Quinn v. Zerkle

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

TAYLOR QUINN,

Plaintiff,

v. CIVIL ACTION NO. 2:21-cv-00421

LT. CHRISTOPHER K. ZERKLE, et al.,

Defendants.

MARK TOON, et. al.,

Plaintiffs,

v. CIVIL ACTION NO. 2:21-cv-00427

LT. CHRISTOPHER K. ZERKLE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon

Kay and Deputy Jamie Miller’s Motion to Dismiss [as to Plaintiff Taylor Quinn] (Document 4 in

2:21-cv-421), Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay and Deputy

Jamie Miller’s Memorandum of Law in Support of Their Motion to Dismiss (Document 5), and

Plaintiff Quinn’s Response in Opposition to Defendants Sgt. Paxton Lively, Sgt. Rick Keglor,

Deputy Brandon Kay and Deputy Jamie Miller’s Motion to Dismiss (Document 6).

In addition, the Court has reviewed Defendant Lt. Christopher Zerkle’s Partial Motion to

Dismiss [as to Plaintiff Toon] (Document 8 in 2:21-cv-427), Defendant Lt. Christopher Zerkle’s

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Memorandum in Support of His Partial Motion to Dismiss (Document 9 in 2:21-cv-427),

Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller’s

Motion to Dismiss (Document 11 in 2:21-cv-427), Defendants Sgt. Paxton Lively, Sgt. Rick Keglor,

Deputy Brandon Kay and Deputy Jamie Miller’s Memorandum of Law in Support of Their Motion

to Dismiss (Document 12 in 2:21-cv-427), Plaintiff Toon’s Response in Opposition to Defendant

Lt. Christopher Zerkle’s Partial Motion to Dismiss (Document 15 in 2:21-cv-427), Plaintiff Toon’s

Response in Opposition to Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay

and Deputy Jamie Miller’s Motion to Dismiss (Document 22 in consolidated 2:21-cv-421),

Defendant Lt. Christopher Zerkle’s Reply to Plaintiff Mark Toon’s Response in Opposition to

Defendant Zerkle’s Partial Motion to Dismiss (Document 23), and Defendants Sgt. Paxton Lively,

Sgt. Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller’s Reply to Plaintiff’s Response

to Their Motion to Dismiss (Document 24).

For the reasons stated herein, the Court finds that Defendants Lively, Keglor, Kay, and

Miller’s motion should be granted as to Plaintiff Quinn’s claim for intentional infliction of

emotional distress and as to Plaintiff Toon’s official capacity claims, and denied as to all remaining

claims. The Court also finds that Defendant Zerkle’s partial motion as to Plaintiff Toon should

be granted in part and denied in part.

FACTUAL ALLEGATIONS

Plaintiff Taylor Quinn initiated her suit in the Circuit Court of Kanawha County, West

Virginia, on or about April 20, 2020. She named as Defendants Lt. Christopher K. Zerkle, the

West Virginia State Police, Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay, Deputy

Jamie Miller, and the Kanawha County Commission. In her Amended Complaint (Document 1-

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3), filed on or about July 19, 2021, she eliminated the claims against the West Virginia State Police

and the Kanawha County Commission. The Defendants removed the matter to federal court on

July 28, 2021.

Plaintiff Mark Toon, as Personal Representative of the Estate of Eric Toon, filed his

complaint on July 30, 2021, naming the same Defendants as Ms. Quinn. On September 7, 2021,

the Court entered a Memorandum Opinion and Order (Document 13), granting a motion to

consolidate the two actions. Because the two complaints arose from the same incident and contain

overlapping factual and legal claims, the Court will summarize the factual allegations jointly,

making note of those allegations contained in only one of the complaints.

