Kerrin Barrett v. PAE Government Services, Inc. ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1394
KERRIN BARRETT,
Plaintiff - Appellant,
v.
PAE GOVERNMENT SERVICES, INC.; AREYAL HALL, Officer, Arlington
County Police Department; WILLIAM K. LIETZAU; SEAN HORNER;
SHANEDRIA WILBORN; BRIAN GALWAY; JOSHUA LUZIER, Officer,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia at
Alexandria. Anthony John Trenga, District Judge. (1:18-cv-00980-AJT-TCB)
Argued: May 28, 2020 Decided: September 15, 2020
Before DIAZ and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Traxler wrote the opinion, in which Judge
Diaz and Judge Thacker joined.
ARGUED: Peter Charles Cohen, CHARLSON BREDEHOFT COHEN & BROWN, P.C.,
Reston, Virginia, for Appellant. Ara Loris Tramblian, BANCROFT, MCGAVIN,
HORVATH & JUDKINS, P.C., Fairfax, Virginia; Charles McNeill Elmer, JACKSON
LEWIS P.C., Reston, Virginia, for Appellees. ON BRIEF: Hans H. Chen, CHARLSON
BREDEHOFT COHEN & BROWN, P.C., Reston, Virginia, for Appellant. Ryan Samuel,
COUNTY ATTORNEY’S OFFICE, Arlington, Virginia, for Appellees Areyal Hall, Brian
Galway, and Joshua Luzier. Crystal L. Tyler, Meredith F. Bergeson, JACKSON LEWIS
P.C., Richmond, Virginia, for Appellees PAE Government Services, Inc., William Lietzau,
Sean Horner, and Shanedria Wilborn.
2
TRAXLER, Senior Circuit Judge:
Plaintiff Kerrin Barrett brought this action under 42 U.S.C. § 1983 and Virginia
state law against Arlington County police officers Areyal Hall (“Hall”) and Joshua Luzier
(“Luzier”), and Arlington County mental health examiner Brian Galway (“Galway”)—
collectively the “Arlington County defendants.” Plaintiff alleges that the Arlington County
defendants unlawfully seized and detained her for a mental health evaluation in violation
of the Fourth Amendment and falsely imprisoned her in violation of Virginia state law.
Plaintiff also sued her employer, PAE Governmental Services, Inc. (“PAE”), and three of
PAE’s employees, Sean Horner (“Horner”), Shanedria Wilborn (“Wilborn”), and William
Lietzau (“Lietzau”)—collectively the “PAE defendants.” She alleges that the PAE
defendants conspired with the Arlington County defendants to unlawfully seize her and
falsely imprison her, also in violation of 42 U.S.C. § 1983 and Virginia state law.
The district court granted the PAE defendants’ motion to dismiss the Complaint in
its entirety, and granted the Arlington County defendants’ motion to dismiss the state law
conspiracy claims. The district court later granted summary judgment to the Arlington
County defendants on the remaining federal and state law claims. 1 We now affirm.
I.
Plaintiff lived and worked in the Middle East for six years—from 2010 to 2016.
From April 2012 to July 2013, she worked as a contractor for PAE in Kabul, Afghanistan,
1
The operative Complaint for purposes of this appeal is the Second Amended
Complaint filed on October 31, 2018.
3
on a U.S. State Department contract that was dedicated to improving the rule of law in that
country. In 2014, Plaintiff moved to Dubai in the United Arab Emirates. Plaintiff claims
that she became a victim of constant stalking and harassment by Pakistani, Bangladeshi,
and other Southeast Asian men while she was living in Dubai, and that the stalkers followed
her when she traveled into Oman and Thailand.
Plaintiff moved back to the United States in early 2016. In May of that year, she
began working for PAE on another U.S. State Department contract. Plaintiff worked out
of PAE’s Arlington, Virginia office, and “was responsible for gathering and reporting on
prison data, which included women and children incarcerated in the prisons, high value
targets, and members of ISIS, the terrorist group in the Middle East.” J.A. at 23. As
explained in more detail below, in July 2017, Plaintiff informed Defendants Horner and
Wilborn that she was being stalked and harassed by Southeast Asian men, who were
reporting back to the Dubai-based network on their cell phones, and that she had taken
steps to identify her stalkers and their location in the United States. After consulting with
PAE’s legal staff, Horner contacted the Arlington County Police Department for assistance.
Defendants Hall and Luzier responded to the call, and a decision was made to issue an
emergency custody order (“ECO”) for an involuntary mental health evaluation. The
evaluation was performed by Defendant Galway with the Virginia Department of Health
Services, who determined that there was probable cause to believe that Plaintiff was
suffering from Post-Traumatic Stress Disorder (“PTSD”), and possibly a delusional
disorder, and that she posed a genuine danger to herself and others. Galway filed a petition
4
for a temporary detention order (“TDO”) for further evaluation and treatment of Plaintiff,
which was granted by a state magistrate judge.
II.
For purposes of the appeal from the district court’s grant of summary judgment to
the Arlington County defendants, we relate the undisputed facts that the PAE defendants
and the Plaintiff reported to them during their investigations.
A. The PAE Defendants
The events that led the PAE defendants to contact the Arlington County police for
assistance began in July 2017, when Plaintiff reported the stalking and harassment to
Defendants Horner and Wilborn. Plaintiff reported that two incidents had occurred in or
near the PAE offices, and they were of particular concern to Horner and Wilborn. First,
Plaintiff claimed that a strange “man who fit the pattern of her stalkers came up to her while
she was sitting at her desk and said, ‘Hello, [long pause] Kerrin’ before leaving.” J.A. 28
(alteration in original). Second, Plaintiff claimed that she saw a Bangladeshi stalker in the
courtyard between the PAE office building and the adjacent Verizon building, and that the
man urgently grabbed his cell phone and began talking on it when he saw her. When she
returned through the courtyard, Plaintiff approached the security guard in the Verizon
building and asked him if he knew anyone who met the description of the man. The
security guard told her that there were “a bunch of them up on the 11th floor and that they
work for [the] FDIC.” J.A. 468.
