Bygum v. The City of Montgomery

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DEBORAH BYGUM, Administratrix of

the Estate of ERIC MITCHELL YOUNG,

deceased,

Plaintiff,

v. Civil Action No. 2:19-cv-00456

The CITY OF MONTGOMERY and

ROGER L. KING, individually

as a member of the Montgomery

Police Department,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is the motion for summary judgment of

defendants Roger L. King and City of Montgomery, filed June 2,

2020.

I. Background

This case involves the shooting of Eric Mitchell Young

(“Young”) by Officer Roger L. King (“Officer King”) on the

morning of February 11, 2019. Four causes of action remain in

this case: Excessive use of force under 42 U.S.C. § 1983 against

Officer King (Count I), battery against both Officer King and

the City of Montgomery (Count II), negligence against both

Officer King and the City of Montgomery (Count III), and

negligent hiring, training, and supervision against the City of

Montgomery (Count IV).1 See Amend. Compl., ECF No. 30.

In the early morning hours of February 11, 2019,

Officer King, an officer for the City of Montgomery Police

Department, was on night duty at the police station in

Montgomery, West Virginia, when he saw a disturbance on the

live-feed surveillance video of the alleyway behind the police

station. King Statement 4, ECF No. 64-1.2 He observed Young on

the video attempting to open a locked police cruiser behind the

station; shouting obscenities, like how “he’s gonna’ f*ckin’

kill everybody;” and talking to himself. Id. at 4, 7; see also

King Dep. 51, ECF No. 94-2. He notified the police dispatcher

of Young’s behavior and exited the police station to pursue

Young by foot. See King Statement 4.

Officer King found Young in a small car shed next to

the station. Id. Officer King instructed Young to come over to

him, but Young walked away. Id. Officer King, with his taser

now out and at his side, circled the police station to try to

cut off Young at the front of the station. Id. at 4, 8.

1 The complaint also alleges three causes of action against

Officer John Michael Hess, Sr. and the City of Smithers, who

have since been dismissed with prejudice. ECF No. 87.

2 The King Statement is the one that was given by him to

investigating officers within hours of the event described.

Ultimately, Officer King, 6’2” and between 180 and 185 pounds,

King Dep. 113, confronted Young, 5’7” and 166 pounds, Autopsy

Report 2, ECF No. 94-6, in front of Montgomery City Hall, where

he told Young to get onto the ground. King Statement 4.3 Young

told Officer King “to get the f*ck out of his face” and

continued walking away with Officer King in pursuit. Id.

During the entire pursuit, Young behaved erratically.

He yelled “about Satan and the Lord;” claimed that “he was Satan

. . . in like a demonic voice;” repeatedly told Officer King “to

get the f*ck away from him or get the f*ck out of his face or

just something” like that; and generally talked, yelled, and

mumbled to himself. Id. at 4, 9; see also King Dep. 52. Young

turned and faced Officer King several times, occasionally

walking or lunging towards him. See King Statement 5, 9; King

Dep. 80, 98. In addition, Young repeatedly flailed his arms and

his shirt, which Officer King testified caused him to suspect

aggression and the potential that Young could be reaching for a

firearm in his waistband. King Statement 5, 15; King Dep. 52,

61. But Officer King never saw a weapon in Young’s waistband

and never saw Young wield a weapon. King Statement 5; King Dep.

3 Defendants submitted surveillance footage that allegedly

captures the encounter from this point forward. See ECF Nos.

64-4, 74. For purposes of summary judgment, the court finds the

video of no value because of its poor quality.

40-41.4 Officer King repeatedly commanded Young to get on the

ground, but Young refused. King Statement 5, 15.

During one of Young’s advances, Officer King fired his

taser. Id. at 5, 8-9; King Dep. 43, 52-53. Although Officer

King believed he hit Young in the chest, Young pulled the taser

prongs from his body and seemed unaffected. King Statement 5,

9, 15; King Dep. 43, 53, 97. Officer King testified that this

caused him to believe that Young was under the influence of a

substance that was blocking his pain receptors. King Dep. 43,

53, 73; see King Statement 15. However, Officer King could not

confirm that the taser prongs actually connected with Young’s

skin or whether the taser simply malfunctioned. King Dep. 53.

Indeed, the autopsy report does not note any markings consistent

with taser wounds. See Autopsy Report. Officer King notified

the police dispatcher about the taser’s ineffectiveness and

continued following Young from a distance. King Statement 5.