On August 1, 2019, Defendant Zerkle responded to a call, unrelated to Mr. Toon, in his

unmarked cruiser and was parked, partially blocking a road, without his lights flashing. Mr. Toon

and another person passed on a motorcycle. According to the Toon Complaint, Defendant Zerkle

allegedly indicated that Mr. Toon extended his middle finger as he passed. Defendant Zerkle

falsely claimed that Mr. Toon hit the left front tire of his cruiser and did not stop. Defendant

Zerkle initiated a high-speed chase through Charleston and onto the interstate. Mr. Toon returned

to the residence he shared with Ms. Quinn at 116 Lotus Drive and went to bed. No officers were

present or in immediate pursuit when he arrived at the residence. Sometime later in the morning,

approximately fourteen officers arrived in the area. One officer who responded to the residence

indicated that the earlier pursuit had been cancelled. A witness informed an officer that Mr. Toon

lived in a yellow trailer with a wood deck down the street, which officers identified as 116 Lotus

Drive. An officer found a motorcycle, helmet, and cell phone near the residence. Although a

canine officer previously had not alerted in the area, the dog subsequently signaled a “hit” based

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on the helmet and cell phone. According to the Toon Complaint, “nearly an hour” had passed

between the time that Defendant Zerkle initiated the chase and the time officers took possession

of the motorcycle. (Compl. at ¶ 26) (Document 1 in 2:21-cv-427.)

Defendant Miller decided that the officers “had enough to try and make entry.” (Id. at ¶

28; Quinn Compl. at ¶ 25.) Defendants Kay, Keglor, Lively, and Miller, together with the K-9

officer, breached the front door and made entry, without a warrant and without announcing

themselves as law enforcement.1 Defendant Zerkle remained outside the residence a short

distance away, watching. Mr. Toon jumped out a window armed with a rifle and landed on the

ground, where Defendant Zerkle shot him twice, killing him. Ms. Quinn followed him out the

window unarmed, and Defendant Zerkle shot her as well.2 She suffered serious injuries requiring

extensive hospitalization and has permanent injuries to her shoulder and nerve damage.

The Toon Complaint contains the following claims: Count I: 42 U.S.C. § 1983 - Retaliation

and Use of Excessive Force in Violation of the 1st Amendment of the United States Constitution,

as to Defendant Zerkle; Count II: 42 U.S.C. §1983 - Violation of the 4th Amendment of the United

States Constitution: Warrantless Entry and Excessive Force, as to Defendants Kay, Keglor, Lively,

Miller, and Zerkle;3 Count III: 42 U.S.C. § 1983 - Failure to Intervene in Violation of the 4th

Amendment of the United States Constitution, as to Defendants Kay, Keglor, Lively, Miller, and

1 The Quinn complaint does not contain an allegation stating that the officers failed to announce. It indicates that

the officers entered without a warrant, that they flushed the Plaintiffs out through the window, and that Ms. Quinn

was in fear for her life.

2 The Toon complaint does not contain allegations regarding Ms. Quinn’s shooting or injuries.

3 Although the title for Count 2 includes Defendant Zerkle, the allegations contained therein reference only

Defendants Kay, Keglor, Lively, and Miller. For example, Paragraph 50 of the Toon Complaint alleges that

“Defendants Kay, Keglor, Lively, and Miller were acting under color of law when they forcibly entered Eric Toon’s

home without a warrant.” (Toon Compl. at ¶ 50.) Paragraph 62, the final paragraph within the section for Count 2,

alleges: “These actions of Defendants Lively, Keglor, Kay, and Miller violated Eric Toon’s constitutional rights,

including, but not limited to, the right to be free from unreasonable searches and seizures and the right to due

process…” (Id.at ¶ 62.)

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Zerkle; and Count IV: 42 U.S.C. § 1983 - Violation of the 4th Amendment of the United States

Constitution: Excessive Force, as to Defendant Zerkle. The Quinn amended complaint alleges

the following claims: Count I: 42 U.S.C. §1983 – Violation of the 4th Amendment of the United

States Constitution: Excessive Force, as to Defendant Zerkle; Count II: 42 U.S.C. § 1983 –

Violation of the 4th Amendment of the United States Constitution: Warrantless Entry, as to

Defendants Lively, Keglor, Kay, and Miller; Count III: Battery, as to Defendant Zerkle; Count IV:

Trespass, as to Defendants Lively, Keglor, Kay, and Miller; and Count V: Extreme and Outrageous

Conduct; Emotional Distress, as to Defendants Lively, Keglor, Kay, and Miller.

STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or

pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.

P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,

550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid

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of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)

(internal quotation marks omitted).

The Court must “accept as true all of the factual allegations contained in the complaint.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual

inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,

244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the

assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,

the court need not “accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as

a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

To survive a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff

to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis, 588

F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate

facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.”

Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint

states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be

a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679.

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ARGUMENTS

Defendants Lively, Keglor, Kay, and Miller (the Kanawha Deputies) argue that their entry

into the residence did not violate the Fourth Amendment because they were in hot pursuit of Mr.

Toon, who they had been informed had struck a police cruiser, prompting a high-speed chase.

Although they recognize that the Plaintiffs contend that Defendant Zerkle fabricated the claim that

Mr. Toon had struck his cruiser, they argue that they acted properly based on the information they

were provided at the time. According to the Kanawha Deputies, “[b]ased on the underlying

crimes that were committed in Trooper Zerkle’s presence that were thereafter communicated to

the deputies, the immediate hot pursuit of Mr. Toon to the area around the residence, and the K9

alert at the front door of the residence, the deputies’ warrantless entry into the residence to

apprehend Mr. Toon was not in violation of the Fourth Amendment.” (Document 5 in 2:21-cv-

421 at 10.) They contend that precedent from the West Virginia Supreme Court of Appeals

establishes that warrantless entry into a residence after searching the vicinity for around an hour is

permissible. Even if the Court finds that the entry does constitute a Fourth Amendment violation,

they argue that they are entitled to qualified immunity because “there is no federal case law or case

law in West Virginia that clearly establishes that these deputies violated Ms. Quinn’s constitutional

rights in entering the residence without a warrant under the facts and circumstances of this case.”

(Id.at 12.) In addition, the Kanawha Deputies argue that Plaintiff Quinn’s amended complaint

does not establish that their actions caused her injuries, because she was shot by other officers

while attempting to flee through a window, and the existence of a warrant would have had no

impact. Further, they argue that the trespass claim should be dismissed because they were

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privileged to enter the residence as law enforcement officers in pursuit of a suspect. Finally, they

argue that the amended complaint does not plead sufficient facts to support the tort of outrage.

In response, Ms. Quinn argues that Supreme Court precedent establishes that warrantless

entry during pursuit requires continuous pursuit and violates the Fourth Amendment where the

pursuit was not continuous. She further argues that any threat to public safety was neutralized

because officers could control the motorcycle that Mr. Toon was alleged to have used to strike

Defendant Zerkle’s vehicle, eliminating access to the instrument of his alleged crimes. She

contends that the cases the Kanawha Deputies rely upon to argue that a constitutional violation

was not clearly established are distinguishable, while clear precedent closely aligns with the facts

presented herein. She argues that her escape through the window, prompted by her fear for her

life upon the warrantless entry of these Defendants, was reasonably foreseeable. She further

counters their assertion that their entry was privileged, arguing that warrantless entry is

presumptively unreasonable, and no exception applied under the facts alleged. Finally, she asserts

that she alleged conduct by these Defendants that violates norms of acceptable conduct, and those

allegations suffice to state a claim for the intentional infliction of emotional distress.

The Kanawha Deputies also move to dismiss Plaintiff Toon’s complaint based on similar

arguments that the entry and search were justified, that they are entitled to qualified immunity, and

that Defendant Zerkle’s shooting of Mr. Toon when he exited the house through a window with a

gun was not a foreseeable result caused by their entry to the home. They further argue that the

bystander liability claim contained in Count III should be dismissed because the entry did not

constitute a violation of a clearly established constitutional right such that officers present should

have known that officers were violating Mr. Toon’s constitutional rights. Finally, the Kanawha

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Deputies argue that the Toon complaint does not contain factual allegations to support a Monell

claim against them in their official capacities.

