Figg v. Schroeder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GAYLE W. FIGG, personally and as 

personal representative of the estate

of Thomas Allen Figg, deceased;

ROBERT L. FIGG, III; JOHN STUART

FIGG; MARTHA FIGG WILLIAMS;

WAYNE ATTANASIO,

Plaintiffs-Appellees,

v.

JOHN A. SCHROEDER, Sergeant;

MICHAEL J. ANTHONY, Sergeant,

Defendants-Appellants,

and  No. 01-2331

THOMAS C. LAND, Individually and

in his official capacity as Sheriff’s

Deputy; JOHN DOES, 1-10, consisting

of several unidentified Hanover

County Sheriff’s Deputies,

individually and in their official

capacities as Sheriff’s Deputies;

WINSTON R. ROBERTSON; DOUGLAS R.

HINES; V. STUART COOK,

Individually and as Sheriff, Hanover

County,

Defendants.



2 FIGG v. SCHROEDER

GAYLE W. FIGG, personally and as 

personal representative of the estate

of Thomas Allen Figg, deceased;

ROBERT L. FIGG, III; JOHN STUART

FIGG; MARTHA FIGG WILLIAMS;

WAYNE ATTANASIO,

Plaintiffs-Appellees,

v.

JOHN A. SCHROEDER, Sergeant;

MICHAEL J. ANTHONY, Sergeant,

Defendants-Appellants,

and  No. 01-2332

THOMAS C. LAND, Individually and

in his official capacity as Sheriff’s

Deputy; JOHN DOES, 1-10, consisting

of several unidentified Hanover

County Sheriff’s Deputies,

individually and in their official

capacities as Sheriff’s Deputies;

WINSTON R. ROBERTSON; DOUGLAS R.

HINES; V. STUART COOK,

Individually and as Sheriff, Hanover

County,

Defendants.



FIGG v. SCHROEDER 3

GAYLE W. FIGG, personally and as 

personal representative of the estate

of Thomas Allen Figg, deceased;

ROBERT L. FIGG, III; JOHN STUART

FIGG; MARTHA FIGG WILLIAMS;

WAYNE ATTANASIO,

Plaintiffs-Appellants,

v.

JOHN A. SCHROEDER, Sergeant;

MICHAEL J. ANTHONY, Sergeant;

THOMAS C. LAND, Individually and  No. 01-2443

in his official capacity as Sheriff’s

Deputy; JOHN DOES, 1-10, consisting

of several unidentified Hanover

County Sheriff’s Deputies,

individually and in their official

capacities as Sheriff’s Deputies;

WINSTON R. ROBERTSON; DOUGLAS R.

HINES; V. STUART COOK,

Individually and as Sheriff, Hanover

County,

Defendants-Appellees.



Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-00-698-3)

Argued: September 24, 2002

Decided: December 3, 2002

Before WILLIAMS, MOTZ, and KING, Circuit Judges.

4 FIGG v. SCHROEDER

Affirmed in part, reversed in part, vacated in part, and remanded by

published opinion. Judge King wrote the opinion, in which Judge

Williams and Judge Motz joined.

COUNSEL

ARGUED: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,

Richmond, Virginia, for Appellants. James Mason Loots, GOLD-

STEIN LOOTS, P.C., Washington, D.C., for Appellees. ON BRIEF:

John A. Gibney, Jr., SHUFORD, RUBIN & GIBNEY, Richmond,

Virginia; Yvonne S. Wellford, OFFICE OF THE COUNTY ATTOR-

NEY, Hanover, Virginia, for Appellants.

OPINION

KING, Circuit Judge:

This appeal stems from a series of events surrounding the shooting

death of Thomas Figg on January 7, 2000, in Hanover County, Vir-

ginia. Shortly before midnight on that evening, Deputy Sheriff

Thomas C. Land pursued a pickup truck on suspicion of drunken driv-

ing. The truck, driven by Thomas Figg, eventually pulled over at the

driveway of the Figg family farm, near Ashland, Virginia. What

began as a routine traffic stop soon escalated into a struggle, during

which Deputy Land shot and fatally wounded Thomas Figg. Three of

Thomas Figg’s siblings (Robert Figg, Martha Figg Williams, and

John Figg) and a family friend (Wayne Attanasio) arrived on the

scene; all four were then detained and held until about 2:30 a.m. on

January 8, 2000, while the Hanover County Sheriff’s Department

investigated the incident.

The four detainees, together with the personal representative of the

deceased Thomas Figg, initiated this lawsuit in the Eastern District of

Virginia. They sued various members of the Sheriff’s Department,

alleging violations of state and federal law.1 Of relevance here, the

1

The six original defendants were Deputy Thomas C. Land, Sheriff V.

Stuart Cook, Captain Douglas R. Hines, Captain Winston R. Robertson,

and the Appellants, Sergeants John A. Schroeder and Michael J.

Anthony. All claims against Captain Hines were withdrawn before trial.

FIGG v. SCHROEDER 5

district court awarded qualified immunity to all of the defendants on

the federal claims stemming from the initial portions of the deten-

tions, but refused to award immunity to them with respect to the later

portions of the detentions. After a jury trial in September 2001, the

court entered judgments against Defendants John A. Schroeder and

Michael J. Anthony with respect to the detentions of Plaintiffs Martha

Figg Williams and John Figg.

Defendants Schroeder and Anthony have appealed and the Plain-

tiffs have cross-appealed. We possess jurisdiction pursuant to 28

U.S.C. § 1291. As explained below, we affirm in part, reverse in part,

vacate in part, and remand.

I.

The parties are largely in agreement on the material facts underly-

ing this case. Those facts are set out below, with notations indicating

relevant points of dispute.

A. The Stop

Shortly before midnight on the chilly night of January 7, 2000,

Deputy Land attempted to stop Thomas Figg on suspicion of driving

under the influence of alcohol. Deputy Land turned on the blue light

of his patrol car, but Mr. Figg continued on, turning into the driveway

of Round Top Farm, the Figg family residence in Hanover County.

Deputy Land followed and chirped his siren, and Thomas Figg

stopped. As Deputy Land walked to the truck, he smelled alcohol on

Mr. Figg; he also saw two unknown men approaching down the

farm’s dark driveway, carrying a flashlight.2

2

Round Top Farm was known to members of the Sheriff’s Department

as the home of the Figg family, and the family had a reputation for

domestic violence, hard drinking, fighting, and possession of firearms

(including pistols, rifles, shotguns, and semi-automatic weapons). Of the

three Figg brothers, Thomas Figg (the driver of the pickup truck) had

twice been convicted of assault and battery of his wife; Robert Figg had

been convicted of assaulting a law enforcement officer; and John Figg

was a twice-convicted felon. Because of the Figgs’ violent reputation, the

Hanover County deputies had an unwritten policy of calling for backup

support before responding to a call from the Figgs.