After firing his taser, Officer King drew his firearm

with mounted flashlight in one hand while still carrying the

taser in the other. King Statement 9-10; King Dep. 63. Even

though the taser did not have another cartridge to fire, Officer

4 Young had an unopened pocketknife on his person, clipped to his

pocket, of which Officer King was unaware until after the

shooting. King Statement 12

King still threatened to tase Young to convince him to get on

the ground. King Statement 5, 16. Young did not comply. Id.

at 5. The pursuit ended when Officer King fired five bullets at

Young, four of which hit and killed Young. Id. at 5-6; King

Dep. 107. The parties dispute the circumstances surrounding the

shooting.

Officer King testified that Young stood about 20 feet

away when Young turned to face him. King Dep. 81. According to

Officer King:

And I told him, I said, man, just get down on the

ground, please. I’m . . . I’m begging you to get down

on the ground. And he keeps telling me something

about they all hate him or something. I told him, I

said, we’ll work this out. We’ll figure this out.

And that’s when he started yelling at me and like just

his whole entire demeanor just changed and that’s

whenever he charged at me and . . . I shot him.

King Statement 5 (ellipses in original); see also id. at 13, 15;

King Dep. 52, 63, 80, 106-07. Officer King also recalled that

Young kept saying “just shoot me.” King Statement 11. Officer

King stated that he was concerned he could fall and lose his

firearm if he backpedaled because there was a curb behind him,

and that he feared for his life, so he opened fire when Young

had closed the distance to approximately 8 to 10 feet. See id.

at 11, 15; King Dep. 40, 64, 79-80.

Specifically in regards to the respective positions of

Officer King and Young during the shooting, Officer King’s

statement taken a few hours after the shooting provides the

following account:

Q: Do you know how many times you shot?

A: I thought I shot him four. I thought three or four

times. I can’t remember.

Q: Ok.

A: It didn’t stop him.

Q: He kept coming after you shot?

A: I shot twice, I remember, and he just kept coming

and then he turned around and he turned around again

and that’s when I thought he was gonna’ reach or

something and I shot one more and that’s when he fell.

[inaudible] . . . he fell, I went to roll him over and

tried to help.

. . .

A: . . . When he fell, he fell on his . . . he fell on

his . . . on his back and he was . . . his legs was

facing towards Kanawha side and his head was my way.

King Statement at 5-6, 11.

At his deposition a year later, Officer King testified

that Young when shot “walked a good distance” and then

collapsed:

All shots were fired when [Young] was charging . . . .

. . .

Once I shot, he stood completely straight up, turned

completely around away from me, and walked a good

distance. And then that’s when he collapsed against

the fence line.

King Dep. 106-07.

Plaintiff’s expert forensic reconstructionist, Jeremy

J. Bauer, Ph.D., disagrees with Officer King’s account.5 In

reconstructing the shooting, Dr. Bauer considered, inter alia,

the location of bullet casings ejected from Officer King’s

firearm that fixed his location in the middle of the street when

he fired the shots, the location and entry angles of Young’s

bullet wounds, the location of two bullets that struck the house

behind Young, Young’s location and position of rest, and Officer

King’s investigatory statement taken within hours of the

shooting and his deposition testimony from this case taken

slightly over one year later. See Bauer Report 2-5, ECF No. 64-

4; Bauer Suppl. Report 1-3, ECF No. 94-3.

From that information, Dr. Bauer reconstructed the

shooting to determine Young’s body positioning and the

respective positions of Officer King and Young during the

shooting. See Bauer Suppl. Report 5, Fig. 4 (visualization of

reconstruction). First, with respect to Young’s body

positioning during the shooting, Dr. Bauer found that one

bullet’s path struck Young from the front while he was standing

5 Defendants insist that Dr. Bauer’s opinions as they relate to

the distance between Officer King and Young during the shooting

are inadmissible and thus cannot be considered by the court.

Defs. Reply 8, ECF No. 96. Defendants also moved for an order

in limine to that effect. See ECF No. 97. The court disagrees

and will deny defendants’ motion in limine in a separate order.

upright and that the paths of the remaining three that struck

him “progressed from [Young’s] left to his right” and “traveled

downward and to the left.” Id. at 4; see also id. at 4, Fig. 3.

“Therefore,” Dr. Bauer stated, “Mr. Young was rotat[ing] to his

right with respect to Officer King when he was struck with” the

last three bullets. Id.; see also id. at 5, Fig. 4. Dr. Bauer

reasoned that this “directional consistency is demonstrative of

shots that were fired around the same time as the body being

struck was rotating and falling,” with the frontal bullet fired

first and the remaining three fired in succession. See id. at

4; see also id. at 5, Fig. 4. Dr. Bauer believed that the

rotation of Young’s body is consistent with Officer King’s

statement that Young fell on his back and died with his head

facing Officer King. See id. at 6; see also King Statement 11.