Plaintiff Toon concedes that the official capacity claims as to the Kanawha Deputies should

be dismissed. Plaintiff Toon, like Ms. Quinn, argues that no exception to the warrant requirement

applies to the facts alleged, and the entry and search were unlawful. He argues that clearly

established precedent precludes the claim of qualified immunity. He further argues that his exit

through the window and the subsequent shooting were foreseeable effects caused by the

warrantless entry, and indeed that the Defendants intended to flush the residents of the home out

through the window. Finally, he contends that his bystander liability claim should survive

because he has adequately alleged that the officers violated his clearly established rights, and no

officers present intervened despite observing those violations.

Defendant Zerkle moves to dismiss Plaintiff Toon’s claims against him in his official

capacity, duplicative claims, and, to the extent the Court finds that the Kanawha Deputies’ search

was reasonable, he seeks dismissal of Counts II and III related to the alleged warrantless entry.

He argues that he is not a “person” in his official capacity for purposes of 42 U.S.C. §1983. He

argues that he cannot be held liable for the warrantless entry or search of the residence because,

accepting the factual allegations in the complaint as true, he remained outside the home while other

officers entered. Finally, he argues that if the Court grants the Kanawha Deputies’ motions to

dismiss and concludes that the entry and search were reasonable, the claims for warrantless entry

and search and failure to intervene against him should likewise be dismissed.

Plaintiff Toon argues that Defendant Zerkle acted in concert with the Kanawha Deputies

in their search of the residence and was “the moving force animating the warrantless entry.”

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(Toon Resp. at 4, Document 15 in 2:21-cv-427.) He contends that Defendant Zerkle and the

Kanawha Deputies all intended that Mr. Toon “be ‘flushed out’ of the residence via the rear

bedroom window where Defendant Zerkle was waiting.” (Id.) He further argues that the

underlying search was unconstitutional and urges the Court to reject the motion to dismiss Counts

II and III as to Defendant Zerkle based on Defendant Zerkle’s expectation that the Kanawha

Deputies will successfully move to dismiss those claims.

DISCUSSION

A. Warrantless Entry – Kanawha Deputies

The Fourth Amendment protects people, and their “houses, papers, and effects” against

“unreasonable searches or seizures.” U.S. Const. amend. IV. “As that text makes clear, ‘the

ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Lange v. California, 141 S.

Ct. 2011, 2017 (2021) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). Intrusions

into private residences are subject to particular scrutiny, and “searches and seizures inside a home

without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586

(1980). The Fourth Amendment “prohibits the police from making a warrantless and

nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Id.at 576.

However, “the warrant requirement is subject to certain exceptions.” Brigham City, Utah v.

Stuart, 547 U.S. 398, 403 (2006).

“One important exception is for exigent circumstances.” Lange, 141 S.Ct. at 2017. The

exception is “case specific,” requiring courts to examine the circumstances to determine “whether

a now or never situation actually exists” to justify a warrantless search. Id. at 2018. The

Supreme Court has established that “hot pursuit” can be a type of exigent circumstance justifying

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warrantless entry into a residence. In United States v. Santana, the Court held that a suspect’s

“act of retreating into her house” could not “thwart an otherwise proper arrest” where police

initiated the arrest in public, finding officers justified in pursuing her into the home and conducting

a search of her person incident to arrest. 427 U.S. 38, 42 (1976). The Court further reasoned

that warrantless entry could be necessary in cases of hot pursuit because of the related concern that

the suspect who fled into a residence would destroy evidence if officers delayed entry while

obtaining a warrant. Id. at 43. However, the Supreme Court later rejected a hot-pursuit

justification for warrantless entry when “there was no immediate or continuous pursuit of the

petitioner from the scene of a crime,” where police responded to a call regarding a possibly

intoxicated driver and found that he had abandoned his vehicle and walked home. Welsh v.