Plaintiff had previously told her supervisor, Defendant Lietzau, that she believed
she was being stalked and harassed by Southeast Asian men. She also informed him about
5
the courtyard incident and asked for his advice. According to Lietzau, Plaintiff also asked
him to “go with her to kind of confront these people.” J.A. 564. At Lietzau’s suggestion,
Plaintiff instead reported the stalking incident to Defendant Horner, who was PAE’s
Security Manager. Horner testified that Plaintiff also told him that she was being stalked
and harassed by:
a coordinated, sophisticated complex[] network of primarily Southeast Asian
males, always different men following her, different vehicles following her,
having the ability to follow her, track her phone to the extent where they
knew what floor in a building she was at, that her e-mails were compromised.
She thought her house was bugged. . . . They would do things like knocking
on her door in the middle of the night. They would whistle at her dogs to
make them bark. They would run into her car . . . and then take off.
J.A. 163. Plaintiff also told Horner that she had discovered that the stalkers were
centralized on the 11th floor of the Verizon building. According to Horner, Plaintiff “was
convinced that that’s where the centralization[,] or hive was the word she used . . . , were
located and she was hoping to figure out a name or something like that to be able to figure
out who they are, track them down, who they’re sending information to.” J.A. 137-38.
Horner testified that Plaintiff “was hoping that [he] could help her gain access to [the 11th
floor of the building] to help identify potentially one of the stalkers.” J.A. 136. Horner
advised Plaintiff that he could not do so, and that she should not either. According to
Horner, Plaintiff told him that she did not own a firearm, but was considering getting one.
Horner asked Plaintiff to document her concerns in a written report. However, in
an ensuing series of emails, Plaintiff accused Horner of being derisive and disrespectful,
and cut off their communication:
6
To be clear, there is absolutely nothing that can be done about my situation
legally. These networks operate just inside the law, here and abroad. My
one hope was that I could get assistance identifying who they are reporting
back to – or at least the name of one of these “followers,” since I now finally
determined their location on [Floor] 11 in the adjacent building.
Once again, there is no point in taking any more of your valuable time, nor
anyone else’s. I will, however, restate that I now am fully aware of the
complexity and severity of the war we are fighting, because I live it every
day.
J.A. 208. In reply, Horner “strongly recommend[ed]” that Plaintiff not try to “identify the
perpetrators or confront[] them.” J.A. 211. He also contacted Defendant Wilborn, a PAE
Human Resources manager, and asked Wilborn to speak to the Plaintiff. Wilborn
documented her conversation with Plaintiff in an Arlington County police report:
[Plaintiff] stated that when she moved back to the [United States from
Dubai], a hive of Southeast Asian men followed her here. According to
[Plaintiff], these men have been to her home, knocking on her door at odd
hours, sitting outside of her home in black cars and following her every
move. I asked [Plaintiff] how these men knew where she lived and she
responded that her phone was hacked and they are tracking her through her
phone. She also mentioned that she has been followed to work, surrounded
in the garage and surveilled in the courtyard. She says that there is a nest of
them working for FDIC on the 11th floor of the Verizon building. [Plaintiff]
says that on more than one occasion, she has seen these men on phones in
the courtyard talking to someone in Dubai (the hub) about her. She said that
she needs the phone that the men are talking on. I asked her how she planned
to get the phone and she said that she just has to walk up to them and take it.
She mentioned that her Afghanistan friends advised that the only way to
minimize the threat is to kill them. “They are an uncivilized society and they
have to be killed.” I asked her what she meant by “them.” Her response was,
“all Pakistani men.” “They just have to be killed, like Trump said, we have
to turn the key, lock them out and drop a bomb on Pakistan.” She also said
that she wishes that when she was in Afghanistan, she should have told her
Afghanistan friends to kill “them.” She also mentioned that one of these men
came here to her desk at work and said “hello Kerrin.” She also said that she
followed one of them up to the 11th floor of the Verizon building, but she
couldn’t gain access beyond the floor level. She also says that she has a
Glock and that she goes to the range to fire it. She takes her phone with her
7
so that the stalkers know that she is there because they are tracking her
through her phone.
J.A. 218-19.
Wilborn testified that the majority of PAE’s contracts involve State Department
support for the Iraq and Afghanistan embassies, and that anywhere from 10 to 15 percent
of PAE’s employees could fit the description of Plaintiff’s alleged stalkers. Wilborn also
testified that it would have been difficult for a non-PAE employee to gain access to the
PAE offices and find Plaintiff’s desk. Given the strong opinions that Plaintiff had voiced
about Middle Eastern Asian men, and her view that there was no legal way to solve her
problem, Wilborn was concerned for the safety of Plaintiff and the other PAE employees.
She worried that Plaintiff might mistakenly identify a PAE employee as a stalker, perceive
them as a threat, and harm herself or the “stalker” in “an effort . . . to defend herself in the
way that she described” to Wilborn. J.A. 235. After meeting with Plaintiff, Wilborn and
Horner met with PAE’s legal staff, and a decision was made to have Horner contact the
Arlington County Police Department for assistance.
B. The Arlington County Defendants
Officers Hall and Luzier were assigned to respond to the call for assistance at the
PAE offices. The dispatch referenced an “employee who has been becoming increasingly
dillusional [sic] and believes is being followed by people in an adjacent building. . . . [The
reporting person] advises that employee has mentioned recently about owning a firearm
and only way to get rid of people following her is to use the firearm.” J.A. 272.
