,
however, cannot be squared with the evidence presented at trial, and specifically Coleman’s
own testimony. By his own admission, it was his “concern” for Clark’s safety that motivated
the stop, not suspicion of criminal activity.
Of crucial significance to the court’s view of this case is the fact that Coleman had just
seen Clark minutes before in court where Clark displayed no “untoward” behavior and did

not appear intoxicated. Tr. 203:25-204:1; 232:11-16. Under these circumstances, Coleman’s
expressed concern over safety cannot ring true.4

4 Moreover, even if Coleman did think Clark was “drunk,” the evidence still is insufficient to establish
reasonable suspicion that Clark was violating Va. Code Ann. § 18.2-388. “A person is ‘intoxicated’ if he ‘has
drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement,
general appearance or behavior.’” United States v. Brown, 401 F.3d 588, 596–97 (4th Cir. 2005) (quoting Va.
Code Ann. § 4.1-100). Here, Coleman testified that he observed Clark in court that morning, less than half an
hour before he pulled over the car in which he was a passenger. At that time, he did not appear intoxicated to
Coleman. Tr. 232:15–16. Thus, aside from his constitutionally protected speech, nothing suggested to Coleman
that Clark was intoxicated, much less that Clark was “belligerent to the point where [he was] very intoxicated
or could have a mental illness,” as Coleman testified was his experience every time he had been “flipped off”
before. Tr. 207:8–9. To countenance Coleman’s argument would, in no uncertain terms, eviscerate the
protections of the First Amendment, albeit for the offensive speech in question here.
In Swartz v. Insogna, the Second Circuit was faced with an officer who asserted the
passenger’s middle finger indicated to him that the passenger “‘was trying to get [his] attention
for some reason’ and that [the officer] ‘was concerned for the female driver.’” 704 F.3d at 110.

In rejecting the reasonableness of the stop, the court stated:
Perhaps there is a police officer somewhere who would interpret
an automobile passenger’s giving him the finger as a signal of
distress, creating a suspicion that something occurring in the
automobile warranted investigation. And perhaps that
interpretation is what prompted Insogna to act, as he claims. But
the nearly universal recognition that this gesture is an insult
deprives such an interpretation of reasonableness. This ancient
gesture of insult is not the basis for a reasonable suspicion of a
traffic violation or impending criminal activity. Surely no
passenger planning some wrongful conduct toward another
occupant of an automobile would call attention to himself by
giving the finger to a police officer. And if there might be an
automobile passenger somewhere who will give the finger to a
police officer as an ill-advised signal for help, it is far more
consistent with all citizens’ protection against improper police
apprehension to leave that highly unlikely signal without a
response than to lend judicial approval to the stopping of every
vehicle from which a passenger makes that gesture.
On the Plaintiff’s version of the facts, the stop was not
lawful . . . .

Id. The same is true here. Even if the jury accepted Coleman’s proffered reason for the stop,
the basis was not reasonable as a matter of law. And even if it had accepted the argument he
raises now—that he believed Clark was intoxicated or mentally ill—that basis is not reasonable
as a matter of law.
B.
Even if an officer did not have reasonable suspicion that a crime was afoot, a traffic
stop can be justified if one of the limited exceptions to the Fourth Amendment applies. At
trial, Coleman’s testimony implicated two potential exceptions to the Fourth Amendment: (1)
the community caretaking doctrine, and (2) exigent circumstances existed justifying the
seizure. Specifically, Coleman argued that the impetus for his stop was a concern for
Coleman’s safety and the public welfare. Neither exception to the Fourth Amendment was

expressly asserted by Coleman in briefs or at trial, nor was a jury instruction requested on
either exception. Regardless, there is insufficient evidence for a jury to find either exception
applies to the facts of this case.
The community caretaking exception to the warrant requirement can, under limited
circumstances, justify a search or seizure when there is no reasonable basis to believe criminal
activity is underway. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Community caretaking

functions include established procedures or routine activities such as impoundment of a
vehicle that impedes the safe flow of traffic, entry into a car after a traffic accident to assess
occupants’ medical conditions, or opening a truck compartment to identify the owner. See
South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976); United States v. Johnson, 410 F.3d
137, 145 (4th Cir. 2005); Durney v. Doss, 106 F. App’x 166, 169 (4th Cir. 2004). The Fourth
Circuit has held that the community caretaking doctrine also extends to activities “protecting

