ANALYSIS OF JANUARY 16, 2020 SUPREME COURT OPINION
(Posted January 16, 2020) We have our first published opinion of the New Year from the Supreme Court of Virginia. Today, in Cromartie v. Billings, the justices take up civil rights claims in a false-arrest lawsuit.
Our story begins simply enough: A Petersburg police officer, Billings, stopped a car for speeding. The driver, Cromartie, was a small 56-year-old woman with numerous health issues. When she stopped her car, she started to get out, but Officer Billings told her to get back inside. She complied. The officer, despite having seen her size, decided to wait for a backup officer before approaching her car. (In fairness to him, this might be department policy; the opinion doesn’t address this and I have no way of knowing.)
When the second officer arrived, Officer Billings approached Cromartie’s car. He saw her sitting in the driver’s seat, talking on a cell phone. The car’s engine was off. He knocked on her window. Cromartie looked up from her phone call and said “What” through the window. She then went back to her phone conversation as Officer Billings said, “I need you to roll down your window.” She gave no indication of having heard him, so after a few seconds, he knocked again.
Three seconds later, this minor encounter went south in a hurry. Officer Billings opened the door, grabbed Cromartie by the arm, and yanked her out of the car. He forced her face-down onto the pavement, placing his weight on her back – and inflicting several injuries in the process. He and his backup officer handcuffed her, stood her up, and placed leg shackles on her. They then sat her on the curb near her car.
It gets worse. Officer Billings, evidently knowing little about search-and-seizure law, went twice into Cromartie’s car and started searching her purse. Cromartie asked why he was doing so. He answered that she was under arrest and he needed her identification. It evidently did not occur to him to ask her for her name and license.
An ambulance crew soon arrived, and an emergency medical technician asked Cromartie where her identification was. She gave the EMT the requested information and her correct name. This was the first time anyone had asked for it.
In his second search of Cromartie’s car, Officer Billings found a small metal container. Today’s opinion states that Officer Billings believed that it might contain residue of marijuana or cocaine. That prompted a trip to the magistrate’s office. There, Officer Billings gave the magistrate a sanitized version of his actions, and obtained warrants charging Cromartie with possession of marijuana and obstruction of justice.
How do we know that the officer’s sanitized version wasn’t true? Because of the wonders of modern technology: a body camera. Officer Billings knew that he was recording the entire incident, yet he still chose to spin the events in his favor. But I digress.
At the ensuing criminal trial, Cromartie’s lawyer moved to suppress the fruits of the search of Cromartie’s purse and car. The prosecutor chose not to oppose that motion, so the court dismissed the possession and obstruction charges and tried Cromartie for speeding.
This litigation ensued. Cromartie sued Officer Billings, asserting numerous claims including assault, battery, and malicious prosecution. She also stated §1983 claims for unreasonable force and false arrest, plus a state-law statutory claim for an unlawful search. At a jury trial, the judge struck the last three claims, based on immunity. The jury then decided the remaining common-law claims in Cromartie’s favor, awarding her damages of about $23,000.
Cromartie appealed the dismissed counts. Today, the Supreme Court unanimously reverses – but that’s only half the story.
The court first takes up the unlawful-search claim. Virginia has a statute that permits a civil action for such a search, because mere exclusion of the evidence – assuming the search turns up any evidence – isn’t likely to fully compensate someone whose right have been violated. The trial court held that sovereign immunity shielded the officer from liability, but today the justices rule that his actions constituted wanton and willful misconduct, so the immunity won’t help him.
Next, the court discusses the §1983 claims. Those are subject to qualified-immunity analysis, and again, the trial court had ruled that that doctrine protected Officer Billings from liability. But that doctrine, too, has important limits. It applies unless a reasonable officer wouldn’t have been aware that he was violating clearly established rights.
The original basis of the traffic stop, speeding, isn’t a crime but a traffic offense, so there was no cause to arrest her or search her car and purse for that. As the chief justice notes in today’s opinion, a search incident to a lawful arrest has to be for evidence of the crime, and one would not expect to find evidence of speeding inside a lady’s purse. As for the second, merely declining to roll down one’s window after having been asked once isn’t obstruction of justice under clear precedent.
The Supreme Court rules today that no immunity protected the officer from liability, so it sends these three claims back for trial. But when addressing the scope of the retrial, the justices note that the jury has already resolved the underlying facts, in Cromartie’s favor. Officer Billings didn’t appeal that judgment, so the jury’s findings are the law of the case. That means that liability is established, so the retrial will be on the issue of damages only.
This matters a great deal, because one of the remedies for violation of civil rights is §1988 attorneys’ fees. Billings is going to have to pay Cromartie’s lawyer, in addition to any other damages the second jury may award.
I’ll offer three closing notes about this remarkable ruling. First, the opinion describes Officer Billings as “a former police officer.” I have no idea whether this incident led to his former-officer status; the City may have fired him or he may have resigned or retired for unrelated reasons. But if he was terminated, the City may not be indemnifying him for the damages and fees that Cromartie is entitled to. He was represented in this appeal by a lawyer in private practice, not a City Attorney, though that might be a nod to specialized legal expertise.
Second, the closing lines of today’s opinion state that while retrial will focus on damages only, “we note that evidence ordinarily presented for liability purposes may also be relevant to the question of compensatory and punitive damages, an award of costs, interest, attorneys’ fees, and such other damages as Cromartie sought in her complaint.” That means that the second jury will get to hear the whole story; not just a dry recitation of Cromartie’s injuries and medical costs.
Third, if this case were in the federal system, the officer would likely serve a Rule 68 offer of judgment on Cromartie, to try to limit his liability. But we’re in state court, and Virginia doesn’t have a Rule 68 equivalent. There’s no way for Billings to make this case go away now, except to pay what Cromartie demands. I suppose Chapter 7 is an option, though I don’t know if intentional-act liability like this can be discharged in bankruptcy.
In my previous gig in Virginia Beach City Hall, I defended numerous §1983 suits. We had an excellent set of risk managers, and I had a terrific boss who understood which cases we could try and which ones we had to settle. Thankfully, we almost never had to try a case with as much merit as this one has.