GUERRERO v. DEANE

mmediate entry to render assistance or prevent harm to Officer Moore. (Moore Dep. at 134:22-135:2.) Accordingly, Officers Potes, Hurley, and Caplan are entitled to qualified immunity on that claim.

Plaintiffs cite Minnesota v. Olson, 495 U.S. 91, 101 (1990), for the proposition that if Officers Potes, Hurley, and Caplan believed Ms. Guerrero should be arrested, nothing prohibited at least one of the from leaving the scene and obtaining a proper arrest warrant. (P. Opp. at 16.) Olson, however, is inapposite; in Olson, there was no physical assault being committed on a police officer. Rather, the police officers there went to a house to arrest a suspect whom they had been told was within. Id. at 95. They surrounded the house and proceeded to enter without a warrant in order to arrest that suspect. Id. At no time was any police officer physical attacked in any way.

For these reasons, the Court also finds that with respect to Plaintiffs' motion for summary judgment as to Officers Potes, Hurley, and Caplan's warrantless entry under Count I, Plaintiffs have not made a showing that no reasonable juror could return a verdict for Defendants as to the presence of exigent circumstances on the officers' initial entry into the Guerrero home, and, therefore, Plaintiffs' motion is denied.

iii. Count I: Warrantless Seizures

Plaintiffs next allege that Defendants Moore, Potes, Hurley, and Caplan violated Plaintiffs' Fourth Amendment right to be free from unreasonable seizures when the officers unlawfully seized Mr. and Ms. Guerrero without probable cause. (Complaint at ¶ 59; P. Opp. at 16.) Defendants, in response, argue that Officers Moore, Potes, Hurley, and Caplan each had probable cause to believe a crime was being committed in his presence, thereby permitting a seizure in absence of a warrant. Only Defendants have moved for summary judgment on the unreasonable seizure claim under Count I as to Officers Moore, Potes, Hurley, and Caplan, arguing that they are entitled to qualified immunity on that claim. (D. SMJ at 20-21.)

The Supreme Court has held that the Fourth Amendment's protection against unreasonable seizures includes seizure of the person. California v. Hodari D., 499 U.S. 621, 624 (1991). "It is well-settled under Supreme Court precedent that a warrantless arrest is reasonable under the Fourth Amendment [] `where there is probable cause to believe that a criminal offense has been or is being committed.'" Ware, 652 F. Supp. 2d at 703 (citing Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). Probable cause to make a warrantless arrest exists when the "facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person . . . in the circumstances shown, [to conclude] that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). It is also well-settled that "[w]hether probable cause exists in a particular situation . . . always turns on two factors in combination: the suspect's conduct as known to the [arresting] officer[s], and the contours of the offense thought to be committed by that conduct." Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir. 1992). "Although probable cause demands `more than mere suspicion, . . . evidence sufficient to convict is not required.'" Ware, 652 F. Supp. 2d at 703 (quoting Taylor v. Waters, 81 F.3d 429, 433 (4th Cir. 1996). Thus, "if a person is arrested when no reasonable officer could believe, in light of the contours of the offense at issue, that probable cause exists to arrest that person, a violation of a clearly established Fourth Amendment right . . . ensues." Rogers v. Pendleton, 249 F.3d 279, 290 (4th Cir. 2001).

Defendants argue that Officers Moore, Potes, Hurley, and Caplan each had probable cause to believe that the crimes of assault and battery and/or obstruction of justice were being committed in their presence. The Court, then, must examine the elements of these crimes and determine whether a "reasonable officer could believe, in light of the contours of the offense at issue, that probable cause exists to arrest that person." Rogers, 249 F.3d at 290.

In Virginia, simple assault or assault and battery on a police officer is a Class 6 felony. Va. Code Ann. § 18.2-57(C). Assault "occurs when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm or engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim." Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 789 (2010). "To sustain a conviction for battery, the Commonwealth must prove a `wil[l]ful or unlawful touching' of another." Parish v. Commonwealth, 56 Va. App. 324, 330, 693 S.E.2d 315, 319 (Va. App. 2010) (quoting Wood v. Commonwealth, 149 Va. 401, 404, 140 S.E. 114, 115 (1927)). It is not necessary that the touching result in injury to the person. Id. "It is sufficient if it does injury to the [victim's] mind or feelings." Id. (quoting Wood, 149 Va. at 405, 140 S.E. at 115).