the safety of persons or property.” United States v. Gillespie, 332 F. Supp. 2d 923, 929 (W.D.
Va. 2004); see Phillips v. Peddle, 7 F. App’x 175, 178 (4th Cir.2001). However, there are two
limits to this exception. First, the doctrine can only apply to police activities “totally divorced
from the detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.” United States v. Ramage, No. 1:09CR61, 2009 WL 10677237, at *6 (N.D.
W. Va. July 13, 2009) (citing Cady, 413 U.S. at 441). Second, there cannot be anything on the

record to suggest assertion of this exception is pretextual or in bad faith. United States v.
Gwinn, 219 F.3d 326, 335 (4th Cir. 2000) (finding that officer’s reentry into suspect’s home
to obtain suspect’s shoes and shirt was not a Fourth Amendment violation).
In addition to the community caretaking exception to the Fourth Amendment, the

Supreme Court and this Circuit have held that more general “emergencies,” which evince “a
sufficient level of urgency, may also constitute an exigency and justify a warrantless entry and
search.” United States v. Yengel, 711 F.3d 392, 397 (4th Cir. 2013); see also, Brigham City,
Utah v. Stuart, 547 U.S. 398, 403 (2006); United States v. Hill, 649 F.3d 258, 265 (4th Cir.
2011). Under the exigency exception, the person conducting the seizure “must have had an
objectively reasonable belief that an emergency existed that required immediate entry to render

assistance or prevent harm to persons or property within.” United States v. Moss, 963 F.2d
673, 678 (4th Cir. 1992). “An objectively reasonable belief must be based on specific articulable
facts and reasonable inferences that could have been drawn therefrom.” Yengel, 711 F.3d at
397; see also Mora v. City of Gaithersburg, 519 F.3d 216, 224 (4th Cir. 2008) (citing Terry v.
Ohio, 392 U.S. 1, 21 (1968)). When analyzing whether an exigency exists, courts should give
some deference to the decisions of trained law enforcement officers to avoid “‘unreasonable

second guessing’ of the officers’ assessment of the circumstances that they faced.” Figg v.
Schroeder, 312 F.3d 625, 639 (4th Cir. 2002) (quoting United States v. Montoya de Hernandez,
473 U.S. 531, 542 (1985)). However, it is incumbent on courts to gauge the reasonableness of
an officer’s decision in light of the objective evidence. Id.
The emergency doctrine is similar to, but distinct from, the community caretaker
doctrine. Both exceptions to the Fourth Amendment arise out of law enforcement’s duty to

protect persons and property. Moss, 963 F.2d at 678 (stating the emergency exception to
warrant requirement permits officers to make searches in order “to protect property or
persons from immediately threatened harm, or to render assistance to persons in need”);
Gillespie, 332 F.Supp.2d at 929 (stating that the community caretaker exception to the warrant

requirement “allows officers who are ... protecting the safety of persons or property, to make
warrantless searches.”). “The community caretaking doctrine requires a court to look at the
function performed by a police officer, while the emergency exception requires an analysis of
the circumstances to determine whether an emergency requiring immediate action existed.
Thus, as the district court noted, the doctrines have different ‘intellectual underpinning[s].’”
Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009) (quoting Hunsberger v. Wood, 564

F.Supp.2d 559, 567 (W.D. Va. 2008)).
The Fourth Circuit has indicated that the community caretaking doctrine is more
applicable when officers are engaged in “a routine police procedure, such as the policy of
locating weapons in towed cars” and that “the court should examine the programmatic
purpose of the policy—whether it was animated by community caretaking considerations or
by law enforcement concerns.” Hunsberger, 570 F.3d at 554. Under a community caretaking

doctrine, the court may also inquire as to the subjective motivations of the officer, in
determining whether his public safety concerns were mere pretext. Gillespie, 332 F. Supp. 2d
at 929. Alternatively, when an officer is “responding to an emergency, and not as part of a
standardized procedure, the exigent circumstances analysis and its accompanying objective
standard should apply.” Hunsberger, 570 F.3d at 554. Additionally, the Fourth Circuit has
emphasized that this “emergency exigency” exception to the warrant requirement justifies

