Does an employer’s request for a welfare check on a man who has a gun but has made no threats to harm himself or others warrant holding him for two hours?
That’s what a judge will determine in Benjamin Burruss’ lawsuit against five Albemarle police officers and the county for unlawful seizure, false imprisonment and battery when the officers made a welfare check on Burruss November 21, 2013.
At an April 14 motions hearing, Judge Glen Conrad ruled the officers had qualified immunity once they took Burruss into custody on an emergency custody order. It was the two hours before that, when Burruss sat in his truck in the parking lot of the Comfort Inn on Pantops with stingers under his wheels and was not allowed to leave, that Conrad questioned.
Burruss’ employer, Northrop Grumman, asked police to check up on him after he missed a few days of work, said he was at the Comfort Inn, intended to go hunting and may have a gun but had made no statements that he wanted to harm himself or others, according to the lawsuit.
The officers had plenty of probable cause to hold Burruss, said defense attorney Bret Marfut. They’d received a call to check on him. He went to his truck and refused to leave it. He told one of the officers he had depression and had recently changed his medication. He was really upset about his separation from his wife, said Marfut, and he had a gun.
One of the officers contacted Burruss’ wife, Kelly, and asked her to get an emergency custody order from a magistrate, which she did.
Burruss’ attorney, Michael Winget-Hernandez, argued that police had no probable cause to hold his client. “Upon their own observation and investigation, the lead officer came to the conclusion, ‘We’ve got nothing. We need to let Mr. Burruss go,’” he said.
Winget-Hernandez noted that Burruss was on his way to go hunting in Montana and was exercising his Second Amendment right to have a firearm.
Conrad didn’t seem entirely convinced. “Why was he wearing hunting clothes if his destination was 15 states away?” the judge asked. “That’s not logical.”
Winget-Hernandez insisted that if police officers were so convinced Burruss was in danger of harming someone or himself, they could have taken him into custody without asking his wife to get an ECO. He noted that Kelly Burruss did not check boxes on the form that said her husband had a mental illness and was likely to cause harm. “The magistrate improperly issued the ECO,” contended Winget-Hernandez.
He also said the officers can’t claim qualified immunity if they understood at the outset they didn’t have probable cause to hold Burruss.
Conrad said it seemed like a “pretty important fact” that the officers didn’t apply for the ECO. “They held him for over an hour and an officer said they had nothing,” said Conrad.
The judge said he would allow discovery to learn more about the circumstances before the ECO, as well as the battery that occurred when officers exploded a flash grenade, broke Burruss’ truck window and hauled him out of the vehicle that Winget-Hernandez said was unlocked and for which Kelly Burruss had brought a spare key.
Burruss was held for more than 72 hours at UVA Medical Center, according to the suit, which was brought on behalf of the Rutherford Institute. The officers named in the lawsuit are Garnett “Chip” Riley, Jatanna Rigsby, Kanie Richardson, Robert Warfel and Captain Pete Mainzer.
“We’re happy overall the case is going to continue,” said Winget-Hernandez. Marfut declined to comment.