Second, Dr. Bauer considered Officer King’s location

during the shooting. Dr. Bauer found that one of the “bullet[s]

that struck the front of the house [behind Young] also likely

passed through Mr. Young.” Bauer Suppl. Report 4. “The bullet

path most consistent with” that shot is the path of the first

bullet that struck Young from the front while he was standing

upright. See id.; see also id. at 5, Fig. 4. And “[t]o produce

this bullet path Officer King would have been standing near

where the east-most bullet casing was found, approximately 50

feet from Mr. Young at the time the bullet was fired.” Id. at

4; see also id. at 5, Fig. 4 and Fig. 4 caption. With Officer

King firing the first bullet at the site of the easternmost

casing 50 feet from Young’s location of rest, Dr. Bauer found

that the bullet paths of Young’s three remaining wounds, which

were sustained in progression, correspond with the locations of

the remaining bullet casings advancing from east to west. See

id. at 4; see also id. at 5, Fig. 4 and Fig. 4 caption. Thus,

Dr. Bauer found that Officer King fired his weapon while

“mov[ing] in an east-west direction,” firing the first bullet 50

feet from Young and the last bullet “likely 25 feet from Mr.

Young.” See id. at 4-5; see also id. at 5, Fig. 4.

Third, turning to Young’s location during the

shooting, Dr. Bauer credited Officer King’s statement given

within hours of the shooting, where Officer King suggested that

Young fell and died at his location of rest after the last shot.

Id. at 4 (citing King Statement 6). Dr. Bauer marked Young’s

location of rest at the same spot Officer King located Young’s

resting spot. Compare id. at 5, Fig. 4, with King Dep. 134-38

(referencing Ex. 6 to King Dep., last page of ECF No. 94-2).

Moreover, Dr. Bauer opined that a relatively stationary Young

falling at his location of rest is consistent with the bullet

and wound evidence described above. See id. at 4; see also id.

at 5, Fig. 4. In other words, Dr. Bauer opined that Young stood

relatively stationary while Officer King opened fire 50 feet

away and continued firing while advancing to 25 feet from Young.

See id. 4-6; see also id. at 5, Fig. 4.

Thus, Dr. Bauer concludes as follows, in relevant

part:

1) Mr. Young was between 25-50’ away from Officer King

when each of the four bullets struck him, inconsistent

with Officer King’s statement claiming he was 8 feet

away [from] Mr. Young when he fired at Mr. Young;

2) Mr. Young was likely 50 feet away from Officer King

and facing Officer King when Mr. Young was shot in the

left side of his chest;

3) Mr. Young was standing on the corner of 3rd Ave.

and Jefferson St. and rotating to his right with

respect to Officer King, when the remaining 3 bullets

struck Mr. Young. The evidence is inconsistent with

Mr. Young actively charging toward Officer King when

Mr. Young was shot . . . .

Id. at 6.

The report and Dr. Bauer’s testimony further detail

that while Young was not running or charging at Officer King,

Dr. Bauer “[cannot] eliminate whether or not [Young] was moving

forward or walking backward.” Bauer Dep. 30, ECF No. 116-6.

Dr. Bauer opines that Officer King, on the other hand, advanced

on Young in an approximate 42-foot leftward arc, firing the

first shot from about 50 feet away and the last shot from about

25 feet away. See Bauer Suppl. Report at 5, Fig. 4; see also

id. at 4-6; Bauer Report 10, Fig. 9.

Now, defendants move for summary judgment on all

counts.

II. Standard of Review

Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “Material” facts are those necessary to

establish the elements of a party’s cause of action. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News

& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010). A “genuine” dispute of material fact

exists if, in viewing the record and all reasonable inferences

drawn therefrom in a light most favorable to the non-moving

party, a reasonable fact-finder could return a verdict for the

non-moving party. Anderson, 477 U.S. at 248.

Inferences that are “drawn from the underlying facts

. . . must be viewed in the light most favorable to the party

opposing the motion.” United States v. Diebold, Inc., 369 U.S.

654, 655 (1962). A party is entitled to summary judgment if the

record, as a whole, could not lead a rational trier of fact to

find for the non-moving party. Williams v. Griffin, 952 F.2d

820, 823 (4th Cir. 1991). Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable

fact-finder to return a verdict in favor of the non-moving

party. Anderson, 477 U.S. at 248.