“immediate entry as an incident to the service and protective functions of the police as
opposed to, or as a complement to, their law enforcement functions.” United States v.
Ramage, No. 1:09CR61, 2009 WL 10677237, at *6 (N.D. W.Va. July 13, 2009) (quoting Moss,
963 F.2d at 678). Therefore, where community caretaking activities must be wholly untainted

by investigatory motivations, the emergency aid exception can apply to activities more closely
tied to law enforcement functions.
The community caretaker doctrine does not apply to the facts of this case. First,
Coleman’s traffic stop is not “totally divorced” from investigative functions, based on his own
representations. A court in this district chose not to apply the community caretaking exception
because the warrantless home entry at issue felt closely related to a potential investigation,

even though officers testified a search was not conducted until a warrant was obtained. United
States v. Davis, No. 4:07CR00014, 2007 WL 2301583, at *4 (W.D. Va. Aug. 9, 2007)
(“Nonetheless, I am reluctant to ground this decision solely on the community caretaker
exception because looking for a shooting suspect or his potential victims is a situation in which
law enforcement’s community caretaker functions coincide with their investigative
functions.”). Similarly, Coleman argued that there existed reasonable suspicion to believe Clark

was violating Virginia’s public intoxication statute, which forecloses reliance on the
community caretaker doctrine to justify his actions. See Johnson, 410 F.3d at 145 (“The
exception applies only to conduct that is ‘totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute,’ and not when
community-caretaking functions are used as ‘a subterfuge from criminal investigations.’”)
(quoting Dombrowski, 413 U.S. at 441). Because Coleman contends he was investigating a

potential violation of Va. Code Ann. § 18.2-388, the community caretaking exception cannot
justify his actions. See id. at 143–44 (“Indeed, the exception only applies when the police are
not engaged in a criminal investigation . . . .”).
Second, Officer Coleman’s alleged public safety concern seems questionable, at best.

Brigham City, 547 U.S. at 403 (“We begin with the familiar proposition that reasonableness is
“the ultimate touchstone of the Fourth Amendment. . .”). Although the Fourth Circuit has
not established a standard to evaluate the officer’s purported public safety concern, a district
court in this circuit applied a “reasonable articulable suspicion” standard to assess the officer’s
claimed concern. United States v. Tavarez-Rojas, No. 1:07CR126, 2008 WL 622041, at *4
(W.D. N.C. Mar. 4, 2008) (“A Terry stop may also be appropriate where the officer has a

reasonable articulable belief that a motorist, while not engaged in unlawful driving, poses a
threat to public safety or himself, or appears to be in need of assistance.”). In that case, the
officer was found to have “clearly articulated reasonable concerns. . . for the safety of the
motoring public, to wit, that an accident could be caused if the van’s rear bumper fell off or if
cargo fell out of what she perceived to be an unlatched and partially open rear cargo hatch.”
Id. at *5. In another case, the court found officers stated “credibly and reasonably that when

they saw defendant and Eason unconscious in the Malibu they were concerned that the two
might be having a medical emergency.” United States v. Thompson, No. 7:17-CR-164-FL-1,
2018 WL 6174690, at *9 (E.D. N.C. July 11, 2018), report and recommendation adopted, No.
7:17-CR-164-FL-1, 2018 WL 4896721 (E.D. N.C. Oct. 9, 2018). Here, Coleman claims he was
concerned Clark was drunk or mentally ill, because he could not fathom why else an individual
would flip off a uniformed officer. Critically, however, Coleman had just seen Clark in court,

saw no signs of visible intoxication or any other untoward behavior, and knew Clark was not
operating the vehicle he pulled over. Tr. 203:25-204:1; 232:11-16. Coleman’s recent
observation of Clark in the courtroom calls into question both his suspicion that Clark was a
danger to himself, as he had just presented himself in court one half-hour earlier without issue,

and his concern for the public, as Clark was not operating the vehicle.
Third, there is evidence in the record that suggests Coleman’s assertion of concern for
Clark’s safety and that of the public was pretextual. Johnson, 410 F.3d 137, 145 (4th Cir. 2005)
(“If Officer Bentivegna’s stated reasons for the search were pretextual, the community-
caretaking exception would not apply.”). The fact that Coleman did not permit Clark to leave
after confirming he was okay casts doubt on his intentions. See United States v. Taylor, No.

3:09CR249, 2009 WL 3334654, at *7 (E.D. Va. Oct. 14, 2009), aff’d, 624 F.3d 626 (4th Cir.
2010) (applying the community caretaker doctrine to a warrantless entry when an officer
terminated the interaction as soon as his concern for a lost child abated). While, “[t]he
maximum acceptable length of a routine traffic stop cannot be stated with mathematical
precision,” the detention should not last “longer than was necessary, given its purpose.”
United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008); See Florida v. Royer, 460 U.S. 491,

500 (1983) (plurality opinion). “Thus, once the driver has demonstrated that he is entitled to
operate his vehicle, and the police officer has issued the requisite warning or ticket, the driver
‘must be allowed to proceed on his way.’” Id. (quoting United States v. Rusher, 966 F.2d 868,
876 (4th Cir.1992)). In Gillespie, the court found a community caretaking claim insufficient,
in part because the officers “called for backup, requested a K–9 unit to assist him, and started
to interview neighbors,” which made their community caretaking claim seem pretextual.

