Tag: albemarle county police department

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JADE wannabe: Profiling case against Albemarle cop likely headed to trial

Albemarle police officer Andrew Holmes, photographed in 2011, received qualified immunity on two of the claims against him, but the racial profiling part of the lawsuit will move forward. Photo Hawes Spencer

A federal judge raised questions about an Albemarle police officer’s unprecedented late-night search of two African-American plaintiffs’ home for a piece of paper, and said a jury may find it was based on racial profiling.

Fewer than two weeks before trial date, Judge Glen Conrad seemed inclined to allow Bianca Johnson and Delmar Canada’s lawsuit against Officer Andrew Holmes to go forward, but said the case against Albemarle County was a closer call.

In court September 21, Holmes’ attorney, Julian Harf, acknowledged that his client was looking for drugs when he obtained a search warrant to seek a notice of driver’s license suspension that Canada told him he’d never received when Holmes pulled him over April 26, 2014.

Holmes had been outside the 7-Eleven on Greenbrier running license plate numbers of parked cars. He discovered a BMW there belonged to Johnson, looked up her associates, found her fiancé, Canada, his photo and information that his license was suspended. When Canada came out of the store and drove off in the car, Holmes pulled him over.

The next day, Holmes obtained a search warrant for the home Johnson and Canada shared, and executed the warrant on a Friday night after 11.

A search warrant for a DMV notice had never been done before, according to the deposition of a veteran Albemarle officer. “This is unusual,” said Conrad, who had never seen such a request in his years as a magistrate. “Was there any inkling drugs were involved?” he asked.

Holmes wanted to work in drug interdiction, and had applied to the JADE—the Jefferson Area Drug Enforcement task force—said Harf. “This officer was interested in drugs. He knows if he goes at night there’s more likelihood he’ll find drugs.”

“It seems a jury could say Officer Holmes saw an African-American driving a very expensive nice automobile and assumed he was dealing drugs,” said the judge.

Harf also asserted that statistics showing Holmes ticketed and arrested blacks far more often than his colleagues—and that he’d received complaints—were irrelevant. Holmes is being sued in three other cases by black plaintiffs who allege he targeted them because of their race and the cars they were driving.

Whether the county is liable for Holmes’ behavior and condoned it because of a “culture of racism,” as the plaintiffs contend, “is a close issue,” said Conrad.

Holmes received 11 complaints in 2014 and seven in 2015, yet he said his supervisors never said anything to him about them, said plaintiffs’ attorney Jeff Fogel.

Conrad had not ruled at press time. The case is scheduled for a two-day jury trial beginning October 2.

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UPDATED Akins revisited: New reward in county’s coldest case

Jimmy Dettor stands beside police case files from his friend's unsolved 1963 death. Staff photo

 

Nearly 54 years ago, Charlottesville was rocked with the bizarre death of high school football star Pat Akins, 19, whose body was found under a red Triumph TR3 after purportedly having been dragged 12 miles from Crozet. Today his Rock Hill Academy classmate Jimmy Dettor is offering $20,000 for information leading to resolution of the case.

“There are questions that haven’t been answered that still need to be answered,” says Dettor. “I felt this was the time.”

Among the questions: What really happened to Akins?

akins-progress-1963
Pat Akins’ death was front-page news in 1963 and the Progress featured a photo of the Triumph TR3 with a crunched-in front.

In the early morning of March 19, 1963, Akins’ buddy Barry Mawyer told investigators the two were headed out to the Tidbit in Crozet to drink beer when Akins lost control of the borrowed Chevy convertible he was driving and was ejected onto the road near the present-day Harris Teeter.

AerialViewTidbitRestaurant
The Tidbit was open 24 hours, and besides burgers and beer, offered less savory attractions, according to one of its owners’ daughters. Photo Albemarle County Police Department

A witness, Tidbit co-owner Merlin Durham, headed to U.S. 250 to help Akins when the mysterious Triumph zoomed by, struck Akins and kept on going, Durham told the Daily Progress. He leapt into his Cadillac, pursued and passed the Triumph, and pulled over at a gas station to make sure it was the right vehicle, noting two passengers in the low-slung car.

The Triumph, owned by grad student William C. Wolkenhauer, who said the car must have been stolen, was next spotted at 4:30am at Alderman and McCormick roads at Observatory Hill, with Akins’ body underneath.