8
The officers met with Horner when they arrived, who reported the substance of the
conversations that he and Wilborn had with Plaintiff. Plaintiff, however, was not at work.
The officers suggested that Horner contact the Arlington County Department of Human
Services (“DHS”) directly for their guidance and suggestions, and to call the officers back
if they needed further assistance. Horner contacted DHS the same day and spoke with
Alexis Mapes, the Emergency Services Supervisor. Mapes documented her conversation
with Horner in an email to her staff, which included Defendant Galway:
[Horner] [r]eports an employee has been increasingly paranoid while at
work, citing being followed by Middle Eastern men – who are supposedly
following her at work, at home, and whistling at her dog; has described
following said men to nearby building to determine who they are and reports
that she “found the nest.” Employee reported to [Horner] that she did not
have a weapon, but made another report to HR that she did have a weapon
and the “only way to solve this is to kill them.”
. . . . [Horner] plans to consult with HR [and] ask the police to come out to
obtain stalking statement from employee when she arrives for the day, with
likelihood of employee exhibiting concerning behavior to warrant an
ECO/assessment.
J.A. 276. Horner contacted the Arlington County Police Department the following day and
requested that Officers Hall and Luzier be dispatched to PAE’s offices.
When the officers arrived, they met with Horner again and also spoke directly to
Wilborn about her conversation with Plaintiff. The officers then talked to Plaintiff and
Wilborn in a conference room. Plaintiff was even-keeled and not disheveled in her
appearance. According to Plaintiff, she was initially under the impression that the officers
were there to help her investigate and identify her stalkers, but came to realize otherwise
when the questioning began. She testified that Officer Luzier was hostile and
9
unprofessional in his behavior, and dismissive of her concerns. Nevertheless, Plaintiff
related the substance of the stalking and harassment to the officers, including that she was
being followed by different Asian men in black SUVs, and that they “report back on the
phones, and it seems to be a network of people doing it.” J.A. 489. She told them about
the man in the courtyard and that she had spoken to the security guard in the building. She
told them that she had taken steps to become a “hard target” by installing a dash cam in her
car and a camera in the front of her home, having dogs, and becoming more vigilant and
aware. Plaintiff confirmed to the officers that she owned a Glock pistol, but said it was
stored in a closet in her home. She denied telling Wilborn that she would go to the range
to practice with her Glock, but she admitted that she had taken an NRA self-defense course
in May 2017 to obtain a carry permit under Virginia law. She said she used an NRA-
provided gun for the class and had not yet obtained the permit. With regard to Wilborn’s
report of her talking about “killing” the stalkers, she said that this was a misunderstanding;
she was only referring to the cultural differences between the Middle East and the United
States as to how such situations would be handled. She told the officers that she had no
intent to harm her stalkers, but that “[h]opefully if something happens, I’ll have the courage
to defend myself.” J.A. 271.
During the interview, Officer Luzier left the conference room on a couple of
occasions. He spoke with Wilborn about her concerns. He contacted the Fairfax County
Police Department for information about Plaintiff’s reports, but received no response. And
he contacted DHS and was told they had no history of mental health encounters with
Plaintiff.
10
Under Virginia law, a police officer may take a person into custody without prior
judicial approval and transport that person involuntarily for a mental health evaluation
pursuant to an ECO if the officer:
has probable cause to believe that any person (i) has a mental illness and that
there exists a substantial likelihood that, as a result of mental illness, the
person will, in the near future, (a) cause serious physical harm to himself or
others as evidenced by recent behavior causing, attempting, or threatening
harm and other relevant information, if any, or (b) suffer serious harm due to
his lack of capacity to protect himself from harm or to provide for his basic
human needs, (ii) is in need of hospitalization or treatment, and (iii) is
unwilling to volunteer or incapable of volunteering for hospitalization or
treatment.
Va. Code Ann. § 37.2-808.A; see also id. § 37.2-808.G (“A law-enforcement officer who,
based upon his observation or the reliable reports of others, has probable cause to believe
that a person meets the criteria for emergency custody . . . may take that person into custody
and transport that person to an appropriate location to assess the need for hospitalization or
treatment without prior authorization” from a magistrate judge.). After considering all of
the information presented to them, the police officers made the decision to issue an ECO,
and Plaintiff was transported to the Virginia Hospital Center for a mental health evaluation.
Once an individual is taken into custody by police officers pursuant to an ECO, the
individual must be evaluated by “a person designated by the community services board
who is skilled in the diagnosis and treatment of mental illness and who has completed a
certification program approved” by the Department of Behavioral Health and
Developmental Services. Va. Code Ann. § 37.2-808.B. The evaluation must “be
conducted immediately. The period of custody shall not exceed eight hours from the time
the law-enforcement officer takes the person into custody.” Id. § 37.2-808.G.
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Defendant Galway was assigned to perform Plaintiff’s evaluation. Galway
reviewed the email that he received from Mapes, documenting her conversation with
Horner. He spoke with Wilborn, who confirmed the information that she had reported to
the police. He also spoke with Lietzau, who told him that he did not think Plaintiff would
hurt anyone and that he would not be concerned if Galway decided not to seek an order of
commitment. However, Lietzau testified that the statements Plaintiff had made to Horner
and Wilborn were “slightly more pointed and harsh sounding, more dangerous sounding,
than the verbal statements” that Plaintiff had made to him. J.A. 592. During the call,
another work colleague entered Lietzau’s office, who agreed that he did not think Plaintiff
posed a threat to others. Although there is no evidence that Galway heard the statement of
the other coworker, Lietzau testified that he would have given this information to Galway.