Gillespie, 332 F. Supp. 2d at 930. Similarly, Coleman never approached the driver of the
vehicle, and after making sure Clark was okay, he did not permit the car to leave, but rather
returned to his vehicle and called dispatch to run a check on Clark. During that time, several
other police vehicles arrived. Unlike in Thompson, also a vehicular search and seizure,

Coleman did not develop probable cause to prolong the interaction upon seizing the car.
Thompson, 2018 WL 6174690 at *9. Whatever reasons Coleman had for prolonging the stop,
they seem unrelated to his concern for Clark’s or the public’s wellbeing.
The facts of this case also fall short of justifying the emergency aid doctrine. The Fourth
Circuit has not yet held whether this doctrine can apply to searches and seizures of a vehicle,
but the Fifth Circuit has. See United States v. Toussaint, 838 F.3d 503, 507–08 (5th Cir. 2016)

(“No federal court of appeals has yet approved (nor has any rejected) the extension of this
doctrine to a vehicular stop. But there is no logical difficulty with extending the exception to
those particular situations.”). Assuming it is applicable, the circumstances at hand still fall short
of those required by the emergency aid doctrine. First, Coleman did not possess an objectively
reasonable belief that an emergency existed requiring immediate aid. Coleman’s only basis for
concern was that Clark had made an insulting gesture at an officer. There was no evidence of

injury or any kind of weapon. United States v. Ramage, No. 1:09CR61, 2009 WL 10677237,
at *8 (N.D. W.Va. July 13, 2009). There was no evidence of violence likely to continue.
Brigham City, 547 U.S. at 403. Even if there were sufficient evidence of an emergency, there
was no evidence of a situation requiring immediate aid. See Yengel, 711 F.3d at 397-400
(refusing to apply the emergency aid doctrine when officers are informed there is a grenade in
the house, because there was insufficient evidence that the grenade was an immediate threat);

Gillespie, 332 F. Supp. 2d at 927–28 (refusing to apply the emergency aid doctrine when
officers claimed they were concerned about crying children inside an apartment after they saw
two individuals escape from the balcony of that apartment: “Although the officers may have
believed that there were children in the apartment and been genuinely concerned about them,

their belief that this situation rose to the level of an emergency which required immediate entry is not
objectively reasonable.”)(emphasis in original). Plainly, the attenuated suspicion of unwellness
arising out of an offensive gesture does not pass constitutional muster. Moreover, even if the
emergency aid doctrine did apply, it could not justify the extended nature of the stop. United
States v. Moss, 963 F.2d 673, 678 (4th Cir.1992) (“[W]arrantless entry for emergency reasons
... cannot be used as the occasion for a general voyage of discovery unrelated to the purpose

of the entry.”).
Taking the evidence in total and giving Coleman and the jury’s verdict every
supportable inference, there is simply no basis in the law to justify the seizure of Clark on July
25, 2016. The evidence establishes Coleman effectuated a seizure of Clark without reasonable
suspicion of wrongdoing, and that his actions, under color of law, amount to a constitutional
violation. Because the evidence does not reveal any reasonable basis for the seizure of Clark

following his constitutionally protected speech, however crude, inappropriate, and
unwarranted it may have been, the jury’s verdict is contrary to law and must be set aside, and
the court will direct judgment be entered for Clark.
IV.
Because Clark seeks money damages, he must overcome Coleman’s qualified
immunity. Hunsberger v. Wood, 570 F.3d 546, 552 (4th Cir. 2009). “[G]overnment officials

performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). “Qualified immunity protects law enforcement officers from ‘bad guesses in gray areas’

and ensures that they are liable only ‘for transgressing brightlines.’” Phillips v. Peddle, 7 F.
App’x 175, 178 (4th Cir. 2001) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992).) To evaluate qualified immunity claims, the Fourth Circuit has adopted a two-step
analysis: (1) Whether a clearly established right has been violated, and (2) whether a reasonable
person in the officer’s position “would have known that the officer’s conduct would violate
that right.” Id. As the court holds that pulling over a vehicle without reasonable suspicion of

criminal activity or a valid claim of under any established Fourth Amendment exception
violates a clearly established right, it must proceed to the second step of the analysis.
The crux of the second prong of this analysis is whether a reasonable officer would
have known he cannot pull over a vehicle based on nothing more than the passenger making
an insulting gesture at him. The inquiry hinges on “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted,” which requires the court