III. Discussion

A. Section 1983 -- Excessive force

Qualified immunity is an affirmative defense which

“balances two important interests -- the need to hold public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity

“protects from liability officers who commit constitutional

violations, but whose conduct does not violate clearly

established statutory or constitutional rights known to a

reasonable person.” Wilson v. Prince George’s County, 893 F.3d

213, 219 (4th Cir 2018). “The burden of proving qualified

immunity rests on the party seeking to invoke it.” Id.

The court applies a two-pronged approach to assess

whether an officer is entitled to qualified immunity. Id.

(citing Saucier v. Katz, 533 U.S. 194 (2001), and Pearson, 555

U.S. 223). First, the court determines “whether the facts

alleged or shown, taken in the light most favorable to the

plaintiff, establish that the officer’s conduct violated the

plaintiff’s constitutional right.” Id. (quoting Saucier, 533

U.S. at 201). If the court finds a violation of the plaintiff’s

constitutional right, the court must determine whether that

right was “clearly established” at the time of the incident.

Id. (quoting Saucier, 533 U.S. at 201). In this case, Officer

King argues that he is entitled to summary judgment under both

qualified immunity prongs.

1. Prong one -- Whether Officer King’s conduct

violated the Fourth Amendment

The court first considers whether the facts, viewed in

the light most favorable to plaintiff, show that Officer King

violated Young’s right to be free from excessive force under the

Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394-95

(1989) (finding that Fourth Amendment confers right of free

citizens to be free from excessive force “in the context of an

arrest or investigatory stop”). Officer King’s use of force is

evaluated under an “objective reasonableness” standard. Wilson

v. Prince George’s County, 893 F.3d at 219. Applying that

standard “requires careful attention to the facts and

circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate

threat to the safety of the officers or others and whether he is

actively resisting arrest or attempting to evade arrest by

flight.” Gray-Hopkins v. Prince George’s County, 309 F.3d 224,

231 (4th Cir. 2002) (quoting Graham, 490 U.S. at 396); see also

Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (directing courts to

consider the “totality of the circumstances”). The court must

take the viewpoint “of a reasonable officer on the scene, and

the use of hindsight must be avoided.” Id. (citing Garner, 471

U.S. at 8-9).

In this case, Officer King indisputably used lethal or

deadly force. The Fourth Circuit recounts as follows regarding

lethal force:

The “intrusiveness of a seizure by means of deadly

force is unmatched,” and a police officer may only

employ such force where he “has probable cause to

believe that the suspect poses a threat of serious

physical harm, either to the officer or to others.”

If an individual “poses no immediate threat to the

officer and no threat to others, the harm resulting

from failing to apprehend him does not justify the use

of deadly force to do so.”

Streater v. Wilson, 565 F. App’x 208, 211 (4th Cir. 2014)

(quoting Garner, 471 U.S. at 9, 11).

The parties dispute the facts surrounding Officer

King’s lethal shooting of Young, particularly in regards to the

respective positions of Officer King and Young as detailed

above. But viewing the facts in plaintiff’s favor reveals that

Officer King, who was noticeably larger than Young, opened fire

while Young was 50 feet away, stationary, not wielding a weapon,

and not known to be carrying a weapon. He then fired four more

bullets while advancing 42 feet in a leftward arc towards Young,

firing the last bullet 25 feet away from Young. Young began to

fall to the ground after the first shot. Officer King had

probable cause to believe Young had committed several non-

violent misdemeanors that night, see King Dep. 82-83 (testifying

that all suspected crimes were non-violent misdemeanors), see

also id. at 74 (stating he did not know who Young was

otherwise), and that Young was attempting to evade arrest by

flight. There is no evidence that anyone else was in the area

at the time.

Applying the objective reasonableness standard to the

material “facts and circumstances of [this] particular case,”

Gray-Hopkins, 309 F.3d at 231, a reasonable jury could readily

conclude that Officer King employed objectively excessive force

in violation of the Fourth Amendment. It could be found that

Young was standing still 50 feet away from Officer King; was

emptyhanded; was noticeably smaller than Officer King; and posed

no threat to Officer King or others. Officer King nevertheless

opened fire and continued firing as he advanced to a position 25

feet from Young, while Young was falling to the ground. By

comparison, the Fourth Circuit has found that an officer’s use

of lethal force was objectively unreasonable when the officer

shot an armed but nonthreatening suspect 20 feet away -- closer

than when Officer King stopped shooting the unarmed and

nonthreatening Young. See Wilson v. Prince George’s County, 893

F.3d at 220 (“A jury could determine that [the plaintiff],

standing 20 feet away and armed only with a pocket knife that he

was using solely against himself, did not pose an immediate

threat to [the defendant officer] or others, thereby rendering

[the defendant officer’s] use of lethal force unreasonable.”).