The story that Akins was dragged from Crozet quickly met with disbelief because his body was intact and because of his size and the six-inch clearance of the Triumph.

“He had a great big chest,” says Dettor, 72, who played football with Akins at Rock Hill and worked with him at Sears when it was located on West Main, assembling bicycles and tricycles at Christmas.

Akins was one of the most popular students at the now defunct private school, says Dettor, and at “15, 16 years old, he was a man.”

The gridiron star’s death has haunted his classmates. “It’s a lonely feeling to know,” says Dettor, and conversations about what happened to Akins have been ongoing for the past 53 years, he says.

“One thing I see on TV is people want closure,” says Dettor. “There’s no closure.”

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Pat Akins was a golden boy, according to his Rock Hill Academy classmates. Hook archives

According to Albemarle police spokesperson Madeline Curott, the case has never been closed, although the county police department, which was formed in 1983, inherited it from the Albemarle sheriff’s office.

The premise that Akins was killed in a hit-and-run has been re-evaluated. “We have new information that conflicts with that,” says Curott. The case hasn’t been classified a homicide, she says, and is being called “an unsolved death investigation.”

In 2013, Albemarle’s then-police chief Steve Sellers told the Hook, “There are probably seven ways this case could have happened. Somebody’s lying.”

And former Albemarle sheriff Terry Hawkins, who was in a 1964 car crash in which Mawyer was driving, told the Hook, “In my opinion, [Akins] was murdered, and the whole thing was staged to make it look like an accident.”

Mawyer, reached at a Bellevue, Washington, number, indicates little interest in the reward and says police have information about what happened. “The people who were involved are dead, as far as I know,” he says. He declines to say who that was. “Don’t call me anymore,” he adds.

For Dettor, who used to run a tow truck company, it was time to come forward and try to help get to the truth of what happened to his friend. And with the reward money, he says, “I would think after that long a time, someone would want to help.” The smallest lead, he believes, could help investigators determine what really happened.

Updated 3:19pm with Barry Mawyer’s response to the reward.

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Police K9s attack again

Albemarle police say they are internally investigating the incidient in wich an off-duty K9 attacked a young horse. Staff photo

In early November, an Albemarle County police K9 bit and injured a colt owned by an Augusta County farm owner—just a year and a half after a dog with the Charlottesville Police Department attacked a child. Is it time for man’s best friend to be laid off?

While on a jog with its handler November 7, the off-duty and off-leash K9 attacked a 1-month-old horse named Thomas Jefferson, despite being zapped by its shock collar, according to the Daily Progress.

Albemarle County Police Department spokesperson Madeline Curott says the department is conducting an internal administrative investigation to determine if policies and procedures were followed.

“We are not releasing names of those involved so it does not compromise the integrity of the investigation,” she says. However, she did offer that the ACPD has four K9 officers on staff and the commander of the unit is Lieutenant Miller Stoddard, who was not available for comment because of his involvement in the investigation.

C-VILLE was unable to reach Jerry Hatton, owner of Deep Meadow Farm and the colt that was attacked, but county spokesperson Jody Saunders says he has been advised to make a formal complaint to the county’s risk management and attorney’s offices, though he has not yet done so.

When Ringo, a Dutch Shepherd working for the CPD, was accidentally released from the back of his handler’s patrol vehicle in June 2015 and immediately sunk his teeth into a 13-year-old girl standing nearby, Captain Gary Pleasants said he believed the dog reacted to a quick movement she made.

A neighbor who witnessed the dog’s aggression called him vicious. The department put both Ringo and his unnamed handler on administrative leave while the K9 underwent evaluation.

Charlottesville Police spokesperson Lieutenant Steve Upman now says Lieutenant Victor Mitchell, a master trainer with the National Association of Professional Canine Handlers working for the CPD, evaluated Ringo by conducting several tests that concentrated on aggression control and obedience.

Though the handler called for Ringo when he was released from the trunk and the dog did not respond, CPD now deems the dog fit for service. Upman produced an internal report from the evaluation, which said, “Lieutenant Mitchell found the handler had control of the K9 at all times and did not observe any behaviors from the K9 team that caused him concern.”

Ringo and his handler, whom the CPD still chooses not to name, are both still employed. And just four months before the attacking of the girl, the two were recognized for their work during two traffic stops in which Ringo sniffed out 283 grams—or more than 10 ounces—of marijuana, half a gram of crack and a High Point 45-caliber handgun.