to establish the contours of established law at the time. Saucier v. Katz, 533 U.S. 194, 202
(2001)); Smith v. Ray, 855 F. Supp. 2d 569, 578 (E.D. Va. 2012), aff’d, 781 F.3d 95 (4th Cir.
2015) (“This pure question of law turns on the ‘objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was taken.’”)
(quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). The established law must then be applied
to the specific facts of the case, to assess the reasonableness of the officer’s actions. While the

test is an objective one, “the immunity inquiry must be filtered through the lens of the officer’s
perceptions at the time of the incident in question.” Rowland v. Perry, 41 F.3d 167, 173 (4th
Cir. 1994).
Although the Fourth Circuit has yet to rule on these specific facts, the court’s review

of the established law is not so limited. “In determining whether a right is clearly established,
it is not necessary for a court to have previously considered the exact facts at issue, or that
there be a case involving ‘fundamentally similar’ facts, so long as ‘in light of the pre-existing
law the unlawfulness [is] apparent.’” Garcia v. Montgomery Cty., Maryland, 145 F. Supp. 3d
492, 505–06 (D. Md. 2015) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002); see also Buckley
v. Rogerson, 133 F.3d 1125, 1129 (8th Cir. 1998) (“In order to determine whether a right is

clearly established, it is not necessary that the Supreme Court has directly addressed the issue,
nor does the precise action or omission in question need to have been held unlawful. In the
absence of binding precedent, a court should look to all available decisional law, including
decisions of state courts, other circuits, and district courts.”) (citations omitted). Indeed,
“officials can still be on notice that their conduct violates established law even in novel factual
circumstances,” as long as they had “fair warning” that their conduct was unconstitutional.

Pelzer, 536 U.S. at 740–41.
At summary judgment, the court held that Coleman’s claim of qualified immunity did
not withstand scrutiny and would be denied. It found that “even if Plaintiff did “gig”5
Coleman, [] the law clearly establishes that a traffic stop under those circumstances would not
comport with the First or Fourth Amendments.” Clark v. Coleman, 335 F. Supp. 3d 818, 828
(W.D. Va. 2018). Although Coleman renewed his qualified immunity claim at trial, the court

5 The court understands this term to mean showing the middle finger.
finds no new basis on which to find qualified immunity applies to the unlawful seizure. The
court thoroughly evaluated the argument that qualified immunity should apply to Coleman’s
assertion that Clark’s insulting gesture gave rise to reasonable articulable suspicion of a crime.

Id. Following trial, the court must address whether Coleman’s public safety concern, though
insufficient to give rise to a valid community caretaking or emergency aid claim, is protected
by qualified immunity. In other words, does Clark have a clearly established right against
seizure by an officer who is concerned about his own welfare and the welfare of others simply
because he made an offensive gesture? The court finds that he does.
It is axiomatic that officers are on abundant notice of stringent free speech protections.

Gestures intended to communicate ideas are protected speech under the First Amendment of
the Constitution, subject to strict limitations. Terminiello v. City of Chicago, 337 U.S. 1, 4
(1949) (“Speech is often provocative and challenging . . .[But it] is nevertheless protected
against censorship or punishment, unless shown likely to produce a clear and present danger
of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”).
“Fighting words” are not protected. City of Houston v. Hill, 482 U.S. 451 (1987). The Supreme

Court has held on numerous occasions that the “First Amendment protects a significant
amount of verbal criticism and challenge directed at police officers.” Hill, 482 U.S. at 461. It
has said that “[t]he freedom of individuals verbally to oppose or challenge police action
without thereby risking arrest is one of the principal characteristics by which we distinguish a
free nation from a police state.” Id. at 463. In his concurring opinion, Justice Powell suggested
that “even the ‘fighting words’ exception recognized in Chaplinsky . . . might require a

narrower application in cases involving words addressed to a police officer, because ‘a properly
trained officer may reasonably be expected to exercise a higher degree of restraint’ than the
average citizen, and thus be less likely to respond belligerently to ‘fighting words.’” Id. at 462
(quoting Lewis v. City of New Orleans, 415 U.S. 130, 135(1974); Chaplinsky v. New