Officer King’s arguments to the contrary are

unavailing at this stage. Indeed, the factual underpinning for

nearly all of Officer King’s arguments is that Young charged at

Officer King, approaching him within 8 feet. See Defs. Mem.

Supp. 5-8, ECF No. 64; Defs. Reply 10-13. A jury may accept

that as true at trial; the court cannot on defendants’ summary

judgment motion.

Otherwise, Officer King contends that some of the

crimes allegedly committed by Young were “major” rather than

“minor,” Defs. Reply 9, and that “Young was actively resisting

arrest by fleeing,” Defs. Mem. Supp. 6. But these contentions,

even assumed true, are greatly outweighed by facts found by Dr.

Bauer that Young was 50 feet away, stationary, and posing no

threat to King or others when King opened fire. Moreover,

neither the totality of Young’s flight nor the non-violent

nature of Young’s suspected offenses suggested an objective need

for lethal force. Accordingly, under these circumstances, a

reasonable jury could find that Officer King’s use of lethal

force violated the Fourth Amendment.

2. Prong two -- Whether Young’s Fourth Amendment right

was clearly established

“A right is ‘clearly established’ if it would be clear

to a reasonable officer that the alleged conduct is unlawful.”

Wilson v. Prince George’s County, 893 F.3d at 221 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Specifically,

“the contours of the right must be ‘sufficiently clear that

every reasonable official would [have understood] that what he

is doing violates that right.’” Id. (internal quotation marks

omitted and alteration in original) (quoting Reichle v. Howards,

566 U.S. 658, 664 (2012)). The contours of a right become clear

when an issue has “been authoritatively decided by the Supreme

Court, the appropriate United States Court of Appeals, or the

highest court of the state.” Wilson v. Layne, 141 F.3d 111, 114

(4th Cir. 1998) (quoting Wallace v. King, 626 F.2d 1157, 1161

(4th Cir. 1980)). “[A]lthough the exact conduct at issue need

not have been held to be unlawful in order for the law governing

an officer’s actions to be clearly established, the existing

authority must be such that the unlawfulness of the conduct is

manifest.” Id. (citing cases).

At the outset, this case possibly presents a rare

scenario where, having viewed the facts most favorably to

plaintiff, the more “general rules articulated in Graham and

Garner” clearly establish Young’s right. Wilson v. Prince

George’s County, 893 F.3d at 222 (citations partially omitted);

accord White v. Pauly, 137 S. Ct. 548, 552 (2017) (“Garner and

Graham do not by themselves create clearly established law

outside an obvious case.” (quotation marks omitted)). Relevant

here, Garner discussed the general principle that an officer may

not use lethal force against a “suspect [who] poses no immediate

threat to the officer and no threat to others.” 471 U.S. at 11.

An empty-handed, stationary, and isolated Young would present

such a nonthreatening suspect. See Clem v. Corbeau, 284 F.3d

543, 553-54 (4th Cir. 2002) (finding it obvious that an

officer’s use of lethal force was unreasonable where the suspect

was nondangerous because he was “unarmed, blinded, and

stumbling, in no condition to pose any threat to the officer”);

Wilson v. Prince George’s County, 893 F.3d at 220 (denying

qualified immunity where a police officer shot a suspect who was

“standing 20 feet away and armed only with a pocket knife that

he was using solely against himself[ and] did not pose an

immediate threat to [the officer] or others”); Gray-Hopkins, 309

F.3d at 231 (denying qualified immunity where a police officer

shot dead a suspect who “was standing still with his hands

raised over his head at the time of the fatal shot, . . . was

not resisting arrest, and . . . was not posing a threat to the

safety of the officers or others”); Streater, 565 F. App’x at

212 (denying qualified immunity where a police officer shot dead

a suspect who “was neither approaching nor threatening the

officers or civilians . . . and was not a suspect in [a violent

crime]”).

Again, it bears repeating: viewing the facts most

favorably to plaintiff, Young was 50 feet away, stationary, and

posing no immediate threat to King or others when King opened

fire, advanced on Young, and continued shooting while Young fell

to the ground. Under those circumstances, Young’s right to be

free from the use of lethal force was clearly established.

