Benjamin Marshall Burruss – C-VILLE Weekly

Welfare check: Burruss lawsuit against Albemarle police moves forward

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.

SWAT PTSD: Albemarle police sued for false imprisonment

How many cops does it take to check on a man when his employer is concerned that he hasn’t shown up for work?

At least a dozen, by Benjamin Marshall Burruss’ estimate.

According to his November 19 lawsuit filed in federal court, Albemarle County Police held Burruss for two hours in his truck after he said he was fine, had no intention of harming anyone and didn’t want to talk to police, then used a flash grenade, bashed in his window, hauled him out of the truck and had him committed for psychiatric evaluation for more than 72 hours.

“I didn’t understand why this was taking place,” he says in an interview at the Rutherford Institute, whose attorneys have filed suit against Albemarle County and five police officers. “It was a nightmare.”

Burruss, 58, was born in Charlottesville, graduated from Albemarle High and was employed at Northrop Grumman for 32 years, starting when it was still Sperry Marine. He had a security clearance and worked in logistics, supplying Northrop’s security products to people around the world 24-7, 365 days a year, he says.

“He was an exemplary employee,” says his attorney, Michael Winget-Hernandez. “This event put an end to his career.”

Burruss says he’d missed a few days of work because he was adjusting to medication his doctor had given him for depression. And because of marital problems, he was staying at the Comfort Inn on Pantops.

“I needed some space,” he says. And he decided to go to Montana for some bird hunting.

According to the complaint, Northrop Grumman contacted Albemarle police the morning of November 21, 2013, and asked officers to do a welfare check on Burruss. Police were told he was at the Comfort Inn, was planning to go hunting, may have a firearm but had not made any statements that he wanted to harm himself or others, says the lawsuit.

Burruss checked out of the hotel, and in the parking lot, officers in a police car said they wanted to speak to him. “I said I didn’t want to speak to them,” he says. “I knew I hadn’t done anything wrong.”

The officers kept saying they wanted him to get out of the truck and talk to them, according to the complaint. Burruss kept saying he didn’t want to talk to them unless they had a warrant, and that he wanted to leave.

“I didn’t want to get out with all these police around me,” says Burruss. “I said, ‘I can hear you through the window.’”

Burruss had a 12-gauge shotgun in the backseat for bird hunting “in plain view with the action open,” says his attorney. “Any police would know it couldn’t be fired. That’s the safety position.”

For two hours, Burruss refused to get out of his truck and Albemarle police refused to let him leave and put a stinger under his tires, according to the lawsuit. Officer Garnett “Chip” Riley, who talked to Burruss throughout the stand-off, at one point said, “We got nothin,’” and “I got no reason to hold him,” claims
the suit.

Officer Jatana Rigsby then contacted Burruss’ wife, who also said he’d made no statements that he intended to harm anyone, according to the complaint. Kelly Burruss was told to get an emergency custody order because her husband was “acting irrationally,” says Winget-Hernandez. After seeing a magistrate and getting an ECO, she also brought police an extra key to Burruss’ truck.

Winget-Hernandez notes that the sworn petition Kelly Burruss filed has never come to light, although it’s the legal grounds for detaining Burruss. “Either it never existed or it disappeared,” he says.

Burruss told police he was tired and was going to take a nap, says Winget-Hernandez. That’s when the SWAT team exploded the flash grenade, busted his driver’s side window and yanked him out of the car, says Burruss.

“I saw four to six SWAT guys coming at me with assault rifles,” he says. “I thought I was going to die.”

Burruss was handcuffed, relieved of his pocketknife and put in a police car, still not knowing why police were detaining him and thinking it was a case of mistaken identity and that he was headed to jail, he says.

Instead, he was taken to UVA Medical Center and held for more than 72 hours.

It was afterward that his health problems began. “I started seeing counselors and was diagnosed with [post-traumatic stress disorder],” says Burruss. He struggled to sleep and with flashbacks. “I couldn’t get any of this out of my mind,” he says two years later.

“I was battered,” he says. “I was robbed. I was stripped of my family, my home, my dignity”—here his voice breaks—“and my self worth.”

Says Burruss: “To this day I don’t understand why they took the approach they did.”

He says his suit against officers Riley, Rigsby, Kanie Richardson, Robert Warfel, Captain Pete Mainzer and the county is to hold them accountable. “I hope this never happens to anybody else,” says Burruss. “I wish it hadn’t happened to me. I wish they’d been better informed and better trained. They made some terrible decisions.”

Albemarle officers receive 40 hours a year of crisis intervention training to learn to de-escalate non-violent situations, says police spokesperson Madeline Curott. They may also elect to take other mental health training. Curott says the department has not been served with Burruss’ lawsuit.

“This is just one more example of how a relatively benign situation—a routine welfare check—gets escalated into something far more violent and dangerous through the use of militarized police armed to the teeth and trained to act combatively,” says John Whitehead, president of the Rutherford Institute and author of Battlefield America: The War on the American People.

For Burruss, along with the emotional trauma and financial impact on his family stemming from the encounter, he also had to pay for his involuntary stay at UVA Medical Center. And he has to deal with people wondering what’s wrong with him. “It’s unjust,” he says. “I’ve never hurt anyone. I’ve been violated.”