Galway also reviewed the medical records and spoke with Dr. Peter Liu, the
emergency room physician. Dr. Liu consulted with a psychiatrist, Dr. Peggy Lomax, and
concluded that Plaintiff was suffering from a chronic paranoia disorder, with an acute
episode. Dr. Liu concluded that “further investigation is necessary to either rule in
delusional paranoia [disorder] [versus] actual[ly] being stalked by multiple middle eastern
men.” J.A. 386. Dr. Liu also advised Galway that he “felt, given that she was refusing
treatment . . . and based on what she had been saying, that he was concerned that she might
put herself or others at risk.” J.A. 351.
When Galway interviewed Plaintiff, she reiterated her claims that she was being
stalked and harassed by the Southeast Asian men. She denied that she was undergoing
mental health treatment, and repeatedly refused to voluntarily admit herself for an
12
evaluation. She told Galway that she did own a gun, but that it was locked away. She also
told Galway that she was willing to surrender it. She agreed to seek outpatient care, but no
provider or timeframe was discussed. Galway testified that he did not get the impression
that Plaintiff would follow through. Plaintiff testified that it was her impression that she
and Galway were “horse trading” or “bargaining” over the gun and outpatient care, and she
“was hopeful that if [she] answered correctly, then [she] would be let go.” J.A. 503.
After completing his evaluation, Galway’s assessment was that Plaintiff was
suffering from PTSD and possibly from a delusional disorder. Galway returned to the DHS
office to discuss the case with Mapes. They discussed whether a less restrictive setting
would be appropriate under the circumstances, and whether Plaintiff was likely to seek
treatment voluntarily. They also discussed the conflicting information about Plaintiff’s
possession of a gun and her prior use of the gun, as well as Plaintiff’s reported statements
to Wilborn about killing others. They then took the case to a DHS team meeting with their
colleagues. The consensus decision was that the risk that Plaintiff might harm herself or
others was too high, and that she needed inpatient evaluation and treatment.
Mapes documented the meeting, and the basis for the decision, in her affidavit. She
concurred that Plaintiff appeared to suffer from PTSD and paranoia. She determined that:
there was a substantial likelihood that, due to her mental illness, she would
cause harm to one of the “stalkers” or to herself by confronting one of the
“stalkers” in the near future, given: a) Plaintiff’s conflicting statements about
whether she had a gun; b) a stated need for the stalkers to be killed; and c)
Plaintiff’s report that she had recently followed a “stalker” into a nearby
building and claimed a “stalker” had come to her desk at work.
13
J.A. 414. This “raised a substantial concern that Plaintiff would mistake an innocent person
for a ‘stalker’ and either commit an act of violence or take some action to cause one of the
men to defend themselves and harm her.” J.A. 414. Also,
Plaintiff did not appear to understand how her perceptions and paranoia were
impacting her life, safety, and livelihood. She followed a stranger, repeatedly
called the Fairfax police, and jeopardized her employment through her
actions. Plaintiff needed mental health treatment for these issues, refused to
seek such treatment, and told Mr. Galway she had never sought mental health
treatment. Because she told Mr. Galway she had never sought mental health
treatment, we had no way of contacting her mental health provider to obtain
collateral information about [her].
J.A. 415. Accordingly, Mapes “concluded Plaintiff clearly met the criteria to seek a [TDO]
from the magistrate and so advised Mr. Galway.” J.A. 414.
Under Virginia law, the magistrate judge, upon sworn petition by a mental health
examiner, will issue a TDO “if it appears from all evidence readily available, including any
recommendation from a physician, clinical psychologist, or clinical social worker treating
the person, that the person” satisfies the same criteria required for the issuance of an ECO.
Va. Code Ann. § 37.2-809.B. “The magistrate shall also consider, if available, (a)
information provided by the person who initiated emergency custody and (b) the
recommendations of any treating or examining physician licensed in Virginia either
verbally or in writing prior to rendering a decision.” Id. In this case, the magistrate judge
agreed that there was probable cause to issue a TDO, and Plaintiff was detained for further
evaluation and a commitment hearing. In accordance with the Virginia statutes, an
independent medical examiner was assigned to evaluate the Plaintiff. The examiner
14
concluded that Plaintiff did not meet the criteria for involuntary commitment, and the case
against Plaintiff was dismissed. See Va. Code Ann. §§ 37.2-813 through -817. 2
C.
Plaintiff filed a complaint under 42 U.S.C. § 1983 against the Arlington County
defendants for unlawful seizure under the Fourth Amendment. Plaintiff also brought §
1983 claims against the individual PAE employees, alleging that they conspired with the
Arlington County defendants to violate her rights. Plaintiff also alleged that the Arlington
County defendants falsely imprisoned her, and that the Arlington County defendants and
the PAE defendants conspired to falsely imprison her and violate her civil rights, all in
violation of Virginia state law.
In its first order, the district court granted the PAE defendants’ motion to dismiss
the § 1983 counts against the individual PAE defendants and the state law conspiracy
counts against all of the PAE defendants. The district court also granted the Arlington
County defendants’ motion to dismiss the state law conspiracy counts. In its second order,
the district court granted summary judgment to the Arlington County defendants on the
remaining federal and state law claims. We affirm both decisions. 3
2
Although it is not entirely clear whether the independent examiner or the
magistrate judge were made aware of it, Plaintiff had been seeing a psychologist who had
diagnosed her with PTSD—contrary to her denials of any such treatment to the Arlington
County defendants.
3
Plaintiff does not appeal the district court’s dismissal of the § 1983 claims against
Defendant Lietzau, the false imprisonment claim against Defendant Galway, or the claims
that Lietzau and PAE conspired with Galway to violate her constitutional rights and falsely
imprison her. To the extent Plaintiff’s § 1983 claims alleged procedural due process claims
(Continued)
15
III.