Hampshire, 315 U.S. 568 (1942)). Officers must surmount a high constitutional bar to interpret
expression as giving rise to police action, even under their protect and serve duties.
Coleman cannot make a colorable claim that presenting the middle finger gives rise to
a reasonable concern for public safety. Courts across the country have refused to find that
offensive language or gestures rise to the level of fighting words that would cause a reasonable
officer concern about public safety. Clark, 335 F. Supp. 3d at 828. In fact, many have refused

to apply qualified immunity to parallel fact patterns. See, e.g., Nichols v. Chacon, 110 F. Supp.
2d 1099, 1103 (W.D. Ark. 2000), aff’d, 19 F. App’x 471 (8th Cir. 2001) (“This is far from the
first case in which a private citizen has either by words or gesture communicated an offensive
message to a law enforcement officer. Nor is much of this body of law of recent vintage.”);
Minard, 918 F.3d at 497 (stating “no matter how he slices it, Cruise-Gulyas’s crude gesture
could not provide that new justification,” for plaintiff’s seizure under any Fourth Amendment

theory); Stearns v. Clarkson, 615 F.3d 1278, 1283 (10th Cir. 2010) (denying qualified immunity
when an officer makes an arrest on an individual who was “loud, belligerent, smelled of
alcohol, and pointed his finger at Officer Venable while using profanity”); Duran v. City of
Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir. 1990) (“No less well established is the principle
that government officials in general, and police officers in particular, may not exercise their
authority for personal motives, particularly in response to real or perceived slights to their

dignity. Surely anyone who takes an oath of office knows—or should know—that much.”);
Patel v. Dennett, 389 F. Supp. 3d 888, 896 (D. Nev. 2018) (“And because it is clearly
established that a citizen has the First Amendment right to criticize officers, even with
profanity, Dennett is not entitled to qualified immunity on this claim.”). Indeed, similar to the

instant case, the Sixth Circuit in Sandul v. Larion, the court denied qualified immunity when
an officer detained an individual who “leaned out of the vehicle as it passed by the abortion
protesters and shouted ‘f—k you,’ and extended his middle finger to the group” in part
because the individual was the passenger, not the driver, and the car was far from the target
of the offensive behavior. 119 F.3d 1250, 1252 (6th Cir. 1997).
Moreover, Coleman’s claim for qualified immunity cannot rest on his concern for

Clark’s and the public’s wellbeing. Critically, Coleman had just seen Clark in court minutes
before where Clark appeared neither intoxicated nor dangerous. Moreover, as the vehicle’s
passenger, nothing about Clark’s insulting display, however repugnant, objectively suggests
any risk to public safety. Given the particular circumstances of this case, in which Coleman
had just observed Clark’s behavior in the courtroom minutes before the rude gesture, no
reasonable officer could have maintained an objectively reasonable concern for public safety

warranting a seizure under the Fourth Amendment.
V.
Although the verdict cannot stand, the court declines Clark’s motion for a partial new
trial on the issue of damages. “The granting of a new trial is a matter resting in the sound
discretion of the trial judge, and his action is not reviewable upon appeal except in the most
exceptional circumstances.” Wadsworth v. Clindon, 846 F.2d 265, 266 (4th Cir. 1988).
The court sees no reason to empanel a new jury on the issue of damages, because Clark
did not demonstrate at trial the existence of any compensable injury. The court has wide
discretion to decline a request for a partial new trial. Fabri v. The Hartford, 69 F. App’x 187,

192 (4th Cir. 2003) (stating that decisions to deny a new trial on the issue of damages are
reviewed for abuse of discretion). Clark indicates here that the jury did not reach the question
of damages in the instant case, because they resolved the matter for the defendant on the
reasonableness of the stop. Mem. in Supp. of Rule 50 and 59 Mots., ECF No. 142, at 6-7.
However, as Coleman contends, “[a] Rule 59(e) motion is neither a second bite at the apple
nor an opportunity for a litigant to raise issues it could have raised in the first instance prior

to entry of judgment.” Supp. Mem. in Opp’n to Rule 50 and 59 Mots., ECF No. 154, at 2
(citing OpenRisk, LLC v. MicroStrategy Servs. Corp., 876 F.3d 518, 529 (4th Cir. 2017)). Clark
has indicated no newly discovered evidence and so the court evaluates the request for a partial
new trial based on the record. The Supreme Court directs that “determination of whether a
new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in
the first instance of the judge who saw and heard the witnesses and has the feel of the case.”