6 FIGG v. SCHROEDER

When the two approaching men (Robert Figg and Wayne Attana-

sio) were approximately forty feet away from him, Deputy Land

asked them what they were doing; one (Robert Figg) responded only

by asking Deputy Land what he was doing with his brother. Deputy

Land directed the men to leave, but Robert Figg said he owned the

land and that he was not going anywhere. Deputy Land then ordered

the men to hold out their arms so that he could determine whether

they had weapons; both complied, but they still refused to leave.

Thomas Figg then suddenly got out of his truck. Deputy Land

interpreted this act as a threat and radioed for backup support. Ser-

geant Michael Anthony, as well as two other Hanover County depu-

ties, headed for Round Top Farm. As they did so, numerous members

of the County Sheriff’s Department, recognizing the address, dis-

cussed via radio the Figgs’ reputation for fighting and drunkenness.

After leaving his truck, Thomas Figg refused to permit Deputy

Land to perform field sobriety tests on him, but he offered his hands

to be handcuffed. Deputy Land, not wanting to turn his back on Rob-

ert Figg and Wayne Attanasio, ordered Thomas Figg to his knees.

Thomas Figg refused, however, and Deputy Land promptly informed

him that he was under arrest. Thomas Figg began to walk away, but

then turned suddenly toward Deputy Land; Deputy Land sprayed him

with pepper spray and Thomas Figg ran into the woods. Deputy Land

radioed that he was in foot pursuit, and eleven officers, including Ser-

geant Schroeder, responded. Deputy Land pursued and caught up to

Thomas Figg. The two struggled, and Deputy Land shot Thomas Figg

three times, fatally wounding him.

Robert Figg, standing nearby, heard the shots. He yelled to Deputy

Land, "Motherfucker, I’m going to kill you," and then ran to the Figg

house and called 911. In his 911 call, Robert Figg made additional

threats and used profanity, and he requested that someone come and

restrain Deputy Land. When other officers began to arrive on the

scene, Deputy Land told them only that shots had been fired; they did

not know that Land was the only shooter.

B. The Initial Detentions

Still on the scene, Wayne Attanasio was immediately handcuffed

and placed on the ground by Deputy Land. When a car suddenly

FIGG v. SCHROEDER 7

appeared, heading down the driveway from the Figg house, Deputy

Land placed Mr. Attanasio in a patrol car with another deputy. Depu-

ties testified that Mr. Attanasio was loud and obnoxious, smelled of

alcohol, and seemed to be drunk; he concedes that he had had several

drinks that night.

The approaching car was driven by Martha Figg Williams, who

had been awakened by her brother Robert Figg’s 911 call. Barefoot

and in nightclothes, she drove the quarter-mile from the Figg house

to where Thomas Figg’s pickup truck was parked on the farm road.

When Ms. Williams arrived on the scene, a deputy ordered her to stay

in her car, but she disobeyed, and she got out of her car yelling and

cursing. Ms. Williams was ordered to return to her car, but she

refused. Sergeant Anthony then placed her face-front against the car

and attempted to handcuff her. Ms. Williams struggled, but she was

handcuffed.

Immediately after Ms. Williams had been handcuffed, Robert Figg

approached the deputies on foot, returning from the Figg house after

making his 911 call. The deputies testified that he was yelling; and

Sergeant Anthony heard Robert Figg say that "he could get his AK-

47 and kill us all." Robert Figg, by contrast, testified that he was

walking with his hands outstretched to show he was unarmed, calling

out that he had no gun. The officers took cover and drew their weap-

ons. At Sergeant Anthony’s direction, Robert Figg was frisked and

handcuffed. The officers testified that Robert Figg cursed, yelled, and

threatened them, and there was evidence that he attempted to incite

Mr. Attanasio to fight the deputies. Again disputing this account,

Robert Figg claims that he was merely begging the deputies to help

his brother Tom, and that instead of going to his brother’s aid, the

deputies ordered him to lie on the freezing ground. It is undisputed

that Robert Figg had been drinking.

Just after Robert Figg was handcuffed, a pickup truck sped down

the road from the direction of the Figg house. The deputies took cover

again and barricaded the road with a police car. The truck stopped and

the driver, John Figg, was apprehended, obviously upset and appar-

ently quite drunk. Sergeant Anthony recognized John Figg, having

previously arrested him for a felony. At Sergeant Anthony’s direction,

8 FIGG v. SCHROEDER

John Figg was searched, handcuffed, and placed in a patrol car. It is

undisputed that he was, by this point, cooperative.

C. The Later Detentions

Sergeant Schroeder gave a deputy permission to place Ms. Wil-

liams in a patrol car because she was cold. He then instructed a dep-

uty to take her to the Figg house, because she was unarmed and had

calmed down, and because she had children at the house who were

unattended. Sergeant Schroeder had seen what appeared to be a bon-

fire nearby and, thinking that it was a party and that there might be

others around, directed the deputy to stay with Ms. Williams at the

Figg house. Sergeant Schroeder knew that there were weapons in the

house, and he was concerned that other members of the family, or

their friends, might arrive armed at the scene of the shooting. Two

deputies stayed at the Figg house until 2:30 or 3:00 a.m., about two

and a half hours. During this period, Ms. Williams was not permitted

to leave the house or to make phone calls. It is undisputed, though,

that the deputies there were polite and circumspect.

Wayne Attanasio, Robert Figg, and John Figg were kept in custody

at the scene of the shooting until after 2:30 a.m. After being placed

in a patrol car, Mr. Attanasio cursed at the officers and banged his

head against the window for approximately thirty minutes. Mr.

Attanasio explained at trial that he had been trying to get attention so

that someone would see to Tom (and, later, to get someone to let him

out to urinate). Though questioned during his detention about the

shooting of his friend Thomas Figg, Mr. Attanasio refused to answer.

Robert Figg, still handcuffed, was also eventually placed in a patrol

car. He allegedly told one deputy that he had a lot of guns and was

thinking of coming back to shoot the officers; officers smelled alcohol

on his breath. John Figg was kept handcuffed for an hour or more,

then was held uncuffed for another forty-five minutes. Though appar-

ently extremely intoxicated, he was cooperative throughout.

At about 2:30 a.m., Sheriff V. Stuart Cook directed the release of

the three men (Robert Figg, Wayne Attanasio, and John Figg). Sev-

eral of the deputies objected to the release, fearing that one or more

of the three would return armed to the shooting scene. After Robert

FIGG v. SCHROEDER 9

Figg assured Sheriff Cook that he would not return to the scene if

released, all three were freed. The officers who had remained with

Ms. Williams at the Figg house left the house at approximately the

same time. Deputies remained at the scene of the shooting until dawn

on January 8, 2000.