Wisconsin, 466 U.S. 740, 753 (1984).

The seriousness of the crime at issue must also be considered. The Supreme Court

recently held that:

The flight of a suspected misdemeanant does not always justify a

warrantless entry into a home. An officer must consider all the

circumstances in a pursuit case to determine whether there is a law

enforcement emergency. On many occasions, the officer will have

good reason to enter—to prevent imminent harms of violence,

destruction of evidence, or escape from the home. But when the

officer has time to get a warrant, he must do so—even though the

misdemeanant fled.

Lange v. California, 141 S. Ct. 2011, 2024 (2021); see also United States v. Anderson, 688 F.3d

339, 344 (8th Cir. 2012) (explaining that Welsh established two factors to consider “in determining

whether ‘hot pursuit’ creates an exigency: (1) the gravity of the underlying offense, and (2) whether

the government can demonstrate an ‘immediate or continuous’ pursuit of the suspect from the

scene of the crime”).

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The alleged offense that brought officers to Mr. Toon’s door was hitting the tire of a police

cruiser with his motorcycle, causing no damage, followed by fleeing officers.4 While potential

charges might not be limited to misdemeanor offenses, there is no particularly serious crime at

issue. Officers had located Mr. Toon based on a tip from a neighbor, a K-9, and the motorcycle

and other objects outside the residence. The only evidence at issue, the motorcycle, was likewise

outside the residence with the officers.

The Plaintiffs have alleged that the pursuit was not continuous. They allege that there was

a pause or cancellation of the pursuit between the high-speed chase and the officers appearing at

their residence. At this stage, the Court must accept the factual allegations contained in the

complaints as true. Based on the facts alleged, the officers pursued Mr. Toon, then gave up the

chase before performing additional investigation to identify his residence. These facts stand in

contrast to those in United States v. Jones, in which the Fourth Circuit found exigent circumstances

based in part on hot pursuit. 204 F.3d 541 (4th Cir. 2000). There, an officer observed a drug

transaction, ordered the suspect to stop as he approached the door to a residence, and entered

without consent after the suspect went inside and slammed the door closed. Id. at 543. Stanton

likewise involved an immediate pursuit into a residence, reasoning in part that a suspect should

not be permitted to evade an arrest initiated outside simply by entering a home. Here, there was

a gap in both time and place between the pursuit and the warrantless entry. Given the facts

alleged, the officers were no longer in hot pursuit when they arrived at the residence to arrest Mr.

Toon and/or conduct a search.

4 Although the Kanawha Deputies were, as they point out, reliant on Defendant Zerkle’s report of the initial incident,

experience and common sense would generate some level of skepticism about the seriousness of a vehicle accident in

which a motorcycle hit a police cruiser with no damage to either vehicle, given the physics of motorcycle riding.

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Absent a genuine hot pursuit, the Kanawha Deputies do not assert that the facts alleged

would support a finding of exigent circumstances. They do not suggest that there was a risk of

destruction of evidence, violence or harm to others, or escape. They do not identify any harm that

would have resulted from the delay in entry necessitated by obtaining a warrant. Therefore, the

Court finds that the warrantless entry, accepting the factual allegations as true, violated Ms. Quinn

and Mr. Toon’s Fourth Amendment right to be free from unreasonable searches and seizures.

B. Qualified Immunity – Kanawha Deputies

Qualified immunity is an affirmative defense intended to shield public officials from civil

suits arising out of their performance of job-related duties. See, e.g., Pearson v. Callahan, 555

U.S. 223, 231–32 (2009). Defendants asserting a qualified immunity defense first bear the burden

of “demonstrating that the conduct of which the plaintiff complains falls within the scope of the

defendant’s duties.” In re Allen, 106 F.3d 582, 594 (4th Cir. 1997) (internal quotation marks

omitted.) The defense of qualified immunity is available unless the official “knew or reasonably

should have known that the action he took within his sphere of official responsibility would violate

the constitutional rights of the plaintiff….” Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982)

(internal emphases omitted). Officials are protected even if they make reasonable mistakes of

fact or law, so long as they do not violate a clearly established statutory or constitutional right.