The relevant Virginia crimes of obstruction of justice is set forth in subsections A and B of the Virginia Code § 18.2-460. One violates subsection A when one "without just cause, knowingly obstructs a law-enforcement officer in the performance of his duties." Washington v. Commonwealth, 273 Va. 619, 624 643 S.E.2d 485, 488 (2007) "In contrast, a person violates subsection B by using threats or force to knowingly attempt to intimidate or impede a law-enforcement officer lawfully engaged in the performance of his duties. A violation of either of these subsections is deemed a Class 1 misdemeanor." Id.

Subsection C is inapplicable here. See Washington, 273 Va. at 628, 643 S.E.2d at 490.

a. Warrantless Seizure of Ms. Guerrero

1. Officer Moore

The Court will first examine whether a reasonable officer in Officer Moore's position could have believed that probable cause exists to arrest Ms. Guerrero on any of assault, battery, or obstruction of justice. Defendants claim that when Ms. Guerrero closed the door on Officer Moore, he could reasonably believe she committed assault and battery and/or obstruction of justice. (D. SMJ at 19.) Plaintiffs argue that Ms. Guerrero could not be liable for any crime, because "Virginia law is clear that a property owner may use force to expel a trespasser." (P. Opp. at 17.); citing Brown v. Commonwealth, 27 Va. App. 111, 116, 497 S.E.2d 527, 530 (Va. App. 1998). Brown, however, addresses resisting an unlawful arrest and does not address trespass; the word "trespass" does not even appear in the case. Nonetheless, Virginia common law "has long recognized the right of a landowner to order a trespasser to leave, and if the trespasser refuses to go, to

employ proper force to expel him, provided no breach of the peace is committed in the outset." Pike v. Commonwealth, 24 Va. App. 373, 375-76, 482 S.E.2d 839, 840 (Va. App. 1997) (citing Montgomery v. Commonwealth, 99 Va. 833, 37 S.E. 841, 842 (1901)).

As an initial matter, when Ms. Guerrero closed to door on Officer Moore's leg, he had probable cause to believe she had committed a battery on him, as that crime requires only unlawful touching of another, regardless of injury. Assuming, arguendo, that Officer Moore's initial entry was unlawful, the question is whether such a battery was excused by the defense set forth in Pike. Significantly, that defense first requires that the defending party order the trespasser to leave and then that the trespasser refuse to do so. Taking the evidence in the light most favorable to the Plaintiffs, i.e., that Ms. Guerrero never hit or shoved Officer Moore, it is undisputed that Ms. Guerrero did not order Officer Moore to leave before closing the door on his leg, though she did so afterwards. Though the facts immediately following the initial entry are in dispute, that original exchange of Officer Moore's stepping onto the threshold and Ms. Guerrero closing the door on his leg is undisputed. Thus, Officer had probable cause to conclude that Ms. Guerrero had committed a battery on him, and because she did not first ask him to leave before doing so, the Pike defense does not apply.

Plaintiffs cite Strutz v. Hall, 308 F.Supp.2d 767, 781 (E.D. Mich. 2004), for the argument that the power to make a warrantless arrest of a suspect when an officer believes that person has committed a crime in his or her presence "is not the wholly distinct power to enter a private home without a warrant, whether to effect an arrest or for some other purpose." While this argument may bear on whether Officer Moore's entry into the Guerrero home was lawful, which has been addressed at length above, it is not applicable to the lawfulness of Officer Moore's seizure of Ms. Guerrero. The lawfulness of a warrantless seizure is determined by whether the officer has probable cause to believe a crime has been committed in his presence for which he can make an arrest.