We begin with the district court’s decision to grant summary judgment to the
Arlington County defendants on Plaintiff’s § 1983 claims, and to Officers Hall and Luzier
on the false imprisonment claims. We review the decision to grant summary judgment de
novo. See Cybernet, LLC v. David, 954 F.3d 162, 167 (4th Cir. 2020). “A grant of
summary judgment is proper when no genuine dispute of material fact exists for trial. In
making this determination, we view the evidence in the light most favorable to the non-
moving party and draw all reasonable inferences in that party’s favor.” Id. at 168 (internal
citations omitted). “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
A. Federal Claims Under § 1983
Qualified immunity bars § 1983 actions against government officials in their
individual capacities “unless (1) they violated a federal statutory or constitutional right,
and (2) the unlawfulness of their conduct was clearly established at the time.” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks omitted); see also
Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015). “Qualified immunity balances two
under the Fifth Amendment, Plaintiff has also abandoned these claims. In supplemental
briefing, Plaintiff agreed that the district court properly confined its analysis of her claims
strictly to the Fourth Amendment, and that the district court’s orders finally disposed of all
aspects of her claims against all defendants.
16
important interests—the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). It “gives government officials breathing room to make reasonable but
mistaken judgments, and protects all but the plainly incompetent or those who knowingly
violate the law.” Stanton v. Simms, 571 U.S 3, 5 (2013) (per curiam) (internal quotation
marks omitted). Accordingly, even if a court finds or assumes that a government official
violated an individual’s constitutional rights, the official is entitled to immunity so long as
the official did not violate clearly established law. 4 “Clearly established means that, at the
time of the [official’s] conduct, the law was sufficiently clear that every reasonable official
would understand that what he is doing is unlawful. In other words, existing law must have
placed the constitutionality of the [official’s] conduct beyond debate.” Wesby, 138 S. Ct.
at 589 (internal quotation marks and citations omitted).
The Fourth Amendment protects the people “against unreasonable searches and
seizures.” U.S. Const. amend. IV. Determining whether a person’s Fourth Amendment
rights have been violated in the mental health context requires us to determine whether the
officials had probable cause to seize the person for an emergency mental evaluation. See
Bailey v. Kennedy, 349 F.3d 731, 739 (4th Cir. 2003). Such probable cause exists “when
4
See Pearson v. Callahan, 555 U.S. 112, 236 (2009) (“The judges of the district
courts and the courts of appeals [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.”).
17
the facts and circumstances within the defendant’s knowledge and of which the defendant
had reasonably trustworthy information were sufficient to warrant a prudent man to believe
that the person poses a danger to himself or others.” Goines v. Valley Cmty. Servs. Bd.,
822 F.3d 159, 172 (4th Cir. 2016) (internal quotation marks omitted).
“Because probable cause deals with probabilities and depends on the totality of the
circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a neat
set of legal rules.” Wesby, 138 S. Ct. at 586 (internal citations and quotation marks
omitted). It “is a practical, nontechnical conception that addresses the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” Bailey, 349 F.3d at 739 (internal quotation marks omitted). This is
particularly true in the mental health context where police officers and mental health
professionals are called upon to make “a number of difficult judgment calls” in their efforts
to protect both the individual and the public from potential dangers, Goines, 822 F.3d at
170, and there is a “distinct lack of clarity in the law governing seizures for psychological
evaluations,” Raub, 785 F.3d at 882 (internal quotation marks omitted).
The question before us then is to determine whether, based upon the information
that was presented to them, Defendants Hall, Luzier, and Galway had probable cause as a
matter of law to detain Plaintiff for an emergency mental health evaluation or, if they did
not, whether established law was “sufficiently clear that every reasonable official would
understand that what he is doing is unlawful.” Wesby, 138 S. Ct. at 589 (internal quotation
marks omitted). The district court held that the officers and Galway were entitled to
qualified immunity from suit, and we agree.
18
The crux of Plaintiff’s argument on appeal, as it was below, centers on her testimony
that she has been the victim of ongoing harassment and stalking by Southeast Asian men,
both overseas and in the United States. But instead of helping her investigate the stalking,
the Arlington County defendants disbelieved and dismissed her claims and took her into
custody for an emergency psychological evaluation without probable cause. In support,
Plaintiff relies upon the fact that she told the officers that she had no intention of harming
anyone; that she did not make some of the statements that Horner and Wilborn reported to
the Arlington County defendants; and that others were misunderstood or taken out of
context. For example, Plaintiff denies using the terms “hive” or “nest” to describe the
location of the stalkers on the 11th floor of the Verizon building; denies that she used the
term “hub” to describe the location of the Dubai-based network of stalkers; denies that she
told Horner that she did not own a gun; admits that she told Wilborn that she owned a gun,
but denies that she told her that she practiced at the range with it; and denies that she told
Wilborn that she had to take a stalker’s phone to find out who is behind the stalking. She
does not deny her comments about “killing” Middle Eastern persons, but contends that
these comments were taken out of context or misunderstood by Wilborn. According to
Plaintiff, she was only referring to the cultural differences between the Middle East and the
United States in how such matters would be handled.
As the district court properly concluded, however, Plaintiff’s asserted disputes of
fact “relate to what Plaintiff said or did before her behavior was reported” to the Arlington
County defendants, and “whether Plaintiff’s statements [to Horner and Wilborn] were
taken out of context.” J.A. 774. These are not material factual disputes because we must
19
evaluate the officials’ conduct in light of the totality of the facts and circumstances that
were presented to them at the time. As the district court explained, “there is no genuine
factual dispute as to what information Defendants Hall, Luzier, and Galway had before
making the decision to issue the ECO and petition for the TDO, including what Horner,
Wilborn, or Plaintiff said” to them. J.A. 774. Thus, the question of whether probable cause
existed is based upon the totality of the facts and circumstances presented to the Arlington
County defendants, including the reports of all of the persons involved when they made
the difficult judgment call to detain Plaintiff for the emergency mental health evaluation. 5
1. Defendants Hall and Luzier
We hold that the facts and circumstances within the police officers’ “knowledge and
of which [they] had reasonably trustworthy information were sufficient to warrant a
prudent man to believe” that Plaintiff posed a danger to herself and others. Goines, 822
F.3d at 172.