Pearson, 555 U.S. at 231–32. “A constitutional right is ‘clearly established’ when its contours

are sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013) (internal quotation marks and

citations omitted).

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Courts are advised to “ask first whether a constitutional violation occurred and second

whether the right violated was clearly established.”5 Id. The reasonableness analysis is

objective. Courts must “examine[] only the actions at issue and measure[] them against what a

reasonable police officer would do under the circumstances,” but the inquiry “must be filtered

through the lens of the officer’s perceptions at the time of the incident.” Rowland v. Perry, 41

F.3d 167, 172-73 (4th Cir. 1994). “[T]he officer's subjective state of mind is not relevant to the

qualified immunity inquiry but his perceptions of the objective facts of the incident in question

are.” Id. at 173.

The Defendants rely in part on Stanton v. Sims, in which the Supreme Court found that

officers were entitled to qualified immunity where they entered a home in hot pursuit of a suspect

for a misdemeanor. 571 U.S. 3, 5–6 (2013). The Court reasoned that the law on whether entry

in hot pursuit of a person suspected of a misdemeanor constituted exigent circumstances justifying

failure to obtain a warrant was so unsettled that an officer could not be held liable. Id. The Court

in Lange subsequently clarified the standard for officers in hot pursuit of individuals suspected of

misdemeanors. However, the issue presented here is not about whether Mr. Toon’s offense was

serious enough to permit warrantless entry during hot pursuit, but about whether the officers were,

in fact, in hot pursuit. The lower court in Stanton had relied in part on Welsh in refusing to grant

qualified immunity, and the Supreme Court in Stanton distinguished Welsh on the grounds that the

Welsh Court had found that there was no hot pursuit based on the facts.

5 “Courts are ‘permitted to exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the particular case at hand.’” Smith v.

Ray, 781 F.3d 95, 106, n. 3 (4th Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

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The Plaintiffs here have likewise alleged facts that do not constitute hot pursuit.

“[E]xceptions to the warrant requirement are few in number and carefully delineated, and…the

police bear a heavy burden when attempting to demonstrate an urgent need that might justify

warrantless searches or arrests.” Welsh v. Wisconsin, 466 U.S. 740, 749–50 (1984) (internal

quotation marks and citation omitted). “Before agents of the government may invade the sanctity

of the home, the burden is on the government to demonstrate exigent circumstances that overcome

the presumption of unreasonableness that attaches to all warrantless home entries.” Id. at 750.

The Kanawha Deputies ask this Court to find that the doctrine of qualified immunity

essentially negates the presumption that a warrantless home entry is unreasonable absent

specifically delineated exceptions. Instead of requiring a warrant absent exigent circumstances

established through precedent, they suggest that if the Plaintiffs are unable to identify precedent

finding warrantless entry unconstitutional in the specific factual scenario presented, they are

entitled to qualified immunity for entering a home without a warrant. But the law is quite clear

that warrantless entry is presumptively unreasonable, absent a few specific exceptions. If the facts

alleged do not fit within one of those exceptions to the warrant requirement, it is “beyond debate”

that a warrant is required for law enforcement officers to enter a private residence. Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011) (“We do not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question beyond debate” to deny qualified

immunity).

No reasonable officer would believe that he was in hot pursuit of a suspect given the facts

known to the officer prior to arrival at the Plaintiffs’’ residence. The Kanawha Deputies have not

put forward any other purported exigent circumstances justifying the warrantless entry, and the

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facts alleged would not support a finding that an officer “consider[ing] all the circumstances” could

reasonably “determine…there [was] a law enforcement emergency” such that he did not have

“time to get a warrant.” Lange v. California, 141 S. Ct. 2011, 2024 (2021). The Constitutional

right to be free from unreasonable searches and seizures, including warrantless entry into homes

absent exigent circumstances, is well established. Accordingly, the Court finds that the Kanawha

Deputies are not entitled to qualified immunity based on the facts alleged in the complaints.