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I spy: Changes in local police surveillance

Officer Ben Rexrode with the UVA Police Department has been wearing a body camera since July 2015. Photo Eze Amos

When photos of Danville police popping the hoods of their patrol cars spread on social media last month, so did speculation that it was being done to shield dash cams from filming officers’ interactions with civilians. While that city’s department explained that their cars have had a continual issue with overheating and it has vowed to stop the hood popping, a look at hyper-local police camera usage shows that surveillance is more than meets the eye.

Every uniformed officer and security guard in the University of Virginia Police Department has worn a body camera since July 2015.

“When we started putting these out, there was no pushback,” says Officer Ben Rexrode, the department’s crime prevention coordinator. “The cameras can work both ways because they hold officers accountable, but they also protect us if something is being alleged.”

Highly criticized police shootings, such as the killing of unarmed 18-year-old Michael Brown by a police officer in Ferguson, Missouri, have pressured law enforcement agencies all over the nation to adopt this new body-worn technology. But Rexrode says that wasn’t what encouraged his department to try it out.

“Why wouldn’t we?” he says. “It’s a good thing to have.”

Cameras are clipped on an officer’s uniform over his heart. They stay on standby mode until a button in the unit’s center is double clicked. Then, the camera begins recording with audio and recalls the previous 30 seconds of soundless film.

It is the UVA Police Department’s policy that officers use the cameras during any enforcement action, such as a traffic stop, disturbance or suspicious incident, Rexrode says. Every recording is stored for 90 days and if it is being used in an investigation or court case, it will be saved longer.

While researching different camera models, drafting a policy and training officers to use the cameras takes a good deal of time, Rexrode says the toughest part for most departments is the financial commitment.

For 150 cameras and on-site training, UVA paid $363,000. A five-year contract for camera maintenance, licenses and storage costs an extra $150,000 per year.

At the Charlottesville Police Department, Lieutenant Tom McKean says officers are currently testing 40 body cameras before a full deployment, though that date is not set.

The transition to body cameras began under former Police Chief Timothy Longo, and the first cameras were deployed at the beginning of this year.

And CPD’s Lieutenant Steve Upman says there are no dashboard cameras currently in operation—their old system is no longer supported, and they are starting to spec out new systems.

Over at the Albemarle County Police Department, each patrol car is equipped with a dash cam that is always rolling, according to spokesperson Madeline Curott. At any time, officers can choose to record with audio, and both video and audio will automatically record when an officer activates the car’s lights and sirens or the car hits 85 mph.

The video is archived and entered into evidence if it’s part of an investigation. If not, it’s thrown out after 60 days. Video is reviewed quarterly and periodically by the department’s Office of Professional standards and patrol shift supervisors.

While those at the ACPD have been working on implementing body cameras for well over a year, Curott also notes the expense of the equipment and says they’re working on a policy pertaining to juveniles, schools and privacy issues. Next, patrol officers will start training on them.

But, from experience, Rexrode notes that the training can often take longer than one would expect, and a “grace period,” he says, is necessary for police to get used to wearing them.

“We’re not robots,” he says.

“When we started putting these out, there was no pushback,” says Officer Ben Rexrode, the UVA Police Department’s crime prevention coordinator. “The cameras can work both ways because they hold officers accountable, but they also protect us if something is being alleged.”

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Interact this way: Albemarle police pocket guide raises concerns

Albemarle’s new police chief, Ron Lantz, wants to foster cooperation during encounters with police. Eze Amos

A just-printed Albemarle County Police Department pamphlet was intended to build trust and cooperation between citizens and law enforcement during interactions that are now under a national spotlight. Its content, however, has alarmed some local attorneys, who say the guide’s instructions are incorrect or even unconstitutional.

“The document is very concerning,” says Legal Aid Justice Center’s Emily Dreyfus, who has held workshops on dealing with the police for kids in low-income neighborhoods. “I am always glad to see increased efforts at building positive relationships, but the pamphlet doesn’t adequately speak to the rights of the public.”

For example, people always have the right to remain silent, but the pamphlet says that right only becomes available when someone is taken into custody, she says. “This document mistakenly implies people are required to reveal their citizenship status,” she says.

The pamphlet, “Building Trust and Cooperation: A Guide to Interacting with Law Enforcement,” encourages people to record information if they have an interaction with a police officer that didn’t go well, but doesn’t say how to file a complaint and what will happen afterward, she says.