2. The Other Officers

As to the lawfulness of the warrantless seizure of Ms. Guerrero with respect to Officers Potes, Hurley, and Caplan, the issue, again, is whether they had probable cause to believe a crime was being committed in their presence. As officers arriving on the scene in response to a call for assistance, "they were not required to conduct an independent investigation of the facts to come to their own determination regarding whether probable cause existed. Such a requirement would be unworkable in the environments in which the police operate." Ware, 652 F. Supp. 2d at 703. Officers Potes, Hurley, and Caplan were not required to make their own inquiry upon their arrival, rather "[i]t is enough that [Officer Moore] told [them] that he had probable cause to make an arrest, and that they had no information that would cause them to question [his] statement." Id.; see also Wilson v. Kittoe, 229 F. Supp. 2d 520, 537-38 (W.D. Va. 2002) (finding that a reasonable officer who arrives on the scene would defer to another officer's explanation of what transpired before his or her arrival).

It is undisputed that Officers Potes, Hurley, and Caplan arrived in response to a request for additional units to come to Officer Moore's assistance. Officer Potes was the first to arrive, with Officers Caplan and Hurley arriving immediately thereafter. (D. SMJ at 5). When they arrived, they saw Officer Moore in some form of altercation with Ms. Guerrero, and Officer Moore told Officer Potes that Ms. Guerrero was under arrest. Id. Nothing in the record shows any reason for the officers to question Officer Moore's statement. Thus, Officers Potes, Hurley, and Caplan had probable cause to believe that Ms. Guerrero had committed a battery on Officer Moore, and therefore could lawfully seize Ms. Guerrero in absence of a warrant.

b. Warrantless Seizure of Mr. Guerrero

Defendants argue that the officers lawfully seized Mr. Guerrero, because they had probable cause to believe that he was obstructing justice. (D. SMJ at 20.) In Virginia, a person commits the crime of obstruction of justice if he or she knowingly obstructs a police officer in the performance of his duties. See Washington, 273 Va. at 624, 643 S.E.2d at 488.

Here, after the officers entered the Guerrero home, Mr. Guerrero came out of a neighboring room and either "ran rapidly" or "walked fast" towards the officers who were effecting an arrest of Ms. Guerrero. (D. SMJ at 7.) As Mr. Guerrero approached the officers, he made some gestures with his hands, alternatively described as either "like he was trying to grab something" or "with his hand out" as if to show he was not holding anything. (D. SMJ at 7; P. Opp. at 17.) Once Mr. Guerrero was "very close" to the officers, Officer Potes used pepper spray on Mr. Guerrero and pushed him up the stairs. (D. SMJ at 7.) After escorting Ms. Guerrero outside, Officers Potes and Caplan returned inside to formally arrest Mr. Guerrero.

Taking the facts in the light most favorable to the Plaintiffs, Defendants have made a showing that there is no genuine issue of material fact as to whether Defendants had probable cause to believe Mr. Guerrero was about to commit the crime of obstruction of justice. In Virginia, one commits obstruction of justice when he or she knowingly obstructs a police officer in the performance of his duties. Here, Defendants could have reasonably believed that Mr. Guerrero knowingly came at the officers while they were in the performance of their duties. That is all the elements require; the officers need not have felt threatened, nor did Mr. Guerrero's obstruction have to be significant. Thus, the Court finds that Defendants had probable cause to arrest Mr. Guerrero for misdemeanor obstruction of justice.

iv. Constitutional Claims of the Guerrero Children

Defendants argue that the Guerrero children were not seized and, therefore, do not have constitutional claims. (D. Reply at 17.) One is seized when a reasonable person in his or her position would not have believed he was free to leave. Hodari D. 499 U.S. at 628. The Fourth Amendment, however, "does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Jimeno, 500 U.S. at 250. "An action is `reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, `as long as the circumstances, viewed objectively, justify [the] action.'" Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (quoting Scott v. United States, 436 U.S. 128, 138 (1978) (emphasis removed)).