C. Causation – Kanawha Deputies

The Kanawha Deputies argue that damages from the shooting as Mr. Toon and Ms. Quinn

escaped the house through a window are not sufficiently causally connected to their warrantless

entry. “Damages awarded under § 1983 for violations of constitutional rights are ordinarily

governed by common law tort principles,” including proximate causation. Kane v. Lewis, 604 F.

App'x 229, 234–35 (4th Cir. 2015) (unpublished). However, nominal damages are available for

Constitutional violations, and should they prove their case with regard to the warrantless entry

claims, the Plaintiffs would be able to recover “for injuries proximately caused by the warrantless

entry.” Cty. of Los Angeles, Calif. v. Mendez, 137 S. Ct. 1539, 1548 (2017) (emphasis in original).

The potential scope of damages does not render the legal claims for the alleged Constitutional

violation subject to dismissal, and the Court declines the opportunity to evaluate the scope of

damages at this early stage.

D. Trespass – Quinn Complaint

The Kanawha Deputies seek to dismiss the trespass claim on the grounds that they were

privileged to enter the residence. Given the Court’s previous findings regarding the Fourth

Amendment claim, the Court finds that the motion to dismiss for trespass should be denied.

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E. Tort of Outrage – Quinn Complaint

In West Virginia, the tort of outrage, or intentional infliction of emotional distress, follows

the Restatement of Torts (Second): “One who by extreme and outrageous conduct intentionally

or recklessly causes severe emotional distress to another is subject to liability for such emotional

distress, and if bodily harm to the other results from it, for such bodily harm.” Syl. pt. 6, Harless

v. First Nat. Bank in Fairmont, 289 S.E.2d 692, 694 (W. Va. 1982). The West Virginia Supreme

Court has established the following elements:

(1) that the defendant's conduct was atrocious, intolerable, and so

extreme and outrageous as to exceed the bounds of decency; (2) that

the defendant acted with the intent to inflict emotional distress, or

acted recklessly when it was certain or substantially certain

emotional distress would result from his conduct; (3) that the actions

of the defendant caused the plaintiff to suffer emotional distress;

and, (4) that the emotional distress suffered by the plaintiff was so

severe that no reasonable person could be expected to endure it.

Syl. pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421 (W. Va. 1998) (reaffirmed in Hatfield

v. Health Mgmt. Associates of W. Virginia, 672 S.E.2d 395, 404 (W. Va. 2008). The court further

explained that “whether conduct may reasonably be considered outrageous is a legal question, and

whether conduct is in fact outrageous is a question for jury determination.” Syl. pt. 4, id.

Courts have struggled to determine whether conduct may reasonably be considered

outrageous. Courtney v. Courtney, 413 S.E.2d 418, 422 (W. Va. 1991) (reviewing several cases

considering the question). Plaintiffs must make a showing that “the defendant’s actions toward

the plaintiff were atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of

decency” and be viewed as intolerable in a civilized society. Travis, 504 S.E.2d at 425.

“[C]onduct that is merely annoying, harmful of one's rights or expectations, uncivil, mean-spirited,

or negligent does not constitute outrageous conduct. On the other hand, outrageous conduct can

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include physical violence that causes bodily harm and emotional distress.” Courtney, 413 S.E.2d

at 423–424 (internal citations removed).