Last year Charlottesville police and the Office of Human Rights published its own pocket guide called “Your Rights and Responsibilities.”

Albemarle’s is “not a know-your-rights pamphlet,” says county police Chief Ron Lantz. “Cooperation is the key.” The side of the road is not the place to discuss whether the stop is justified and that’s why the guide provides numbers for citizens to call if they have a complaint, he says. “It’s all about working with the police.”

The project was started by his predecessor, Steve Sellers, and “was one of my first priorities,” says Lantz. Lehman Bates, pastor at Ebenezer Baptist Church and a member of the African American Pastors Council, Commonwealth’s Attorney Robert Tracci and Sin Barreras, a nonprofit that works with mostly Hispanic immigrants, helped create the guide.

lehmanBates-ezeBates wanted to work on a tool for traffic stops, which have become a “flash point” between citizens and police. “As a pastor and as an African-American, because of our history and because of current events, it was important for me to have this type of tool so those types of incidents do not occur,” he says.

For constitutional attorney and Rutherford Institute founder John Whitehead, who just published his latest commentary, “All the Ways You Can Comply and Still Die During An Encounter with Police,” not informing people of their rights is a glaring omission. “You don’t have to stop to talk to police,” he says. “You can walk away. If stopped while driving, you don’t have to automatically open your car for a search.” The pamphlet implies people have to allow pat downs, but police must have “reasonable suspicion” to do so, says Whitehead.

“It stops short of saying: Here are your rights, we can get along as long as you obey the police,” he says. “Case law does not support what is in the brochure.”

And Whitehead wonders why, with nationally known civil liberties groups here, police didn’t ask for some feedback.

Civil rights attorney Jeff Fogel is even more critical. “This is outrageous,” he says. “It should be titled, ‘You Must Be Obedient to the Police.’ Some of it is flatly wrong or deceiving.”

The brochure instructs, “You must not physically resist, obstruct or be abusive toward the police.” According to Fogel, citizens have the right to resist an unlawful arrest or the use of excessive force, and they have the right to curse at a police officer.

Fogel represents plaintiffs alleging racial profiling in three civil lawsuits he filed in February against the county and Albemarle officer Andrew Holmes.

The suits have nothing to do with the pamphlet, the work on which started more than a year ago, according to Lantz.

“Traffic stops are one of the most dangerous things we do,” he says. He’s implementing a “three-minute rule,” in which officers explain why they’re pulling over a driver and that it’s not just about writing tickets, he says.

“It is of vital importance for members of the public to realize that it is both improper and unlawful to resist or obstruct law enforcement in the conduct of their lawful duties,” says Commonwealth’s Attorney Tracci. “The pamphlet also encourages citizens to report any abuse or impropriety that may occur.”    

Currently the department has printed 100 copies of the four-page pocket guide in English and in Spanish, and when there are more, Lantz wants his officers to hand them out.

Critics hope the next printing will have some changes.

“Our community values collaboration, and I hope this pamphlet can be updated through a process that includes people from a range of viewpoints, so that we can make sure information is easily understood and fully explains people’s rights and responsibilities,” says Dreyfus. 

“How about a brochure on how the Albemarle Police Department will respect your constitutional rights?” suggests Fogel. “That would likely foster better cooperation between the PD and the community.”

policebrochure

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Racial profiling: Case against Albemarle cop moves forward

Albemarle police officer Andrew Holmes, photographed in 2011, received qualified immunity on two of the claims against him, but the racial profiling part of the lawsuit will move forward. Photo Hawes Spencer

A federal judge issued an opinion last week that allows a lawsuit against Albemarle County and police officer Andrew Holmes to proceed on its racial profiling claim, while giving Holmes qualified immunity on claims he violated the plaintiffs’ Fourth Amendment rights when he showed up at their home around midnight to look for a DMV license suspension notice.

Holmes pulled over Delmar Canada April 26, 2014, and ticketed him for driving on a suspended license. The next day Holmes obtained a search warrant and asserted that from his training and nine years of law enforcement experience, he was aware that people kept driver’s license suspension documents in their homes, according to a brief.

Five days later, on a Friday night, Holmes and three other officers showed up at the Turtle Creek condo Canada shared with Bianca Johnson, and detained the couple for two hours while they searched the residence.