Officer King draws unconvincing comparisons to an

unpublished Fourth Circuit decision where the officer was found

to have reasonably tased, not shot, a fleeing, mentally ill

suspect, see Thomas v. Holly, 533 F. App’x 208 (4th Cir. 2013),

and to a per curiam Supreme Court decision where an officer was

found to have reasonably shot a woman known to be dangerous

wielding a kitchen knife within striking distance of another

person, see Kisela v. Hughes, 138 S. Ct. 1148, 1153-54 (2018)

(per curiam). Defs. Mem. Supp. 10-12. Those decisions are not

comparable to this case.

Accordingly, in view of the genuine dispute as to the

material facts respecting the shooting of Young, the court finds

that Officer King is not at this juncture entitled to qualified

immunity with respect to plaintiff’s § 1983 claim for excessive

force in violation of the Fourth Amendment.

B. Vicarious liability

Plaintiff alleges in the amended complaint that the

City of Montgomery is vicariously liable for the tortious

conduct of Officer King, under theories of battery (Count II)

and of negligence (Count III). See Amend. Compl. at ¶¶ 91, 98.6

6 In seeking summary judgment on the vicarious liability claims,

defendants simply incorporate their motion to dismiss on the

same matter, Defs. Mem. Supp. 12 (citing ECF No. 38), which the

court denied without prejudice, ECF No. 61. Likewise, plaintiff

Defendants chiefly argue, in relation to vicarious

liability for the battery claim, that West Virginia law has not

waived immunity as it relates to intentional torts. Section 29-

12A-4(b)(1) of the West Virginia Code makes clear that “[e]xcept

as provided in subsection (c), a political subdivision is not

liable in damages in a civil action for injury, death, or loss

to persons or property allegedly caused by any act or omission

of . . . an employee of the political subdivision in connection

with a governmental or proprietary function.” The West Virginia

Supreme Court of Appeals has clarified that this “general grant

of immunity” for political subdivisions includes both

intentional and unintentional acts. Zirkle v. Elkins Road

Public Service Dist., 655 S.E.2d 155, 160 (W. Va. 2007).

Subsection (c)(2) waives this immunity in relation to

injuries “caused by the negligent performance of acts by

[municipal] employees while acting within the scope of

employment.” Plaintiff argues that the court ought to look past

the formal “intentional label” in determining whether liability

is waived, citing the federal district court opinion of Conklin

v. Jefferson Cnty. Bd. Of Educ., 205 F. Supp. 3d 797, 818 (N.D.

W. Va. 2016).

simply incorporates her response to the motion to dismiss. Pl.

Resp. 22 (citing ECF No. 40).

In Mallamo v. Town of Rivesville, the Supreme Court of

Appeals of West Virginia held that a police officer’s alleged

participation in a conspiracy to conceal facts concerning a

shooting could not be a basis for liability because “conspiracy

is an intentional act, not a negligent one, [and] the

[municipality] would not be liable for any intentional

malfeasance on the part of [the officer].” 477 S.E.2d 525, 533-

34 (W. Va. 1996). In arriving at that conclusion, the court

emphasized that the legal definition of conspiracy involved

concerted action. Id.

Nor is Conklin to the contrary. The court in Conklin

held that the common-law claim for intentional infliction of

emotional distress does not necessarily require an intentional

act despite its label. See 205 F. Supp. 3d at 818. In other

words, the court’s holding was based on the fact that, despite

the name of the cause of action, the elements of intentional

infliction of emotional distress can be met by showing the

defendant acted with something less than intent, like

recklessness. See id.

Thus, the inquiry is whether a battery is necessarily

an intentional act. The West Virginia Supreme Court of Appeals

has expressly held that “[i]n order to be liable for a battery,

an actor must act with the intention of causing a harmful or

offensive contact with a person.” Syl. Pt. 8, W. Va. Fire &

Cas. Co. v. Stanley, 602 S.E.2d 483 (W. Va. 2004). Inasmuch as

battery requires an intentional act, the City of Montgomery is

immune from vicarious liability for Officer King’s alleged

battery.

Turning to vicarious liability of the City of

Montgomery for negligence, West Virginia Code § 29-12A-5

provides for specific instances where a municipality retains

immunity even if the claim arises out of the negligence of its

employee acting within the scope of his employment. See W. Va.

Code § 29-12A-4(c) (stating that the waiver of general immunity

is “[s]ubject to section[] 5 . . . of this article”). Relevant

here, section 29-12A-5(a)(5) provides that a municipality “is

immune from liability if a loss or claim results from . . . the

failure to provide, or the method of providing, police, law

enforcement or fire protection.”