Plaintiff Quinn alleges that the Kanawha Deputies surrounded her home and entered

without a warrant in search of Mr. Toon. They had reason to believe that Mr. Toon had committed

criminal offenses, including leading officers on a high-speed chase. Accepting the allegations as

true, no exigent circumstances justified the failure to obtain a warrant. However, the Court cannot

find that the entry into Plaintiff Quinn’s home without a warrant, under the circumstances alleged

here, could reasonably be considered “atrocious, intolerable, and so extreme and outrageous as to

exceed the bounds of decency” such that it supports a claim for intentional infliction of emotional

distress. Therefore, the motion to dismiss will be granted as to Count V of Plaintiff Quinn’s

amended complaint.

F. Bystander Liability – Toon Complaint as to Kanawha Deputies

The Kanawha Deputies further move to dismiss Mr. Toon’s claim for bystander liability,

arguing that there was no Constitutional violation for officers to observe so no liability was

triggered. Given the Court’s previous findings with regard to the warrantless entry and qualified

immunity, the Court finds that the motion to dismiss Plaintiff Toon’s bystander liability claim

should be denied.

G. Official Capacity – Toon Complaint as to Kanawha Deputies

Plaintiff Toon concedes that the claims against the Kanawha Deputies in their official

capacity are subject to dismissal. The Kanawha Deputies will be dismissed from claims in their

official capacities.

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H. Defendant Zerkle’s Motion as to Plaintiff Toon

Defendant Zerkle moves to dismiss claims against him in his official capacity. Because

the Plaintiff has not pled facts supporting an official capacity claim and did not respond to the

motion to dismiss to the extent it sought dismissal of official capacity claims, the Court finds that

Defendant Zerkle should be dismissed in his official capacity.

Defendant Zerkle also seeks dismissal of claims related to the warrantless entry because he

did not enter the home, the allegations do not refer to any actions by him and based on the

arguments presented by the Kanawha Deputies. The Court finds that Count II, alleging Fourth

Amendment violations for warrantless entry should be dismissed as to Defendant Zerkle. If

Plaintiff Toon intended to include Defendant Zerkle in Count II, the language of the Complaint

does not make that intent clear. Although Defendant Zerkle is included in the header for that

count,6 none of the substantive allegations include him, instead listing Defendants Kay, Keglor,

Lively, and Miller repeatedly as the individuals responsible for violating the Plaintiff’s rights by

unlawfully entering the home. Thus, Count II does not fairly put Defendant Zerkle on notice as

to the allegations against him for Fourth Amendment violations for warrantless entry.

Count III then alleges bystander liability for failure to intervene, including specific

allegations regarding Defendant Zerkle’s knowledge of the unlawful search and seizure and duty

to intervene. Defendant Zerkle moves to dismiss Count III if the Court, in considering the

Kanawha Deputies’ motions, should find the underlying search and entry to be constitutional. As

the Court found that the Plaintiffs’ allegations, if proven, would constitute clear violation of the

6 The Court notes that the header for Count II also indicates that it contains claims for both warrantless entry and

excessive force, but the substantive allegations relate only to warrantless entry. Count IV then contains substantive

allegations for excessive force.

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well-established Constitutional right to be free from warrantless entry into a residence absent

exigent circumstances, Defendant Zerkle’s motion to dismiss Count III should be denied.

CONCLUSION

Wherefore, after thorough review and careful consideration, the Court ORDERS that

Defendants Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller’s

Motion to Dismiss [as to Plaintiff Taylor Quinn] (Document 4 in 2:21-cv-421) be GRANTED as

to Count V and DENIED as to all remaining counts, and that Defendants Sgt. Paxton Lively, Sgt.

Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller’s Motion to Dismiss [as to Plaintiff

Toon] (Document 11 in 2:21-cv-427) be GRANTED as to the official capacity claims and

DENIED as to the individual capacity claims. The Court further ORDERS that Defendant Lt.

Christopher Zerkle’s Partial Motion to Dismiss [as to Plaintiff Toon] (Document 8 in 2:21-cv-

427) be GRANTED as to the official capacity claims, GRANTED as to Count II, and DENIED

as to Count II.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to

any unrepresented party.

ENTER: — December 20, 2021

Dire. Benger’

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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