First, it is undisputed that Plaintiff was calm and not disheveled in her appearance,
and that she denied any intent to harm her stalkers. But from the point of view of the
officers, Plaintiff’s account to them was largely consistent with the most troubling
5
Plaintiff argues that the district court should not have relied upon Wilborn’s
written police statement because there is no evidence that the written statement was
provided to the police before they issued the ECO. However, even if it is true that Wilborn
wrote her statement after the ECO was issued, Defendants Horner and Wilborn testified
that the information contained therein (including Wilborn’s conversation with Plaintiff)
was provided to the police officers when they arrived at the PAE offices. Accordingly, we
hold that the district court properly relied upon the written statement, and that we may do
so as well.
20
information that Horner and Wilborn had reported to them. Plaintiff told the officers that,
while she might be paranoid, she believed that she was being stalked and harassed by
Southeast Asian men under the direction of the Dubai-based network. She told the officers
that she had taken steps to become a “hard target” for her stalkers, that she had approached
the security guard in the adjoining building in an effort to identify the stalker in the
courtyard and that, in doing so, she had determined where her Dubai-based stalkers were
centralized. Plaintiff told the officers that, despite at least four prior calls to the Fairfax
Police Department, nothing had been done to stop the harassment. Plaintiff also admitted
that she told the officers that she owned a firearm, that she had recently taken a firearms
course to obtain her concealed weapons permit, and that she hoped she would have the
courage to defend herself if necessary.
According to the reports of Lietzau and Horner, Plaintiff had sought their assistance
to gain access to the adjoining building in order to identify and confront her stalkers. And,
when Plaintiff suspected that Horner disbelieved her claims, she told him that she was
“fully aware of the complexity and severity of the war we are fighting because I live it
every day.” J.A. 208. Wilborn’s account of Plaintiff’s statements to her were even more
troubling. Plaintiff told Wilborn that she owned a Glock pistol, went to the range to
practice with it, and took her cell phone (which was being tracked) with her so that her
stalkers would know she was there. Plaintiff also told her that there was no legal means to
deal with her stalkers and, although she made no direct threat to kill her stalkers, she made
several references to killing such “uncivilized” Middle Eastern men, and she told Wilborn
that she hoped she would be able to defend herself if necessary.
21
There is no evidence that the officers had reason to question the veracity of the
information that the PAE defendants reported to them. The reporting persons were
management officials—a PAE security manager and human resources manager. Nor did
the officers make a snap decision to detain Plaintiff without meaningful inquiry. The
officers met with the PAE employees prior to and during their interview of Plaintiff to
discuss the concerns that led them to call the police. Specifically, the PAE defendants
explained their concerns that Plaintiff might mistake one of their Middle Eastern
employees as a stalker—particularly in light of the fact that she believed that one of her
stalkers had successfully breached PAE’s offices and that another was watching her just
outside the PAE offices.
In the end, therefore, the statements of the PAE defendants and Plaintiff were
remarkably consistent. A decision had to be made, and the officers made the reasonable,
albeit difficult, judgment call that Plaintiff posed a danger to herself and others and should
be transported to the hospital for a mental health evaluation. Officers Hall and Luzier were
not required to “walk[] away from the situation” merely because Plaintiff denied making
some of the statements that her coworkers had reported to the officers, and denied that she
had any intent to harm herself or her stalkers. Gooden v. Howard Cnty., 954 F.2d 960, 967
(4th Cir. 1992) (en banc). Indeed, “had ‘the officers done nothing’”—and had Plaintiff
hurt herself or one of her perceived stalkers in a misguided attempt to defend herself—“the
consequences may have been irremediable.” Cloaninger v. McDevitt, 555 F.3d 324, 333
(4th Cir. 2009) (quoting Gooden, 954 F.3d at 967). As we have recognized in similar cases,
it would be “a misguided application of § 1983 to expose to liability those who by all
22
objective indicia were only trying to help.” Gooden, 954 F.3d at 967. Officers should not
“be faulted for taking action against what they reasonably perceived to be a genuine danger
to” the Plaintiff and others at the time. Id. at 966.
2. Defendant Galway
For similar reasons, we hold that Defendant Galway had probable cause to seek a
TDO from the magistrate judge. Plaintiff argues that Galway lacked probable cause for
two additional reasons: Lietzau told Galway that he did not believe Plaintiff would hurt
anyone, and Plaintiff told Galway that she would surrender her gun and seek outpatient
treatment. But, again, we must evaluate whether Galway had probable cause to detain
Plaintiff based upon the totality of the facts and circumstances known to him when he made
his decision, and not based upon a culling of the more favorable reports that he received.
Galway reviewed the reports and concerns of Horner and Wilborn, as well as the
medical reports. Galway believed, based upon his training and assessment, that Plaintiff
suffered from PTSD and possibly a delusional disorder, and he questioned whether she
would follow through with outpatient treatment. Dr. Liu’s view was consistent with
Galway’s evaluation, and he advised Galway that he also believed that Plaintiff posed a
danger to herself and others. Like the officers, Galway had no reason to question the
veracity of the reports that he received from the other PAE employees, or Dr. Liu’s opinion,
and there is nothing to suggest that he failed to perform a sufficient inquiry before making
his judgment call. On the contrary, his actions reflected great care and recognition of the
gravity of the decision that he was making. He consulted with his supervisor and the DHS
23
team regarding the proper course of action before making the judgment call to apply for
the TDO.