II.

On October 26, 2000, Robert Figg, Wayne Attanasio, Martha Figg

Williams, and John Figg, along with the personal representative of

Thomas Figg, initiated this lawsuit in the Eastern District of Virginia,

alleging numerous violations of state and federal law stemming from

the events surrounding Thomas Figg’s death. The original defendants,

sued both individually and in their official capacities, were Deputy

Land, Sheriff Cook, Captain Douglas R. Hines, Captain Winston R.

Robertson, and the Appellants here, Sergeants Schroeder and Anthony.3

All claims against Captain Hines were withdrawn before trial. Of the

remaining counts, those relevant to this appeal are set forth below, as

are their respective dispositions.

A.

Robert Figg, Wayne Attanasio, Martha Figg Williams, and John

Figg (collectively, the "Figgs") brought claims under § 1983 against

Sergeants Schroeder and Anthony (the "Sergeants") and other offi-

cers, in their individual capacities, alleging that the Figgs’ detentions

on the night of Thomas Figg’s shooting constituted illegal seizures.

The court granted qualified immunity to the Sergeants and other offi-

cers as to the initial portions of those detentions, and it accordingly

awarded them summary judgment on the corresponding aspects of the

Figgs’ § 1983 claims.4 The court denied qualified immunity to the

3

In its original complaint, the Plaintiffs also named ten "John Doe"

defendants. However, the Plaintiffs subsequently amended their com-

plaint, omitting the allegations against the John Doe defendants.

4

In its analysis of the Sergeants’ assertions of qualified immunity on

the federal unlawful seizure claims, the court distinguished between the

earlier and later portions of the Figgs’ confinements. It awarded immu-

nity to the Sergeants as to those portions of the detentions that occurred

10 FIGG v. SCHROEDER

Sergeants and other officers as to the later parts of the detentions, and

it allowed those aspects of the Figgs’ § 1983 claims against the Ser-

geants to go to the jury.5

In addition to the federal claims, the Figgs also brought state-law

claims against the Sergeants, alleging that the Figgs’ detentions con-

stituted false imprisonment. The court denied in full the Sergeants’

motions for summary judgment and allowed the state-law claims to

go to the jury.

After an eight-day trial, conducted in September 2001, the jury dis-

posed of the Figgs’ claims against the Sergeants in three distinct

ways. First, the jury found against Robert Figg both on his illegal sei-

zure claims and on his false imprisonment claims. Second, the jury

found in favor of Ms. Williams and John Figg both on their illegal

seizure claims and on their false imprisonment claims. Third, the jury

found against Wayne Attanasio on his illegal seizure claims, but it

failed to render a verdict on his false imprisonment claims.

After the jury was discharged and the omission of a verdict on Mr.

Attanasio’s false imprisonment claims against the Sergeants was dis-

covered, Mr. Attanasio moved for a new trial on those claims. Extrap-

olating from the jury’s verdict in favor of the Sergeants on Mr.

Attanasio’s illegal seizure claims, the court concluded that the Ser-

geants were necessarily entitled to prevail on the state-law false

imprisonment claims as well. Figg v. Cook, No. 3:00-CV-698, Mem.

prior to the officers’ removal of Ms. Williams to the Figg house (approx-

imately half an hour after the Figgs were first detained). Figg v. Cook,

No. 3:00-CV-698, Mem. Op. at 7 (E.D. Va. Sept. 4, 2001). For ease of

exposition, we refer to the confinements during this early period as the

"initial detentions." The court denied immunity to the Sergeants on the

federal claims arising from the portions of the detentions following Ms.

Williams’s removal from the scene. Id. Again for ease of exposition, we

refer to the Figgs’ confinements during this later period as "the later

detentions."

5

By contrast, the Figgs’ § 1983 claims against the other officers as to

the later parts of the detentions never made it to the jury. The disposition

of those claims is discussed fully at note 6, infra.

FIGG v. SCHROEDER 11

Op. at 5 (E.D. Va. Oct. 30, 2001) (the "Opinion"). Furthermore, it rea-

soned that Mr. Attanasio had waived his objection to the omitted ver-

dict by failing to raise the objection prior to the jury’s discharge.

Accordingly, the court denied Mr. Attanasio’s motion for a new trial

on his false imprisonment claims. Figg v. Cook, No. 3:00-CV-698,

Order at 1 (E.D. Va. Oct. 30, 2001). Mr. Attanasio has appealed.

The jury awarded Ms. Williams and John Figg $12,000 and $2,000,

respectively, against the Sergeants; the court subsequently added to

that amount an attorney’s fee award of $55,567.76. The Sergeants

have appealed those verdicts and awards. The Figgs have cross-

appealed, asserting that the court erred in granting the Sergeants and

other officers qualified immunity from the portion of the § 1983

claims pertaining to the initial detentions.6

B.

In addition to the numerous claims stemming from the Figgs’

detentions, Thomas Figg’s personal representative brought both a

§ 1983 excessive force claim and a state-law wrongful death claim

against Deputy Land based on the shooting of Thomas Figg. At trial,

the court instructed the jury that, if it found Deputy Land’s fatal

wounding of Thomas Figg to be reasonable, then it must render a ver-

dict for Deputy Land on both the § 1983 claim and the state-law

wrongful death claim. The court overruled the objection to this

instruction raised by Thomas Figg’s personal representative, and the

jury found in favor of Deputy Land on both counts. Thomas Figg’s

personal representative has appealed.

6

The Figgs brought federal and state claims stemming from their

detentions not only against the Sergeants, but against two other officers

as well — Sheriff Cook and Captain Robertson. Like the Sergeants,

Cook and Robertson were awarded qualified immunity with respect to

the initial detentions. Unlike the Sergeants, Cook and Robertson pre-

vailed at trial on motions for judgment as a matter of law, both on the

federal seizure claims as to the later detentions and on the state-law false

imprisonment claims. Bench Rulings, Sept. 12-13, 2001. As a result,

none of the claims against Cook and Robertson were submitted to the

jury. Sheriff Cook and Captain Robertson are parties only to the Figgs’

cross-appeal challenging the court’s award of qualified immunity with

respect to the initial detentions.

12 FIGG v. SCHROEDER

III.

We begin by addressing the issues raised on appeal by Sergeants

Schroeder and Anthony. The Sergeants first assert that the district

court erred in deciding that they are not entitled to qualified immunity

on the federal civil rights claims of Ms. Williams and John Figg aris-

ing from the later detentions; and that they are not entitled to state-law

immunity on the state-law false imprisonment claims of those Plain-

tiffs for the same period. Accordingly, the Sergeants contend that the

court wrongly denied their respective Rule 50 motions for judgment

as a matter of law. We agree and reverse.

