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WDVA: State defendants not liable for Unite the Right inaction.

Byline: Rebecca M. Lightle

A Charlottesville counter-protester who claimed law enforcement stood by and watched white nationalist protesters assault him and others had no constitutional right to have officers intervene in the third-party misconduct.<br />Background<br />In response to Charlottesville's renaming of Lee Park, Jason Kessler organized the "Unite the Right" rally. He was granted a permit for the rally, but the City revoked it a week before the event, citing traffic and safety concerns. Kessler filed suit, and this court reinstated the permit.<br />Plaintiff Robert Turner alleges that in response to the ruling, Defendants Al Thomas (former Charlottesville police chief) and W. Stephen Flaherty (Virginia State Police superintendent) became "enraged," and instituted a "special policy" for the protest, "ordering [their] officers to 'stand down.'" This alleged "stand down" order mandated law enforcement to "refrain from intervening in any violent confrontations between white supremacists and counter-protesters unless given a command to do so."<br />On August 12, 2017, Turner went to the Park as a counter-protestor. Police allegedly looked on as "KKK" protesters, unprovoked, sprayed Turner in his eyes with mace, subsequently beat him with a stick, and threw bottles of urine at him. He alleges that "Charlottesville Police and Virginia State Patrol officers stood and watched [this] for more than thirty seconds, while doing nothing to intervene."<br />Turner now asserts several claims against the Defendants premised on what is known as a "state-created danger" theory of liability. He argues that Defendants Thomas and Flaherty, in their individual capacities, violated his substantive due process rights by failing to intervene in a state-created danger. He also alleges that the Defendants acted with "deliberate indifference" towards his assault, in violation of the Fourteenth Amendment. Lastly, he alleges that municipal liability extends to Defendant Charlottesville for violating his substantive due process rights. The Defendants have moved to dismiss.<br />Subject-matter jurisdiction<br />Turner specifically alleges in his complaint that each claim is against Defendants Thomas and Flaherty in their "individual capacities." This express pleading is conclusive as to the capacity of Plaintiff's claims. Since the claims are against Defendants in their individual, not official, capacities, Eleventh Amendment immunity is not implicated, and the court has subject -matter jurisdiction.<br />Qualified immunity<br />Count I: Failure to Intervene in a State-Created Danger. Here, the only individuals who engaged in affirmative conduct were the third-party criminal actors not the Defendants or their subordinates.<br />Turner does allude to active conduct by the police when they allegedly cleared out the park and "funneled" protesters into counter-protesters. But this allegedly occurred after, not before, he sustained his injuries. There was simply no affirmative act by police that created the danger that befell Turner. Framing the incident in terms of a "stand down" order is nothing more than an "artful recharacterization" of inaction as action something the 4th Circuit has said is inappropriate.<br />In fact, the 4th Circuit has never issued a published opinion finding a successful "state-created danger" claim. Turner's argument that there was "clear fair warning" that such a "stand down" order violated clearly established law collapses under the weight of controlling precedent finding there is generally no duty to intervene.<br />The 4th Circuit has explained why qualified immunity is so important in this type of case: The recognition of a broad constitutional right to affirmative protection from the state would be the first step down the slippery slope of liability. Such a right potentially would be implicated in nearly every instance where a private actor inflicts injuries that the state could have prevented.<br />Given this warning, as well as the great weight of binding precedent surveyed above, this court finds the alleged constitutional right Turner asserts against Defendants Thomas and Flaherty was not clearly established at the time of their inaction. Accordingly, qualified immunity bars Count I.<br />Count II: Supervisory Liability. While supervisory liability in the 1983 context is clearly established in this case, the constitutional violation undergirding Turner's allegation is not. The right he asserts, based on a state-created danger theory, was not clearly established on August 12, 2017.<br />To the contrary, there is simply no constitutional right to state protection from "criminals or madmen," and a state official's failure to provide such protection "is not actionable under 1983." Accordingly, qualified immunity bars Count II.<br />Count IV: Deliberate Indifference. Turner alleges that the Defendants "showed deliberate indifference" to him by implementing an unconstitutional policy, the "stand down" order, "that substantially increased the harm to [him] and ultimately caused his injuries." But there is no clearly established law supporting the novel due process right he asserts in this case.<br />Further, there is no support for his position that a "deliberate indifference" standard is proper to satisfy the "shocks the conscience" element of his claim, outside the custodial context, based on a state-created danger theory. Turner's citation to non-binding authority is insufficient to articulate a clearly established right here. Accordingly, qualified immunity bars Count IV.<br />Municipal liability<br />Plaintiff has asserted a Monell claim (Count III) against Defendant Charlottesville under the same state-created danger theory discussed above. The court has explained why the individual Defendants are entitled to qualified immunity, and the supporting authorities all lead to the same conclusion: Turner's underlying claims simply fail on the merits, too. With no undergirding violation, the City has no 1983 municipal liability. Accordingly, Count III will be dismissed for failing to state a claim.<br />Motion to dismiss granted.<br />Turner v. Thomas, Case No. 3:17cv64, May 29, 2018. WDVA at Charlottesville (Moon). VLW No. 018-3-221, 15 pp.

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Title Annotation:US District Court for the Western District of Virginia
Author:Lightle, Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Jun 3, 2018
Words:940
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