For these reasons, we hold that the totality of the facts and circumstances were
sufficient to warrant a prudent man in Galway’s position to believe that the Plaintiff posed
a danger to herself and others, and that an emergency mental health detention for further
evaluation and treatment was prudent.
3.
Because the undisputed evidence establishes that the Arlington County defendants
had probable cause to detain Plaintiff, qualified immunity bars her § 1983 claim under the
first prong of the qualified immunity test, and summary judgment was properly awarded.
But even if we were to assume that probable cause to detain Plaintiff was lacking, the
Arlington County defendants are also entitled to qualified immunity under the second
prong because “the unlawfulness of their conduct was [not] clearly established at the time”
the decision was made. Wesby, 138 S. Ct. at 589 (internal quotation marks omitted).
Relying principally on our decision in Bailey v. Kennedy, Plaintiff argues that it was
clearly established that the Arlington County defendants lacked probable cause to believe
that she posed a danger to herself or others. But, unlike in Bailey, the officials here did not
rely on a single piece of evidence or take Plaintiff into custody without any independent
basis for concluding that Plaintiff posed a genuine danger of harming herself and others.
See Bailey, 349 F.3d at 740 (holding that a single 911 report was an insufficient based to
seize the Plaintiff for a psychological evaluation). As explained above, the Arlington
County defendants relied upon numerous statements from Plaintiff’s coworkers about her
24
frustrations with her stalkers and the actions she had taken to address them, as well as upon
Plaintiff’s own statements about her inability to resolve the situation, her ownership of a
weapon, and her recent attendance at a firearms class. 6
Accordingly, we reject Plaintiff’s argument that the law at the time of the officials’
conduct “was sufficiently clear that every reasonable official would understand that what
he is doing is unlawful,” placing the unconstitutionality of the officials’ conduct “beyond
debate.” Wesby, 138 S. Ct. at 589 (internal quotation marks omitted). On the contrary,
“[r]easonable [officials], relying upon our decision[s] . . . would have concluded that
involuntarily detaining [Plaintiff] was not only reasonable, but prudent.” S.P. v. City of
Takoma Park, 134 F.3d 260, 267 (4th Cir. 1998). 7
B. The State Law Claims
We also affirm the district court’s grant of summary judgment to Officers Hall and
Luzier on Plaintiff’s state law claims for false imprisonment. Under Virginia law, “[f]alse
imprisonment is the restraint of one’s liberty without any sufficient legal excuse. If the
6
Plaintiff’s reliance on our decision in Goines v. Valley Community Services Board
is also misplaced. See 822 F.3d 159 (4th Cir. 2016). In Goines, we reversed a district
court’s decision granting a motion to dismiss the complaint because the complaint
allegations were sufficient to demonstrate a lack of probable cause. As the district court
correctly noted, we have a “fully developed factual record” in this case, “which
demonstrates that the Officers acted on far more evidence and a lengthier investigation than
did the officers in Goines.” J.A. 782, n.2.
7
Because we conclude that the Arlington County defendants had probable cause to
detain Plaintiff for a mental health evaluation, and did not violate clearly established law
in doing so, we need not address the defendants’ alternative argument that the Virginia
magistrate’s ruling was an intervening act that insulated the defendants from liability.
25
plaintiff’s arrest was lawful, the plaintiff cannot prevail on a claim of false imprisonment.”
Lewis v. Kei, 708 S.E.2d 884, 890 (Va. 2011) (internal citation omitted). The district court
granted summary judgment to the officers because, to state a claim for false imprisonment,
the “plaintiff must allege that the process leading to the arrest was unlawful,” and “the
facially valid ECO that Defendant Hall issued upon conclusion of the interview with
Plaintiff was a form of legal process.” J.A. 786 (internal quotation marks omitted).
Because Plaintiff did not challenge this basis for the district court’s grant of
summary judgment on the false imprisonment claims in her opening brief, she has waived
her appeal from it. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir.
2017) (“A party waives an argument by failing to present it in its opening brief or by failing
to develop its argument—even if its brief takes a passing shot at the issue.” (internal
quotation marks and alterations omitted)); Brown v. Nucor Corp., 785 F.3d 895, 918 (4th
Cir. 2015) (“Failure of a party in its opening brief to challenge an alternate ground for a
district court’s ruling waives that challenge.”) (alterations omitted)); Cavallo v. Star Enter.,
100 F.3d 1150, 1152 n.2 (4th Cir. 1996) (“[A]n issue first argued in a reply brief is not
properly before a court of appeals.”).
Moreover, even if Plaintiff had challenged the district court’s ruling on this point,
Plaintiff “failed as a matter of law to proffer evidence sufficient under Virginia law for a
jury to find that Defendants Luzier or Hall falsely imprisoned her.” J.A. 787. As explained
above, Officers Hall and Luzier spoke with the witnesses at length, interviewed Plaintiff
about her concerns, and had probable cause to believe that Plaintiff posed a threat to herself
and others. They lawfully detained her for an emergency mental health examination
26
pursuant to Virginia’s mental health statute. This decision was, in turn, validated by the
mental health examiner, in consultation with his supervisor, and by the issuance of the
TDO by the state magistrate judge. Accordingly, we hold that the officers had the requisite
legal justification to detain Plaintiff for the evaluation, and they followed the legal process
provided by Virginia law in doing so. Therefore, they are entitled to summary judgment
on the false imprisonment claims.
IV.
We now turn to the Plaintiff’s claim that the district court erred in dismissing her §
1983 claims for unlawful seizure against Defendants Horner and Wilborn, and her state
law conspiracy claims against PAE and the individual PAE defendants.