Globe Liquor Co. v. San Roman 332 U.S. 571, 572 (1948). As the court has heard from all
witnesses and reviewed all evidence, it is fit to make a determination as to the existence of
compensable damages. In denying Clark’s motion for new trial on the issue of damages, the
court finds as a matter of law that Clark did not prove injury.
Based on the evidence submit at trial, the court finds that Clark has not presented any
evidence from which a jury could find the existence of compensable damages. From the outset,

Clark did not plead with any specificity an amount of compensable damages sought. At trial,
Clark conceded the briefness of the detention and minimality of the inconvenience. Tr. 12:12-
24. Clark claims he felt threatened but does not present any evidence of emotional distress.
Tr. 88:19-21. “A plaintiff seeking compensatory damages for emotional injuries cannot rely on

‘conclusory statements that the plaintiff suffered emotional distress [or] the mere fact that a
constitutional violation occurred,’ but, rather, ‘the testimony must establish that the plaintiff
suffered demonstrable emotional distress, which must be sufficiently articulated.’” Knussman
v. Maryland, 272 F.3d 625, 640 (4th Cir. 2001) (quoting Price v. City of Charlotte, 93 F.3d
1241, 1254 (4th Cir. 1996)). Although Clark claims he lost government contracts because his
security clearance was delayed, he presented no link between the traffic stop and any delay in

his security clearance beyond the wild speculation. Indeed, Clark conceded that there was no
public record of his encounter with Coleman beyond this lawsuit. Tr. 106:4-19; 107:8-25;
108:1-8; 112:6-18. As the Fourth Circuit has held, injury “experienced as a by-product of
litigation or the grievance process was not caused by ‘the constitutional deprivation itself’” and
is therefore not compensable. Id. at 641 (quoting Price, 93 F.3d at 1250).
In the absence of a compensable injury, the court is free to award nominal damages.

See Carey v. Phiphus, 425 U.S. 247, 248 (1978); Farrar v. Hobby 506 U.S. 103, 121 (1992)
(“Carey obligates a court to award nominal damages when a plaintiff establishes the violation
of [a constitutional right] but cannot prove actual injury”). Under common law, courts can
vindicate absolute rights through the award of a nominal sum of money, even without proof
of actual injury. Carey, 425 U.S. at 266. In doing so, “the law recognizes the importance to
organized society that those rights be scrupulously observed.” Id. The right against

unreasonable stops is such a right in that its existence “does not depend upon the merits of a
claimant’s substantive assertions.” Id. However, the brevity of the detention and the lack of
demonstrable injury warrants no more than nominal damages. See, e.g., Norwood v. Bain, 166
F.3d 243, 245 (4th Cir. 1999) (en banc) (concluding that plaintiffs who were unconstitutionally

searched and seized for a brief period of time were only entitled to nominal damages).
Punitive damages are not an issue in this case. Punitive damages under 42 U.S.C. § 1983
are appropriate “when the defendant’s conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected rights of
others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Here, no evidence was submitted to the jury
on which it could conclude that Coleman’s conduct was motivated by evil intent. To the

contrary, the only evidence on this point was that Coleman had no ill will towards Clark.
Insofar as there was testimony that Coleman was angry, even assuming the jury credited that
testimony, that anger was directed at Freeman, not Clark. Furthermore, assuming there was a
plan to “take down” Clark, there is no evidence whatsoever that Coleman was aware of any
such plan, much less a participant in conversations regarding any such a plan or a willing
participant in any such conspiracy.

Likewise, the evidence does not establish that Coleman’s actions amounted to “reckless
or callous indifference” to Clark’s federally protected rights. Id. The only evidence regarding
Coleman’s motives for his actions was his professed concern for Clark’s wellbeing, and the
evidence of a conspiracy to “take down” Clark simply does not implicate Coleman.6 Absent
any competent evidence that Coleman’s actions were motivated by anything other than a

6 The jury apparently credited Coleman’s testimony that, during his entire career, he has never known of anyone
to “flip off” a uniformed police officer unless the person was intoxicated or mentally ill. Because the court is
required to give all reasonable inferences to Coleman, the court is bound to accept that rationale.
misunderstanding of the limits of his constitutional authority, there is simply no basis to
submit the question of punitive damages to a jury.
The court may grant Clark attorney’s fees. To qualify for attorney’s fees, a party must

meet the definition of “prevailing party” under the civil rights attorney’s fees provision. 42
U.S.C.A. §1988. To be a “prevailing party,” a plaintiff must obtain an enforceable judgment
against defendant from whom fees are sought, which in this case, would be the judgment to
award Clark nominal damages. Farrar v. Hobby, 506 U.S. at 112-13. “A judgment for damages
in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the
plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would

not pay.” Id. In some instances, the court may not award the prevailing party attorney’s fees
if so granting would result in a windfall to said attorneys. Riverside v. Rivera, 466 U.S. 561,
580 (1986). “When a plaintiff recovers only nominal damages because of his failure to prove
an essential element of his claim for monetary relief, the only reasonable fee is usually no fee
at all. Farrar, 506 U.S. at 115 (internal citations omitted).
However, the Fourth Circuit has held “[b]ecause the Court in Farrar held that plaintiffs