Judge Glen Conrad ruled that Holmes had qualified immunity in the unlawful search and seizure claims because “the doctrine gives ample room for mistaken judgments ‘by protecting all but the plainly incompetent or those who knowingly violate the law.’” Conrad said the plaintiffs’ argument that the officer should have known there was no probable cause for the search warrant was “unpersuasive.”

Canada and Johnson gained more traction on their equal protection claim that Holmes’ application for the warrant and the search itself were motivated by their race. Wrote Conrad, “The plaintiffs allege that Holmes has ‘a history and practice of targeting African-American males for vehicle stops and intrusive searches.’”

He also denied Albemarle’s motion to dismiss the suit against the county on the grounds that “numerous complaints by African-Americans” had been lodged with the police department before this incident, and the county, by not taking corrective or disciplinary action, condoned his actions.

“We can hold the county liable because they were aware of the complaints,” says Jeff Fogel, who represents Canada and Johnson. “I know a number of complaints were filed because I have the names of people who did.”

Through discovery, says Fogel, he will scrutinize all summons Holmes issued over the past five years for race.

“In a sense, it’s an important hurdle but we still have a lot of work to prove what we’ve alleged,” he says. The case was really about racial profiling, he says, and he’s “quite content” with the judge’s ruling.

Jim Guynn, who represents Holmes and the county, says he’s pleased about “two-thirds” of the judge’s ruling. “It’s very early in the case and the fact the judge thought any of it could be dismissed is a good thing for the defendants,” he says.

As the case proceeds, he says he’ll give the judge another opportunity to dismiss the suit.

Holmes still faces two other racial profiling lawsuits, and Conrad said he would rule on the motions to dismiss those separately. In both those cases, the plaintiffs contend Holmes pulled them over, claimed he smelled marijuana and held them for two hours without turning up any drugs.

Johnson is happy the racial profiling part of the suit can proceed. “We can bring attention to how the police are abusing their power and stopping African-Americans,” she says. “[Holmes] is well-known in the community for targeting African-American men.”

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Partners in arms: City, county and UVA cut ribbon on indoor firing range

Ribbon-cutting attendees toured the eight-lane firing ranges, at which law enforcement can practice accuracy at 150 feet. Photo by Ryan Jones

While it’s not always smooth sailing between the city and county, collaboration was the word of the day as officers and officials from Albemarle, Charlottesville and the University of Virginia gathered May 12 to dedicate a long-in-the-works, state-of-the-art Regional Firearms Training Center.

Albemarle County Police had been looking for a shooting range since the 1980s, and soon-to-be-former Chief Steve Sellers said getting one built was “probably one of the most difficult” parts of his tenure here, especially when residents opposed putting one at the old Keene landfill in 2012.

“Because of that resistance, we have a much better facility,” said Sellers.

Former attorney general Ken Cuccinelli deserves much of the credit. Cuccinelli suggested that Albemarle, Charlottesville and UVA police apply for grants individually “so we wouldn’t get so much attention,” said Sellers, and that’s how local law enforcement ended up with a $2.9 million grant from the AG to build the $6 million facility.

UVA provided the 172-acre Milton site, which originally was dedicated as an airfield in 1940 to train civilian pilots on the eve of U.S. involvement in World War II and more recently used as a firing range for University Police. “Milton airfield was not supported by local property owners,” said Don Sundgren, UVA facilities chief, who didn’t mention that neighboring Glenmore was not too fond of the outdoor shooting, either. “Now what we’ve got is a facility to train local law enforcement officers,” he said.

The 19,054-square-foot center has two 50-yard, eight-lane firing ranges, and the right range has armored walls to allow a “220-degree training atmosphere” that’s realistic to what officers encounter in the street, said Charlottesville’s Sergeant Shawn Bayles.

That includes strobe lights similar to the blue-and-white emergency lights on patrol cars, and Wi-Fi controlled targets that move at walk, jog or run speeds—or that hide behind a victim. Officers must react to a shoot or no-shoot situation, said Bayles.

The facility has cleaning spaces so lead isn’t tracked all over the place. Two ventilation systems alone cost $1 million. “The air quality is better than outside,” said Rob Heide, who recently retired from Albemarle police and is a consultant on the project. “Out in the parking lot, you’ll be surprised at what you don’t hear.”