The Supreme Court of Appeals explains that “‘the

method of providing police, law enforcement or fire protection’

[under section 29-12A-5(a)(5)] refers to the decision-making or

the planning process in developing a governmental policy,

including how that policy is to be performed.” Syl. Pt. 4,

Smith v. Burdette, 566 S.E.2d 614 (W. Va. 2002), overruled on

other grounds by Albert v. City of Wheeling, 792 S.E.2d 628 (W.

Va. 2016). The Supreme Court of Appeals further explains that

section 29-12A-5(a)(5) immunity extends to negligent acts taken

within the scope of employment, so long as the act taken was in

carrying out or in furtherance of a governmental policy. See

Syl. Pt. 4, Albert, 792 S.E.2d 628; see also Syl. Pt. 4, Beckley

v. Crabtree, 428 S.E.2d 317 (W. Va. 1993) (“Resolution of the

issue of whether a loss or claim occurs as a result of ‘the

method of providing police, law enforcement or fire protection’

requires determining whether the allegedly negligent act

resulted from the manner in which a formulated policy regarding

such protection was implemented.”).

Defendants argue that the City of Montgomery is immune

from vicarious liability for Officer King’s alleged negligence

because the negligence claim arises out of “the method of

providing” police protection under section 29-12A-5(a)(5). ECF

No. 38 at 5-6. “[D]uring the course of engaging in police

protection,” defendants reason, “an incident occurred resulting

in damage to [Young].” Id. at 6. Plaintiff responds that

“[section] 29-12A-5(a)(5) applies strictly to ‘policy’

decisions,” and “Young’s death was not the result of the

implementation of a formulated Montgomery Policy Department

policy related to how police protection is to be provided.” ECF

No. 40 at 5.7

Defendants read “method of providing police . . .

protection” too broadly. Instead, as plaintiffs contend, the

focus of the analysis is on “whether the allegedly negligent act

resulted from the manner in which a formulated policy regarding

such protection was implemented.” Syl. Pt. 4, Crabtree, 428

S.E.2d 317. For instance, in Albert, the Supreme Court of

Appeals found that section 29-12A-5(a)(5) barred a claim against

a city for a “negligent failure . . . to maintain, inspect and

otherwise keep its waterworks and fire hydrant system fully

operable.” 792 S.E.2d at 632-33. In doing so, the Supreme

Court of Appeals cautioned against “attempt[s] to separate the

provision of water services necessary to battle fires from the

firefighting itself.” Id. at 634. Indeed, the Supreme Court of

Appeals in Albert rejected the plaintiff’s attempt to recast her

claim for negligent maintenance of a fire hydrant’s water supply

as negligent firefighting itself. See id. at 633.

7 The court notes that the Supreme Court of Appeals occasionally

analyzes section 29-12A-5(a)(5) through the lens of the public

duty doctrine, which is a common-law doctrine applicable to

claims against political subdivisions. See generally Bowden v.

Monroe Cnty. Comm’n, 800 S.E.2d 252 (W. Va. 2017). Neither

party raises the public duty doctrine issue here, so the court

does not address it and instead proceeds with a statutory

analysis.

The reasoning in Albert applies equally to the

policing context. Plaintiff’s negligence claim goes to

“[policing] itself,” rather than the governmental policy for

“the provision of [police] services necessary to [respond to

suspected crimes].” Id. Plaintiff’s negligence claim against

Officer King is not for damages caused by negligence in carrying

out some governmental policy of the City of Montgomery.

Instead, plaintiff claims that Officer King was negligent in

carrying out his discretionary actions in policing when he shot

Young. The Supreme Court of Appeal’s explication in Mallamo of

the distinction between carrying out governmental policy and

individual negligence of police officers and fire fighters is

instructive:

[The method of providing police or fire protection] is

aimed at such basic matters as the type and number of

fire trucks and police cars considered necessary for

the operation of the respective departments; how many

personnel might be required; how many and where police

patrol cars are to operate; the placement and supply

of fire hydrants; and the selection of equipment

options. Accordingly, a city is immunized from such

claims as a burglary could have been prevented if

additional police cars had been on patrol, or a house

could have been saved if more or better fire equipment

had been purchased. We do not believe [the applicable

statute] is so broad as to immunize a city on every

aspect of negligent police and fire department

operations. Should firemen negligently go to the

wrong house and chop a hole in the roof thereof, we do

not believe the city has immunity therefor on the

basis the negligent act was a part of the method of

fire protection.

Mallamo, 477 S.E.2d at 626 (quoting Jackson v. City of Kansas

City, 680 P.2d 877, 890 (Kan. 1984)). Thus, the City of

Montgomery is not immune from vicarious liability for the

alleged negligence of Officer King.