We review de novo the denial of a motion for judgment as a matter

of law. Anderson v. Russell, 247 F.3d 125, 129 (4th Cir.), cert.

denied, 122 S. Ct. 342 (2001). A court may grant such a motion only

"if, viewing the evidence in the light most favorable to the non-

moving party and drawing every legitimate inference in that party’s

favor," it determines that "the only conclusion a reasonable trier of

fact could draw from the evidence is in favor of the moving party."

Tools USA & Equip. Co. v. Champ Frame Straightening Equip., Inc.,

87 F.3d 654, 656-57 (4th Cir. 1996) (internal quotation omitted).

A.

Our qualified immunity inquiry proceeds in two distinct steps. See

Wilson v. Layne, 526 U.S. 603, 609 (1999). First, a court reviewing

a denial of a Rule 50(b) motion after a jury verdict must ask whether,

taken in the light most favorable to the party asserting the injury, "the

evidence adduced at trial is sufficient to establish that [the officers]

committed a constitutional violation . . . ." Knussman v. Maryland,

272 F.3d 625, 634 (4th Cir. 2001). If the answer is "no" then the anal-

ysis ends; the plaintiff cannot prevail. See Clem v. Corbeau, 284 F.3d

543, 549 (4th Cir. 2002).

If the answer to that first question is "yes," however, then the next

step is to ask whether the constitutional right was clearly established

in the "‘specific context of the case’ — that is, [whether] it was ‘clear

to a reasonable officer’ that the conduct in which he allegedly

engaged ‘was unlawful in the situation he confronted.’" Id. (quoting

Saucier v. Katz, 533 U.S. 194, 201-02 (2001)); see also Wilson, 536

FIGG v. SCHROEDER 13

U.S. at 615; Anderson v. Creighton, 483 U.S. 635, 640-41 (1987).

This second step of the qualified immunity inquiry is an objective

one, dependent not on the subjective beliefs of the particular officers

at the scene, but instead on what a hypothetical, reasonable officer

would have understood under those circumstances. Milstead v. Kibler,

243 F.3d 157, 161 (4th Cir.), cert. denied, 122 S. Ct. 199 (2001). It

ensures that, when the legality of a particular course of action is open

to reasonable dispute, an officer will not be subjected to trial and lia-

bility. Under the doctrine of qualified immunity, "officials are not lia-

ble for bad guesses in gray areas; they are liable for transgressing

bright lines." Maciarello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992).

B.

We turn, then, to the first step of our qualified immunity inquiry:

is the evidence adduced at trial, viewed in the light most favorable to

Ms. Williams and John Figg, sufficient to show that the Sergeants’

conduct violated a constitutional right? Answering "no," we rule in

favor of the Sergeants; we need not reach the second step of the

immunity analysis.

1.

The parties do not dispute that Ms. Williams’ and John Figg’s

Fourth Amendment rights were implicated by their treatment on the

night of January 7, 2000. Though neither was subject to formal arrest,

both were nonetheless "seized." An individual has been seized "if, in

view of the circumstances surrounding the incident, a reasonable per-

son would have believed that he was not free to leave." United States

v. Mendenhall, 446 U.S. 544, 554 (1980); see also Berkemer v.

McCarty, 468 U.S. 420, 442 (1984) ("In the absence of formal arrest,

the trial court must determine whether a suspect’s freedom of move-

ment was sufficiently curtailed by considering how a reasonable man

in the suspect’s position would have understood his situation." (inter-

nal quotation omitted)); Park v. Shiflett, 250 F.3d 843, 850 (4th Cir.

2001) (noting that test for determining whether there has been infor-

mal arrest is whether suspect’s freedom of action has been curtailed

to degree associated with formal arrest). Since it is undisputed that

John Figg would not have been allowed to leave the patrol car in

14 FIGG v. SCHROEDER

which he was detained, and since it is likewise undisputed that the

deputies at the Figg house would permit Ms. Williams neither to leave

nor to place phone calls, both were subjected to Fourth Amendment

seizure.

2.

The question becomes, then, whether either Ms. Williams or John

Figg has proffered evidence that, if credited, would lead to the con-

clusion that either of their seizures violated the Constitution. As

explained below, they have not.

The Fourth Amendment prohibits only unreasonable searches and

seizures. What constitutes a reasonable seizure "depends on all of the

circumstances surrounding the . . . seizure itself." United States v.

Montoya de Hernandez, 473 U.S. 531, 537 (1985). As a general rule,

after initial questioning, any further detention or search is reasonable

for Fourth Amendment purposes only if it is "based on consent or

[on] probable cause [for arrest]." United States v. Brignoni-Ponce,

422 U.S. 873, 882 (1975). An officer has probable cause for arrest if

the facts known to him at the time would warrant the belief of a pru-

dent person that the arrestee had committed or was committing a

crime. Beck v. Ohio, 379 U.S. 89, 91 (1964).

Under what we will refer to as the minor offense doctrine, "[i]f an

officer has probable cause to believe that an individual has committed

even a very minor criminal offense in his presence, he may, without

violating the Fourth Amendment, arrest the offender." Atwater v.

Lago Vista, 532 U.S. 318, 333 (2001) (finding no constitutional viola-

tion in jailing of seat-belt law violator). Viewing the evidence in the

light most favorable to Ms. Williams and John Figg, and drawing

every legitimate inference in their favor, the only conclusion that a

reasonable trier of fact could draw is that the Sergeants had probable

cause to believe that both Ms. Williams and John Figg had committed

minor offenses in the officers’ presence. Accordingly, under the

minor offense doctrine, the seizures of Ms. Williams and John Figg

were reasonable under the Fourth Amendment.

Ms. Williams does not contest the officers’ testimony that she dis-

obeyed an order to remain in or to return to her automobile when she

FIGG v. SCHROEDER 15

first arrived at the shooting scene, shortly before midnight on January

7, 2000. As a result, it is undisputed that the officers at the scene had

probable cause to believe that Ms. Williams had violated Virginia’s

obstruction of justice statute, and thus that she could lawfully be

placed under arrest.7 Cf. Chicago v. Morales, 527 U.S. 41, 69 (1999)

(Kennedy, J., concurring in part) (describing protection of crime

scene as legitimate basis for police command, which can subject citi-

zen to prosecution). Similarly, it is undisputed that John Figg had

been drinking on the evening of January 7, 2000, that just past mid-

night he drove to the shooting scene, and that he appeared drunk to

the officers present. Even when the facts are viewed in the light most

favorable to John Figg, the Sergeants had probable cause to believe

that he had violated Virginia’s DUI law.8

Because the Sergeants had probable cause to arrest and jail both

Ms. Williams and John Figg, the Sergeants did not violate the Fourth

Amendment by detaining both Ms. Williams and John Figg for a few

hours. Thus, our qualified immunity inquiry ends there. The Sergeants

cannot be held liable under federal law for the seizures; their entitle-

ment to qualified immunity should have been recognized and their

motion for judgment as a matter of law should have been granted.