recovering only nominal damages usually or often will not be entitled to an award of attorney’s
fees, it is clear that such plaintiffs will at least sometimes be entitled to a fee award.” Mercer
v. Duke Univ., 401 F.3d 199, 203 (4th Cir. 2005); see also Clark v. Sims, 28 F.3d 420, 424–25
(4th Cir. 1994) (remanding for district court to consider attorney’s fee request by plaintiff who
was awarded only nominal damages). In discerning nominal damage cases that do not warrant
attorney’s fees from the ones that do, the Fourth Circuit looks at factors identified by Justice

O’Connor in Farrar, including “‘the extent of relief, the significance of the legal issue on which
the plaintiff prevailed, and the public purpose served’ by the litigation.” Mercer, 401 F.3d at
204 (remanding for district court to consider attorney’s fee request by plaintiff who was
awarded only nominal damages).

Upon balancing the factors, the court finds plaintiff is eligible for attorney’s fees. The
first factor instructs the court to compare the amount of compensable damages sought to the
amount awarded. Id. at 206. While an award of nominal damages may appear limited relief,
Clark never specified the damages he sought, primarily seeking a liability finding,
condemnation of the officer’s behavior, and punitive damages. Tr. 12:12-24 (conceding that
compensable damages were limited but that a right was violated, requesting punitive damages).

The second factor “is concerned with the general legal importance of the issue on which the
plaintiff prevailed.” Mercer, 401 F.3d at 206 (holding that discrimination against woman is an
important legal issue). See, e.g., Maul v. Constan, 23 F.3d 143, 145 (7th Cir. 1994) (“[W]e
understand the second Farrar factor to address the legal import of the constitutional claim on
which plaintiff prevailed.”); Piper v. Oliver, 69 F.3d 875, 877 (8th Cir. 1995) (explaining that
the plaintiff’s “right to be free from illegal detention was a significant one”). An unreasonable

stop based on an insluting gesture implicates not one, but two constitutional violations, and
so this case is plainly of legal significance. The third factor evaluates the public purpose served
by the litigation, “as opposed to simply vindicating the plaintiff’s individual rights.” Mercer,
401 F.3d at 207. In Mercer, although the court found that the plaintiff “ultimately obtained
only limited success in her claim against Duke,” the precedential value of the case could extend
beyond the suit at hand. Id. at 208-09. Similarly, courts in this circuit have not had the

opportunity to determine the outer bounds of how the Fourth Amendment’s requirements of
reasonable suspicions interacts with First Amendment freedoms. That this court has had an
opportunity to resolve the matter helps guide both officer behavior and future judicial
determinations. See, e.g. Project Vote/Voting for Am., Inc. v. Dickerson, 444 F. App’x 660,

664 (4th Cir. 2011) (“Here, Plaintiffs successfully brought a meritorious civil rights claim to
prevent the enforcement of an unconstitutional government regulation in the public interest;
this is the very form of litigation Congress wished to encourage by enacting § 1988.”); Daly v.
Hill, 790 F.2d 1071, 1084 (4th Cir.1986) ( “[Section] 1988 is intended to encourage [civil rights
plaintiffs] to bring suit by shifting the costs of litigation to defendants who have been found
to be wrongdoers.”).

VI.
The jury’s verdict lacks a “legally sufficient evidentiary basis . . . .” Fed. R. Civ. P. 50(a).
Pursuant to Fed. R. Civ. P. 50(b), judgment will be entered for Clark. Pursuant to Rule 50(c)(1),
the court GRANTS Clark’s motion to set aside the jury verdict and enter a judgment in his
favor. The court DENIES Clark’s motion for a new trial on the issue of damages, instead
awarding Clark nominal damages of $1 and attorney’s fees.

The clerk is directed to forward a copy of this Memorandum Opinion and
accompanying Order to all counsel of record.
March 23, 2020
ENTERED:
Michael F. Digitally signed by Michael F. Urbanski
DN: cn=Michael F. Urbanski, o=Western
Urbanski D Cois utr ri tc , t e o mf aV ii lr =g min ii ka e, uo @u= vaU wn dit .e ud s cS ot uat re tss . gD ois vt ,r cic =t U S
____________________Da_te_: 20_20_.0_3.2_3 _15_:40_:0_3 -_04_'00_' ___
Hon. Michael F. Urbanski
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10691343. Public record. Not legal advice.