While the Court finds that a reasonable person in the Guerrero childrens' position would not have believed he or she was free to leave, and thus the Guerrero children were seized, their seizure was reasonable. In light of reasonable seizures of Mr. and Ms. Guerrero, as addressed above, the circumstances, viewed objectively, justified Officer Potes's brief seizure of the Guerrero children for their safety while the officers effected Ms. Guerrero's arrest. Therefore, the Court grants summary judgment with respect to the constitutional claims of Plaintiffs J. Guerrero, Jr., M. Guerrero, and K. Guerrero.

v. Count II: Excessive Force

Count II of Plaintiffs' Complaint alleges excessive use of force in violation of the Fourth Amendment to the United States Constitution. Plaintiffs direct this cause of action against all Defendants. Specifically, Plaintiffs claim Defendants used unreasonably excessive force in three instances: when Officers Moore, Potes, Hurley, and Caplan forcibly entered the Guerrero home, knocking Ms. Guerrero to the floor; when Officer Potes used pepper spray on Mr. Guerrero; and when Officer Muelhauser, on Officer Moore's direction, tightened Ms. Guerrero's handcuffs. (Comp. at ¶¶ 62-63.) Defendants have moved for summary judgment as to Count II, arguing that they are entitled to qualified immunity on this claim.

When reviewing Plaintiffs' excessive force claim against an officer effecting a seizure, the Court uses an "objective reasonableness" standard in analyzing the officer's action. Graham v. Connor, 490 U.S. 386, 388 (1989). This standard carefully balances Fourth Amendment rights "against the countervailing governmental interests at stake." Id. at 396. "To gauge objective reasonableness, a court examines only the actions at issue and measures them against what a reasonable police officer would do under the circumstances." Rowland v. Perry, 41 F.3d 167, 172 (4th Cir. 1994). "Subjective factors involving the officer's motives, intent, or propensities are not relevant." Id. at 173. Further, the "reasonableness" of a use of force is "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).

In making this inquiry, the Court takes into consideration that "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397. Graham provides three factors for the Court to consider when inquiring into the objective reasonableness: (1) "the severity of the crime"; (2) "whether the suspect poses an immediate threat to the safety of the officers or others"; and (3) whether the suspect "is actively resisting arrest or attempting to evade arrest by flight." Id. at 396 (internal citation omitted). The thrust of Graham, then, is that an officer may be entitled to qualified immunity who reasonably, but mistakenly, believed the circumstances justified using more force than in was needed in hindsight.

a. Knocking Ms. Guerrero to the Floor

Plaintiffs allege Officers Moore, Potes, Hurley, and Caplan unreasonably used excessive force against Mrs. Guerrero when they forcibly entered the Guerrero home, knocking her to the floor. Applying the Graham factors, a reasonable officer in Defendants' position would have believed the circumstances justified the amount of force used in arresting Ms. Guerrero. Viewed from the perspective of a reasonable officer on the scene, Defendants reasonably believed Ms. Guerrero had committed battery on a police officer, was posing a threat to that police officer's safety, and was resisting an arrest for which the officer had probable cause.

b. Pepper Spraying of Mr. Guerrero

Plaintiffs next allege Officer Potes used excessive force when he deployed pepper spray on Mr. Guerrero. Judged from the perspective of a reasonable officer on the scene, Officer Potes could have believed that Mr. Guerrero posed immediate threat to the safety of the officers and, thus, Officer Potes was justified in his use of pepper spray. Mr. Guerrero was coming towards the officers in a scene that was tense and in flux, as the officers had not yet secured the scene and arrested Ms. Guerrero. A reasonable officer in Officer Potes's position could have believed Mr. Guerrero posed an immediate threat to the safety of the officers and, therefore, believed he was justified using that amount of force.

Plaintiffs cite Park v. Shiflett, 250 F.3d 843 (4th Cir. 2001), in support of their excessive force claim. That case, however, is distinguishable in two significant ways. The officers in Park had secured the scene and had detained the parties before deploying pepper spray and the spray was deployed twice at a range of approximately 18 inches on a handcuffed subject. Id. at 848. Here, the officers had not yet secured the scene, which was tense, uncertain, and still evolving. The parties had not yet been detained, and it is undisputed that Mr. Guerrero was walking toward the officers when Officer Potes deployed pepper spray on Mr. Guerrero from a distance of "less than five feet." (Potes Dep. at 113:9.)