C.

With respect to the appeal of the Sergeants, we must now deter-

mine whether they were similarly entitled to judgment as a matter of

7

The Virginia obstruction of justice statute provides that: "[i]f any per-

son . . . knowingly obstructs a . . . law-enforcement officer . . . or fails

or refuses without just cause to cease such obstruction when requested

to do so . . . he shall be guilty of a Class 1 misdemeanor." Va. Code Ann.

§ 18.2-460.A. And under Virginia law, a police officer is authorized to

"arrest, without a warrant, any person who commits any crime in the

presence of the officer." Id. § 19.2-81.

8

The Virginia DUI statute provides that: "[i]t shall be unlawful for any

person to drive or operate any motor vehicle . . . while such person is

under the influence of alcohol." Va. Code Ann. § 18.2-266; see also

Gray v. Commonwealth, 477 S.E.2d 301, 302 (Va. App. 1996) (holding

that Virginia’s DUI statute does not require that operation of motor vehi-

cle occur on public road).

16 FIGG v. SCHROEDER

law with respect to the state-law false imprisonment claims. As

explained below, we conclude that they were.

In Virginia, the tort of false imprisonment requires "the direct

restraint by one person of the physical liberty of another without ade-

quate legal justification." Jordan v. Shands, 500 S.E.2d 215, 218 (Va.

1998). We need not analyze the Virginia law of immunity in order to

conclude that the evidence adduced at trial, even when taken in the

light most favorable to Ms. Williams and John Figg, shows that their

detentions do not constitute false imprisonment in Virginia. A Vir-

ginia police officer "has the duty to arrest a person who commits a

misdemeanor in his presence, even though the officer has no arrest

warrant . . . . And an arrest, though warrantless, is valid where the

officer had probable cause to believe that a misdemeanor was com-

mitted in his presence." Yeatts v. Minton, 177 S.E.2d 646, 648 (Va.

1973). As discussed above, the undisputed facts are that the Sergeants

had probable cause to arrest both Ms. Williams and John Figg. Conse-

quently, the Plaintiffs have adduced no evidence indicating that their

detentions could have been "without legal justification"; to the con-

trary, each officer’s conduct was consistent with his duty. The district

court thus erred in denying judgment as a matter of law to the Ser-

geants on the false imprisonment claims.9

9

Our decision that the Sergeants were entitled to judgment as a matter

of law on both the federal civil rights claims and the state-law false

imprisonment claims, because they had probable cause to believe that

both Plaintiffs committed minor offenses, renders it unnecessary for us

to consider the array of additional issues raised by the Sergeants on

appeal, to wit: whether the court erred in denying Sergeant Schroeder’s

Rule 50 motion for judgment as a matter of law as to both Plaintiffs due

to a lack of evidence connecting him to their detentions; whether the

court erred in denying Sergeant Anthony’s Rule 50 motion for judgment

as a matter of law as to Ms. Williams due to a lack of evidence connect-

ing him to her detention; whether the court erred in refusing to dismiss

all claims brought by John Figg in light of a dearth of evidence; whether

the court erred in upholding John Figg’s damage award; and whether the

court erred in denying the Sergeants’ motions to reduce the verdicts as

duplicative.

FIGG v. SCHROEDER 17

IV.

We turn now to the three contentions raised on cross-appeal by the

Plaintiffs: (1) that the award of qualified immunity to several of the

Defendants with respect to the federal claims arising from the initial

detentions of Robert Figg, Mr. Attanasio, Ms. Williams, and John

Figg was inappropriate; (2) that the jury instruction on the wrongful

death claim stemming from the shooting of Thomas Figg constitutes

reversible error; and (3) that Mr. Attanasio’s motion for a new trial

on his state-law false imprisonment claims against the Sergeants

should have been granted. We address each of these contentions in

turn.

A.

Robert Figg, Wayne Attanasio, Ms. Williams, and John Figg (col-

lectively, the "Figgs") assert in their cross-appeal that the district

court erred in awarding qualified immunity to Sheriff Cook, Captain

Robertson, Sergeant Schroeder, and Sergeant Anthony (collectively,

the "Officers") with respect to the federal claims arising from the ini-

tial detentions (that is, the detentions for the approximate half-hour

period prior to the deputies’ discovery of weapons in the Figgs’

house). The Figgs maintain that, as a result of this ruling, the court

wrongly awarded partial summary judgment to the Officers on the

federal claims stemming from those detentions. Furthermore, the

Figgs contend, the jury instruction on the Officers’ immunity unfairly

prejudiced the jury’s evaluation of the claims made by Robert Figg

and Mr. Attanasio on the later detentions. We disagree, and we affirm

the district court’s award of qualified immunity.

1.

We review de novo a district court’s award of summary judgment.

Taylor v. McDuffie, 155 F.3d 479, 482 (4th Cir. 1998) (reviewing

award of summary judgment made on qualified immunity grounds).

Only when there is no genuine issue as to any material fact is sum-

mary judgment appropriate. Id. In deciding whether there is a genuine

issue of material fact, the evidence of the non-moving party is to be

believed and all justifiable inferences are to be drawn in his favor. Id.

18 FIGG v. SCHROEDER

We conclude, under the two-step Wilson qualified immunity analy-

sis, see supra at 12, that summary judgment was appropriate as to all

Plaintiffs. With respect to Ms. Williams and John Figg, the propriety

of their longer detentions under the minor offense doctrine justifies,

a fortiori, their initial detentions as well. See supra, Part III. And with

respect to all of the Figgs, even when all possible inferences are

drawn in their favor, the Officers’ conduct was justified by exigent

circumstances and violated no constitutional right. Consequently, the

Officers were entitled to summary judgment on qualified immunity

grounds with respect to all of the initial detentions, and the court did

not err in so ruling.

2.

The exigent circumstances exception to the warrant requirement

"basically encompasses officer safety and the destruction of easily-

disposed evidence." Gould v. Davis, 165 F.3d 265, 270-71 (4th Cir.

1998). For police officers successfully to assert the exigent circum-

stances doctrine, they need only possess a "reasonable suspicion" that

such circumstances exist at the time of the search or seizure in ques-

tion. United States v. Grogins, 163 F.3d 795, 797 (4th Cir. 1998).