C. Negligent hiring, training, and supervision

Plaintiff’s Count IV alleges that the City of

Montgomery negligently hired, trained, and supervised Officer

King.8 Under West Virginia law, to recover under a theory of

negligent training or supervision, a plaintiff must show that,

“[the municipality] failed to properly [train or] supervise an

employee officer and, as a result, the employee officer

proximately caused injury to the plaintiff.” Woods v. Town of

Danville, 712 F. Supp. 2d 502, 515 (S.D. W. Va. 2010) (citing

Taylor v. Cabell Huntington Hosp., Inc., 538 S.E.2d 719 (W. Va.

2000)). Negligent training and supervision (and hiring, had it

survived) are founded on traditional negligence principles of

breach of a duty and proximate causation of damages. See id. at

8 Plaintiff appears to have dropped the claim of negligent

hiring, as it did not make any arguments to that effect in its

response to the motion for summary judgment. Thus, defendants

are entitled to summary judgment to the extent Count IV involves

negligent hiring.

515. Defendants contend that plaintiff has no evidence to

support a finding of negligent training or supervision.

Plaintiff’s theory of negligent training and

supervision is that the Montgomery Police Department does not

test its officers on department policies or procedures. This

was evidenced by the 30(b)(6) deposition of Chief of the

Montgomery Police Department, who testified that the department

does not test its officers. Workman Dep. 18:1-24, ECF No. 94-7.

Officer King also testified that when he was hired, he was given

the policies and procedures “to take home, and [review].” King

Dep. 25:13-26:4.

Plaintiff provides no evidence or case law to arrive

at an applicable standard of care or duty owed by the Montgomery

Police Department. It is insufficient to merely assert that “a

jury could conclude that Officer King’s lack of knowledge of

Montgomery PD policies and procedures . . . proximately caused

Mr. Young’s death,” Pls.’ Resp. 23, without setting out a prima

facie case for negligence. Furthermore, plaintiff has adduced

no evidence to causally link a lack of testing to Young’s death.

It is not enough baldly to say that lack of testing is, ipso

facto, negligent training or supervision. See Restatement

(Second) of Torts § 433B cmt. a (Am. Law Inst. 1965). Thus,

summary judgment in favor of the City of Montgomery is warranted

as to Count IV.

D. Battery and negligence

Under West Virginia law, “[a]n actor is subject to

liability to another for battery if (a) he acts intending to

cause a harmful or offensive contact with the person of the

other or a third person, or an imminent apprehension of such a

contact, and (b) a harmful contact with the person of the other

directly or indirectly results.” Tolliver v. Kroger Co., 201 W.

Va. 509, 518 (1997). Whether Officer King’s conduct amounted to

a battery under the definition in West Virginia law is an issue

of disputed material fact.

Defendants argue that Officer King is entitled to

immunity under West Virginia Code § 29-12A-5(b), which

establishes immunity for employees of political subdivisions,

except where one of three exceptions apply: “(1) His or her acts

or omissions were manifestly outside the scope of employment or

official responsibilities; (2) His or her acts or omissions were

with malicious purpose, in bad faith, or in a wanton or reckless

manner; or (3) Liability is expressly imposed upon the employee

by a provision of this code.” Defendants argue that plaintiff

has failed to produce evidence that any of the above exceptions

apply.

Plaintiff argues that Officer King is liable insofar

as his conduct was done “with malicious purpose, in bad faith,

or in a wanton or reckless manner.” Wanton or reckless behavior

under West Virginia law means that the person "has intentionally

done an act of an unreasonable character in disregard of a risk

known to him or so obvious that he must be taken to have been

aware of it, and so great as to make it highly probable that

harm would follow." Holsten v. Massey, 490 S.E.2d 864, 878 (W.

Va. 1997). A reasonable jury could conclude on the evidence in

the record that Officer King’s conduct crossed the threshold

into wantonness or recklessness, thus invoking the exception to

immunity contained in § 29-12A-5(b)(2). Thus, summary judgment

in favor of Officer King is not warranted as to Counts II and

III.

IV. Conclusion

For the foregoing reasons, it is ORDERED that

defendants Roger L. King and City of Montgomery’s motion for

summary judgment be, and hereby is, granted as to Count II

(battery) and Count IV (negligent supervision) as against the

City of Montgomery, denied as to Count III (negligence) as

against the City of Montgomery, and denied as to all Counts as

it relates to Officer King.

The Clerk is directed to transmit this memorandum

opinion and order to all counsel of record.

ENTER: September 30, 2021

sl Mihi ree

Jo . Copenhaver, Jr.

Senior United States District Judge

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