There’s a computer simulation room, and Heide called a scenario and role-playing training room “the single most important part of this building.” There, officers can face eight scenarios within four minutes, such as force on force, escalation, de-escalation or someone asking for directions. The idea, he said, is for officers to better learn to use their mouths rather than force in handling situations. Add in noise—crowds, protests or other sounds of chaos—and the officers train to make the split-second decisions they face in real life.

The building, says Heide, is “locking down the lead and amping up the training.”

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Police recruits work to interpret their own biases

Albemarle police say they are internally investigating the incidient in wich an off-duty K9 attacked a young horse. Staff photo

 

New cops are learning a strategy called fair and impartial policing, which aims to help them evaluate their biases before they take to the streets.

At a May 13 six-hour course, Albemarle’s Lieutenant Mike Wagner and Master Police Officer Dana Reeves taught 13 recruits from the county, Charlottesville and the University of Virginia police departments.

“Our officers should understand what biases are and that all people have them,” Wagner says.

On February 11, local attorney Jeff Fogel filed three lawsuits, accusing Albemarle officer Andrew Holmes of unlawfully targeting African-American males in stops and intrusive searches.

The fair and impartial policing program is being implemented across the nation and was developed to help officers understand their own implicit biases and correct them before entering their field of duty. It recognizes that officers can sometimes become defensive when their biases are questioned.

If police think only racist officers engage in biased policing and if they think those officers are “few and far between the members,” says Wagner, then police may think they are being unfairly scrutinized and that only those few ill-intentioned officers should be reprimanded.

“We need to do our jobs based on the facts and what we see and what we hear,” Wagner says, adding that officers should “make arrests and decisions based on facts and fair and legitimate policing.” In the coming months, every county police officer will go through the same training.

Clifford Fortune, a city police recruit taking the training, says recognizing biases may be challenging, but it’s important to do so in a place like Charlottesville, where people from all walks of life live in close proximity.
“Just because this person has a Ph.D. and this one doesn’t,” he says, “you can’t treat one not as fair as the other.”

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Expert witnesses testify, Middleditch trial to resume tomorrow morning

Andrew Middleditch faces an involuntary manslaughter charge in the death of 78-year-old Lonnie Branham, as well as his second drunk driving offense. Submitted photo

 

The high-end realtor charged with involuntary manslaughter and his second drunk driving offense for killing an elderly driver in a Memorial Day car crash last year stands trial in Albemarle Circuit Court.

On April 26, a 12-person jury made of nine women and three men was selected to hear the case against Andrew Blackwell Middleditch, 56, who investigators say had double the legal limit of alcohol in his system while driving his GMC Yukon on Barracks Road on the morning of May 25, 2015. He was attempting to turn left when 78-year-old driver Lonnie Wycliffe Branham tried to pass him on the left side and the vehicles collided, sending Branham’s 1990 Chevy Lumina into a ditch.

Branham was pronounced dead at the scene.

In opening statements, prosecutor Matthew Quatrara told the jury he has “rock solid and indisputable” evidence to convict Middleditch, and said because the real estate agent’s attorney, Fran Lawrence, does not dispute the defendant was intoxicated behind the wheel, this is a one-issue case: Was Middleditch the cause of the crash?

Jonathan Hickory, an Albemarle County police officer who specialized in fatal crash reconstruction at the time, testified that Middleditch’s front left turn signal bulb showed signs of “hot shock,” which signifies that his signal was activated at the time of the crash.

Lawrence believes Middleditch’s turn signal, along with his alleged slowing speed, would have given Branham ample time to register that a person driving in front of him was about to make a left turn.

In a dash cam video from Officer Greg Anastopoulos’ patrol car on the morning of the incident, Middleditch can be heard speaking with slurred speech. During his sobriety tests, he struggles to count backwards and refuses to say the alphabet, saying he’s dyslexic. In the video, he says he believes Branham was trying to pass him.

“He knew he was being passed,” the prosecutor said. “We believe that is the core of this case.”

The jury will meet again tomorrow to hear the rest of the case and decide on a verdict.

 
Middleditch also faces a wrongful death lawsuit in which Branham’s family is asking for $1.5 million in compensatory damages and $350,000 in punitive damages.

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Welfare check: Burruss lawsuit against Albemarle police moves forward

Attorney Michael Winget-Hernandez leaves U.S. District Court with his client Benjamin Burruss (rear), whose lawsuit against Albemarle County and five police officers will move forward. Staff photo

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.