And, as usual, courts should not engage in "unreasonable second-

guessing" of the officers’ assessment of the circumstances that they

faced. United States v. Montoya de Hernandez, 473 U.S. 531, 542

(1985).

Exigent circumstances render permissible a warrantless search or

seizure, even when there is no probable cause to believe that a crime

has been committed. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509

(1978) (burning building is exigent circumstance that allows fire-

fighters to enter without a warrant). One such circumstance exists

when police officers engaged in lawful investigatory functions would

be endangered in the absence of a warrantless seizure. See Michigan

v. Summers, 452 U.S. 692, 702-03 & n.17 (1981) (holding that offi-

cers may temporarily detain civilians present at scene of lawful inves-

tigation, when such detention is reasonably necessary to secure

officers’ safety);10 see also United States v. Kurchi, 892 F. Supp. 775,

10

In fact, in Summers the Court went even further, suggesting that offi-

cers are entitled to detain even when "no special danger . . . is suggested

by the evidence in th[e] record," and the only apparent danger to the offi-

cers is the danger inherent in the fact of their unwanted presence. Sum-

mers, 452 U.S. at 702.

FIGG v. SCHROEDER 19

786 (W.D. Va. 1995) (listing, among factors relevant in determining

exigency, "the possibility of danger to police guarding [a] site"); cf.

Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-99 (1967)

(holding that danger to life of police officers constituted exigency jus-

tifying warrantless search); State v. Green, 575 A.2d 1308, 1313

(N.H. 1990) (holding that police must be permitted to regulate the

movements of civilians at crime scene, and that they need not have

articulable suspicion of crime to stop individual who is approaching).

3.

It is undisputed that the Officers addressed a series of unexpected

and potentially dangerous encounters in the period immediately fol-

lowing their arrival at Round Top Farm on the night of January 7-8,

2000. When they reached the scene, they knew only that there had

been a shooting; and even after speaking with Deputy Land, they did

not know that he was the only person to have discharged a firearm.

The Officers were at the home of a family whose reputation for vio-

lence and possession of assault weapons was well-known to many

members of the police force. Their presence was strongly objection-

able to the Figgs, who were understandably angry and distraught that

Thomas Figg had been shot. Cf. Summers, 452 U.S. at 702-03

(observing that even ordinary search may prompt violent response).

Faced with the need to conduct their investigation of the shooting

incident in a reasonably safe environment, the initial, half-hour deten-

tions of the Figgs constituted a measured and proportionate response.

Because the Officers’ arrival at Round Top Farm would prompt a

reasonable officer to believe the situation to be dangerous, we con-

clude that those exigent circumstances justified the initial, half-hour,

warrantless detentions of the Figgs. Accordingly, the district court

was correct to accord the Officers summary judgment on the federal

claims for the initial detentions, on the basis of qualified immunity.11

11

Because the Figgs failed to object to the jury instruction regarding

the Officers’ immunity for the initial detentions, they have waived their

entitlement to our review of the instruction. See Fed. R. Civ. P. 51 (party

may not assign error to jury instruction unless he objects before jury

retires); City of Richmond v. Madison Mgmt. Grp., Inc., 918 F.2d 438,

453 (4th Cir. 1990). In any event, because the initial detentions were

lawful, the instruction to that effect thus was proper.

20 FIGG v. SCHROEDER

B.

The Plaintiffs next maintain, in their cross-appeal, that the court

erred in instructing the jury that, if it found Deputy Land’s fatal

wounding of Thomas Figg to be reasonable, then it must render a ver-

dict for Deputy Land on both the § 1983 claim and the state-law

wrongful death claim. We review de novo a trial court’s instruction

to a jury, Superior Form Builders, Inc. v. Chase Taxidermy Supply

Co., 74 F.3d 488, 495 (4th Cir. 1996), keeping in mind that a court

has "considerable discretion in choosing the specific wording of

instructions." United States v. Piche, 981 F.2d 706, 712 (4th Cir.

1992). A judgment may be reversed for error in an instruction "only

if the error is determined to have been prejudicial, based on a review

of the record as a whole." Abraham v. County of Greenville, 237 F.3d

386, 393 (4th Cir. 2001).

The Figgs correctly observe that, while the excessiveness of force

is a prima facie element of their § 1983 action, Miller v. Taylor, 877

F.2d 469, 472 (6th Cir. 1989), they need only prove, to prevail in their

state wrongful death action, that Thomas Figg’s death was the fault

of the Defendants; any justification must then be raised as an affirma-

tive defense to the state claim, McGee v. Commonwealth, 248 S.E.2d

808, 810 (Va. 1978). The Figgs maintain that, because a plaintiff must

satisfy a heavier burden to prevail on a § 1983 action, the court misled

the jury when it instructed that a finding against them on the federal

claim required a like finding on the state-law counterpart. See Malley-

Duff & Assocs., Inc. v. Crown Life Ins. Co., 734 F.2d 133, 147 (3d

Cir. 1984).

Despite this distinction between the § 1983 and state-law burdens

of proof, the jury instruction was not erroneous. As the Figgs con-

cede, the court correctly instructed the jury on the differing burdens

of proof for the constitutional and state-law claims. Their objection

is to what came next. After properly instructing the jury on the bur-

dens of proof for the constitutional and state-law claims, the court

went on to explain to the jury:

You can say yes or no as to whether or not there was no

excessive force, that is necessarily a finding that the officer

was reasonable in shooting Tom Figg. And if you found that

FIGG v. SCHROEDER 21

he was reasonable in shooting him in the course of his

duties, that is not a wrongful death.

This latter aspect of the instruction, though potentially misleading,

does not constitute error for two reasons. First, it does not misstate the

applicable law. Rather, it properly informs the jury that, should it con-

clude that Deputy Land acted reasonably, it should render a verdict

in Land’s favor on both the federal excessive force and the state-law

wrongful death claims. Though a defendant has the burden of proving

reasonableness on such a wrongful death claim, it is true under both

federal and state law that, once the jury found that Deputy Land acted

reasonably, he was entitled to prevail. Second, even if we were to

adopt the Figgs’ reading of the instruction and conclude that it

obscures the distinction between the federal and state burdens of

proof, it still would not be erroneous: the instructions as a whole, con-

taining a correct statement of the applicable burdens of proof, prop-

erly informed the jury of the controlling legal principles. See Spell v.

McDaniel, 824 F.2d 1380, 1395 (4th Cir. 1987).

C.