“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.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires 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 (internal quotation marks,
alterations, and citations omitted). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678. “Factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. “[W]here a conspiracy is alleged, the plaintiff must plead facts amounting
to more than ‘parallel conduct and a bare assertion of conspiracy. Without more, parallel
27
conduct does not suggest conspiracy, and a conclusory allegation of agreement at some
unidentified point does not supply facts adequate to show illegality.’” A Society Without
A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (quoting Twombly, 550 U.S. at 556-
57). “The factual allegations must plausibly suggest agreement, rather than being merely
consistent with agreement.” Id.A. The Federal Claims Under § 1983
Ordinarily, private actors are not liable under 42 U.S.C. § 1983, because the statute
only provides relief for deprivations of constitutional rights by state actors. Nevertheless,
“private persons who willfully participate in joint action with a state official act under color
of law within the meaning of § 1983.” Scott v. Greenville Cnty, 716 F.2d 1409, 1422 (4th
Cir. 1983) (internal quotation marks omitted). To establish a conspiracy under § 1983, the
plaintiff must show that the Defendants “acted jointly in concert and that some overt act
was done in furtherance of the conspiracy which resulted in [the] deprivation of a
constitutional right.” Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). This
is a “weighty burden.” Id.Plaintiff’s complaint alleges that her seizure resulted from two separate
conspiracies. The first is that the PAE defendants “agreed on a plan to use [Plaintiff’s]
reports of being stalked at the office to discredit her [by] falsely claiming that she was a
threat and danger to others that required her immediate removal from the office and
transportation to a hospital for examination.” J.A. 32. Their motive for doing so, Plaintiff
alleges, was to discredit her recent claims that PAE was fraudulently overstating its
performance on the State Department contract that she was working on, and had failed to
28
provide sufficient security against her alleged stalkers. However, Plaintiff does not allege
that Officers Hall and Luzier were a part of this alleged conspiracy; indeed, she
affirmatively acknowledges that they were not. Rather, Plaintiff’s § 1983 conspiracy
claims rest upon her conclusory allegations that Officers Luzier and Hall entered into a
separate agreement with the PAE defendants to remove Plaintiff from the workplace—
regardless of her answers to their questions and regardless of whether they had probable
cause to do so.
Plaintiff, however, sets forth no factual allegations that might explain why the police
officers would enter into such an agreement with the PAE defendants to intentionally
violate Plaintiff’s constitutional rights. There is no allegation that the police officers even
knew the PAE defendants, much less that they had any preexisting relationship with them.
There is no allegation that the police officers knew about the PAE defendants’ separate
conspiracy, nor any explanation as to why the police officers would agree to help them
cover up their alleged illegal activities and security failures. In sum, there are no factual
allegations that plausibly suggest that the officers agreed to go along with the PAE
defendants’ illegal plan to violate Plaintiff’s rights. Even if an allegation of a specific
motive might not be required to state a claim for conspiracy, the Plaintiff was still required
to allege some facts that would plausibly suggest that the police officers entered into an
agreement with the PAE defendants to accomplish the same conspiratorial objective. She
has not. “Although in form a few stray statements [in her complaint] speak directly of
agreement, on fair reading these are merely legal conclusions resting on the prior
allegations.” Twombly , 550 U.S. at 564 (footnote omitted).
29
While Plaintiff claims that it was sufficient to allege that the officers met with
Horner and Wilborn prior to and during their interview of Plaintiff, this argument fails to
save her conspiracy claim. As explained above, the “factual allegations must plausibly
suggest agreement, rather than being merely consistent with agreement.” Society Without
a Name, 655 F.3d at 346 (emphasis added). The mere fact that the officers met with the
reporting persons when they were dispatched to the PAE offices does not plausibly suggest
that they shared a common plan or “conspiratorial objective” to violate Plaintiff’s civil
rights. Hinkle, 81 F.3d at 421. On the contrary, the meetings were consistent with the
normal interaction between the police and citizenry when a complaint is investigated.
Because Plaintiff’s allegations that Officers Hall and Luzier conspired with Horner and
Wilborn to illegally seize Plaintiff and remove her from the workplace for a psychological
evaluation is comprised of nothing more than conclusory assertions and rank speculation,
we affirm the district court’s dismissal of the claims under Rule 12(b)(6).
B. The State Law Claims
Plaintiff’s claims that the PAE defendants and the Arlington County police officers
conspired to violate her civil rights and to falsely imprison her, in violation of Virginia
state law, fail for the same reasons. Under Virginia law, “[a] civil conspiracy is a
combination of two or more persons, by some concerted action, to accomplish some
criminal or unlawful purpose, or to accomplish some purpose, not itself criminal or
unlawful, by criminal or unlawful means.” Hechler Chevrolet, Inc. v. General Motors
Corp. 337 S.E.2d 744, 748 (Va. 1985).
30
Plaintiff’s state law conspiracy claims rest upon the same conclusory and
speculative allegation that the PAE employees and the police officers conspired to violate
her civil rights and to falsely imprison her, regardless of how she acted or what she said to
the police. As explained above, Plaintiff does not allege that the Arlington County
defendants were a part of the alleged conspiracy to have Plaintiff involuntarily committed
because of her whistleblowing activities or PAE’s security failures, and the conclusory
allegations in the Complaint are insufficient to support a plausible inference that the
Arlington County police officers conspired with the PAE defendants to unlawfully seize
and detain her without probable cause, in violation of the Fourth Amendment, or to falsely
imprison her under state law.
V.
For the foregoing reasons, we affirm the district court’s order dismissing all of the
claims against the PAE defendants, as well as the state law conspiracy claims against the
Arlington County defendants. We also affirm the district court’s order granting summary
judgment to the Arlington County defendants. 8
AFFIRMED
8
In light of our conclusions, we need not address Plaintiff’s appeal of the district
court’s dismissal of her claim for punitive damages.
31