Finally, Plaintiff Wayne Attanasio asserts that the court erred in

denying his motion for a new trial on his state-law false imprisonment

claims against the Sergeants. We review for abuse of discretion a dis-

trict court’s denial of a motion for new trial or amendment of judg-

ment under Fed. R. Civ. P. 59. Nichols v. Ashland Hosp. Corp., 251

F.3d 496, 500 (4th Cir. 2001); Bristol Steel & Iron Works, Inc. v.

Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994). We will not

reverse such a decision "save in the most exceptional circumstances."

Bristol Steel, 41 F.3d at 186 (quoting Lindner v. Durham Hosiery

Mills, Inc., 761 F.2d 162, 168 (4th Cir. 1985)).

1.

The error on which Mr. Attanasio premised his motion for a new

trial was the jury’s failure to address his state-law false imprisonment

claims against Sergeants Schroeder and Anthony. Though the verdict

was read into the record on September 19, 2001, prior to the discharge

of the jury, neither the court nor counsel noticed that the jury had not

answered the four questions addressing — and had thereby not ren-

22 FIGG v. SCHROEDER

dered a verdict on — Mr. Attanasio’s false imprisonment claims. This

oversight is less surprising than it might first appear: Mr. Attanasio’s

state-law claims against the Sergeants were only two of the twenty-

two claims submitted to the jury; and the entire verdict was read aloud

in open court just before the jury was discharged. However, having

neglected to notice the omission, Mr. Attanasio failed to bring it to

the court’s attention in a timely manner; he instead raised his objec-

tion only after the jury had been discharged. As a result, the court

missed the opportunity to correct the problem by resubmitting the

unaddressed questions to the jury.

On belatedly learning that the jury had left blank a portion of its

verdict form, the court undertook to supply the missing findings by

deduction. It noted, in ruling on the motion for a new trial on October

30, 2001, that the jury had rendered a proper verdict in favor of the

Sergeants on Mr. Attanasio’s federal detention claims. Concluding

that "a finding for Mr. Attanasio on the false imprisonment claim

would conflict directly with the jury’s finding against him on the fed-

eral detention claim," the court deduced that the Sergeants were enti-

tled to prevail on the state claims as well. Opinion at 5. It accordingly

denied the motion for a new trial.

A court is obliged to harmonize inconsistencies in a jury’s

responses on a special verdict form, if it is possible to do so. Talking-

ton v. Atria Reclamelucifers, 152 F.3d 254, 261 (4th Cir. 1998) (citing

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S.

355, 364 (1962)); Ladnier v. Murray, 769 F.2d 195, 198 (4th Cir.

1985). "If, however, ‘viewed in the most generous way, the answers

are inconsistent with each other, a new trial is ordinarily required.’"

Ladnier, 769 F.2d at 198 (quoting 9 Wright & Miller, Federal Prac-

tice and Procedure § 2510 (1971)).

Here, even if we import the harmonization principle from the con-

text of inconsistent special verdicts to this situation — an omitted

general verdict12 — the court’s effort at harmonization would fail. As

12

A "special verdict" is a verdict "that gives a written finding for each

issue, leaving the application of the law to the judge." Black’s Law Dic-

tionary (7th ed. 1999). A "general verdict," by contrast, is a verdict "by

which the jury finds in favor of one party or the other, as opposed to

resolving specific fact questions." Id. The verdict at issue in this case is

a general verdict.

FIGG v. SCHROEDER 23

Mr. Attanasio correctly observes, the burdens of proof for the § 1983

and state law claims are not the same. A plaintiff bears a heavier bur-

den on a § 1983 claim, for which he must prove the illegality of the

seizure. By contrast, in order to prevail on his false imprisonment

claim, a Virginia plaintiff need only prove that he was detained; it is

for the defendant to proffer an adequate legal justification warranting

the detention. See W.T. Grant Co. v. Owens, 141 S.E. 860, 865 (Va.

1928) ("Prima facie, any restraint put by fear or force upon the actions

of another is unlawful, and constitutes false imprisonment unless a

showing of justification makes it a true or legal imprisonment." (cita-

tion omitted)); Montgomery Ward & Co. v. Wickline, 50 S.E.2d 387,

388 (Va. App. 1948). Thus, this jury could have found against Mr.

Attanasio on his § 1983 claim, and yet nevertheless have rendered a

verdict in his favor on the state-law false imprisonment claims to

which it failed to respond. Hence, the court erred in concluding that

a verdict for Mr. Attanasio on the false imprisonment claims would

"conflict directly" with the verdict in favor of the Sergeants on the

§ 1983 claims, and thus that it could supply the missing verdict.13

2.

We turn next to the court’s second ground for denying Mr. Attana-

sio’s motion for a new trial: waiver. Citing the Second Circuit for the

proposition that "[a] party waives an objection to a defective or incon-

sistent verdict if such objection is not timely made," Lavoie v. Pac.

Press & Shear Co., 975 F.2d 48, 54 (2d Cir. 1992), the court con-

13

In supplying the missing verdict and entering judgment against Mr.

Attanasio on his false imprisonment claims, the court also noted that the

jury had rendered its verdict against Robert Figg, and that "Mr. Attana-

sio’s claims were based on virtually the same factual scenario as those

of Robert Figg." Opinion at 5. This inference is not appropriate: the ver-

dict against Robert Figg did not preclude the possibility that the jury

could have found in favor of Mr. Attanasio. There were differences in the

evidence pertaining to Robert Figg and Mr. Attanasio. Significantly,

while the Sheriff’s Department had had prior encounters with Robert

Figg, there was no evidence that Mr. Attanasio was known to any of the

officers on the scene. Cf. Will v. Comprehensive Accounting Corp., 776

F.2d 665, 677 (7th Cir. 1985) ("Each plaintiff is entitled to have his case

decided separately, on a preponderance-of-the evidence standard that

itself recognizes the inevitable uncertainties in evidence.").

24 FIGG v. SCHROEDER

cluded that even were it impossible to supply the missing verdict, "the

doctrine of waiver would bar Mr. Attanasio’s efforts to secure a new

trial." Opinion at 5. We disagree.

In Lavoie, the jury had rendered a special verdict pursuant to Fed.

R. Civ. P. 49(a); on appeal, the losing party challenged the verdict as

internally inconsistent. The Second Circuit held that when an appel-

lant fails to challenge an inconsistent special verdict prior to the jury’s

discharge, any objection is waived. Lavoie, 975 F.2d at 54. Applying

this rule, the court below concluded that Mr. Attanasio had waived his

objection to the lack of a verdict on his false imprisonment claims.

While the Lavoie approach is a plausible one, our precedents require

us to take a different path. See Ladnier v. Murray, 769 F.2d 195 (4th

Cir. 1985).

In our Ladnier decision, a jury had rendered a special verdict pur-

suant to Fed. R. Civ. P. 49(a); and though neither party raised any

objection at trial, the losing side challenged the verdict on grounds of

inconsistency in its appeal. Id. at 198. Contrary to the Lavoie rule

relied on by the court below, we held in Ladnier that the failure of

a party to move to resubmit conflicting special findings to the jury for

reconciliation does not constitute waiver of the objection. Id. at 198

n.3.14 In so ruling, Chief Judge Winter explained that "the legal error

resulting from entry of a judgment based on inconsistent special inter-

rogatories may be an error of constitutional magnitude, infringing the

seventh amendment right to jury trial ‘by allowing the District Court

to usurp the jury’s function.’" Id. (quoting Mercer v. Long Mfg. N.C.,

Inc., 671 F.2d 946, 948 n.1 (5th Cir. 1982)). Accordingly, we vacated

the judgment and remanded for a new trial. See also Carter v. Rogers,

805 F.2d 1153 (4th Cir. 1986).

14

Though we announced this approach to waiver in a footnote, it none-

theless carries precedential effect as part of our Ladnier holding because

it is a "determination of a matter of law pivotal to [our] decision" in that

case. Black’s Law Dictionary (7th ed. 1999). The parties in Ladnier

failed to bring the verdict’s inconsistency to the court’s attention prior to

the jury’s discharge. Had we not concluded in note 3 that this lapse did

not waive the parties’ right to challenge the verdict on the basis of that

inconsistency, we could not have gone on as we did to entertain and

grant the aggrieved party’s request for a new trial.

FIGG v. SCHROEDER 25

Our Ladnier reasoning applies with even greater force in this situa-

tion. Here, the objection raised is to a general verdict, rather than to

a special verdict; and the problem identified is not the verdict’s incon-

sistency, but rather its nonexistence. These distinctions can only

heighten our concern that the error is of constitutional magnitude. The

court’s entry of a judgment against a plaintiff, despite the jury’s fail-

ure to render any verdict whatsoever, deprives the plaintiff of his right

to a jury’s resolution of his civil claim. Cf. Johnson v. Tsukahara, 448

P.2d 822 (Haw. 1968) (awarding new trial where jury returned verdict

for one plaintiff but with respect to second plaintiff returned blank

form, despite no objection having been raised at trial); Roadruck v.

Schultz, 77 N.E.2d 874 (Ill. App. 1948) (same). Because Ladnier is

not distinguishable on these facts, we are bound to recognize and fol-

low it. We are unable, under Ladnier, to recognize a waiver premised

on failure to object to an inconsistent verdict prior to the jury’s dis-

charge. Applying that precedent here, we must conclude that Mr.

Attanasio has not waived his objection to the jury’s failure to render

any verdict at all.

3.

Because a verdict on this unresolved question cannot be inferred

from the jury’s other findings, and because waiver is inapplicable in

these circumstances,15 we must assess the merits of Mr. Attanasio’s

15

The Sergeants also suggest that we should affirm the court’s denial

of Mr. Attanasio’s motion for a new trial because they are immune from

liability on the false imprisonment claim, and thus that count should

never have gone to the jury. The Sergeants, however, confuse federal

qualified immunity ("an entitlement not to stand trial or face the other

burdens of litigation," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)),

with the doctrine of state-law immunity that is relevant here. Under Vir-

ginia law, while it is a defense to unlawful imprisonment for an officer

to allege and prove a good faith and reasonable belief in the validity of

an arrest, De Chene v. Smallwood, 311 S.E.2d 749, 751 (Va. 1984), a

plaintiff nonetheless remains entitled to a jury determination of those

issues, cf. Wellington v. Daniels, 717 F.2d 932, 937 n.7 (4th Cir. 1983)

(reviewing jury instructions on the good faith defense); Parker v. McCoy,

188 S.E.2d 222, 226 (Va. 1972) (same). Because Virginia’s "good faith"

immunity does not spare a Virginia official the burden of a jury trial, we

reject the Sergeants’ suggestion that we uphold the judgment against Mr.

Attanasio on immunity grounds.

26 FIGG v. SCHROEDER

motion for a new trial. We find instructive the approach taken by the

Court of Appeals for the Seventh Circuit, when it grappled with a

similar problem in Adams Laboratories, Inc. v. Jacobs Engineering

Co., Inc., 761 F.2d 1218 (7th Cir. 1985). In Adams, the jury returned

a verdict for the plaintiff on a negligence claim, but it failed to render

a verdict on claims of negligent misrepresentation and breach of con-

tract. Despite this omission, the court entered judgment in favor of the

plaintiff on all three counts. Though, unlike here, the Adams court

noticed the omission and polled the jury in an attempt to clarify the

verdict before entering judgment, the Seventh Circuit concluded that

the trial court’s questioning left matters ambiguous. As a result, "the

district court denied [the defendant] its right to trial by jury on the

breach of contract and negligent misrepresentation claims when it

entered judgment against [the defendant] on these issues." Id. at 1221;

see also Johnson, 448 P.2d at 822 (holding that, where jury returned

verdict for one plaintiff but with respect to second plaintiff returned

blank form, trial court was not entitled to supply missing verdict, and

awarding new trial); Roadruck, 77 N.E.2d at 874 (same).

Our situation is much like that found in Adams: the court entered

judgment against Mr. Attanasio in an attempt to resolve the omissions

of the verdicts in a manner that would reflect the true intent of the

jury. However, because a verdict for the Sergeants on the false

imprisonment claims cannot be inferred from the jury’s decision on

the federal seizure counts, the court’s entry of judgment against Mr.

Attanasio on the false imprisonment claims results in the denial of his

right to trial by jury. As a result, the court should have granted him

a new trial. We vacate its denial of that relief, and we remand Mr.

Attanasio’s false imprisonment claims against the Sergeants for a new

trial.

V.

The sole remaining issue in these appeals relates to the attorney’s

fee award against the Sergeants. As a result of our disposition of the

Sergeants’ appeal, as set forth in Part III, supra, Ms. Williams and

John Figg are no longer prevailing parties for purposes of a fee award

under 42 U.S.C. § 1988. And when parties who prevailed at trial lose

on appeal, they cease to be entitled to attorney’s fees under § 1988.

See Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 175 (4th

FIGG v. SCHROEDER 27

Cir.), cert. denied, 121 S. Ct. 1188 (2000). Accordingly, we also

vacate the district court’s attorney’s fee award.

VI.

Pursuant to the foregoing, we affirm in part, reverse in part, vacate

in part, and remand for such other proceedings as may be appropriate.

AFFIRMED IN PART, REVERSED IN PART,

VACATED IN PART, AND REMANDED