Plaintiffs also argue that Officer Potes's history of using pepper spray, which he had used in five previous instances, and the Prince William County Police Department's force escalation police should weigh against the reasonableness of the force used. These factors, however, are subjective and specific to Officer Potes, where the excessive force inquiry is objective, from the perspective of the reasonable officer. Though in retrospect Officer Potes's use of pepper spray may have been mistaken, a reasonable officer in his position could have believed the circumstances justified the amount of force.

c. Tightening the Handcuffs

Plaintiffs next allege that Officers Muelhauser and Moore used unreasonable force when they tightened Ms. Guerrero's handcuffs. Plaintiffs state that Ms. Guerrero suffered pain from the handcuffs, but do not allege that she suffered any injury from them. (P. Opp. at 5.) A reasonable officer in Defendants position would have believed the circumstances justified handcuffing Ms. Guerrero, and even taking as true that Defendants tightened Ms. Guerrero's handcuffs, no reasonable juror could find for Plaintiffs as to this claim. See Carter v. Morris, 164 F.3d 215, 219 n. 3 (4th Cir. 1999) (finding that claim that handcuffs were too tight was too insubstantial to state a claim of excessive force under the Fourth Amendment).

For the reasons set forth above, the Court finds that Officers Moore, Potes, Hurley, Caplan, and Muehlhauser are entitled to qualified immunity as to and will grant Defendants' summary judgment motion with respect to Plaintiffs' Count II as to these Defendants.

B. Counts I and II as to the County and Chief Deane

Plaintiffs allege the Constitutional violations in Counts I and II against Prince William County and Chief Deane, in his official capacity. Prince William County and Chief Deane, according to Plaintiffs, enacted policies and practices that encouraged the violation of constitutional rights and failed to discipline and to properly investigate those violations in violation of § 1983. Defendants move for summary judgment as to Prince William County and Chief Deane with respect to both Counts I and II.

In Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), the Supreme Court established that a municipality or a local governing body may be sued for federal claims under § 1983 when its employee's unconstitutional actions are taken in the course of executing a governmental policy or custom. If "the constitutional deprivation is not an official act of the municipality," however, then "recovery lies only against the officer in his official capacity." Moultrie v. Mitchell, No. 93-1510, 1995 WL 24891, at *1 (4th Cir. Jan. 18, 1995) (citing Hughes v. Blankenship, 672 F.2d 403, 405-06 (4th Cir. 1982)).

To determine the liability of a municipality, courts must "(1) identify[] the specific policy or custom; (2) fairly attribute[] the policy and fault for its creation to the municipality; and (3) find[] the necessary affirmative link between identified policy or custom and specific violation" Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988) (internal quotation marks omitted). Municipal liability "will attach only for those policies or customs having a `specific deficiency or deficiencies . . . such as to make the specific violation almost bound to happen, sooner or later, rather than merely likely to happen in the long run.'" Carter, 164 F.3d at 218 (quoting Spell, 824 F.2d at 1390 (internal quotation marks omitted) (emphasis removed). As the Fourth Circuit has stated, "the substantive requirements for establishing municipal liability for police misconduct are stringent indeed. The critical Supreme Court decisions have imposed this stringency in a deliberate effort to avoid the indirect or inadvertent imposition of forms of vicarious liability rejected in Monell." Spell, 824 F.2d at 1391.

With respect to Officer Deane, this Court has noted that "[d]ecisions in this circuit are divided as to whether a police chief or sheriff is a policymaker for § 1983 purposes." Donaggio v. Arlington County, Va., 880 F.Supp. 446, 462 (E.D. Va. 1995) (surveying various cases). For present purposes, however, the Court will assume, arguendo, that Chief Deane could be a policymaker for § 1983 purposes.

a. Official Policy

Plaintiffs allege that the Resolution contributed to an atmosphere of distrust between police officers and Hispanic citizens and encouraged police officers to take liberties with the constitutional rights of Hispanic residents. (P. Opp. at 23.) According to Plaintiffs, the only reasonable explanation for why Ms. Guerrero was treated inhumanely was because of the County's immigration policy. Id.

Even assuming that the Resolution's directives had been implemented on November 24, 2007, and even assuming those policies caused an atmosphere of distrust between police officers and Hispanic citizens, Plaintiffs have made no showing of the necessary affirmative link between identified policy or custom and specific violation at issue here. Plaintiffs do not allege that any officer involved in this case ever inquired into the citizenship of any of the Guerreros or otherwise illustrated any concern as to whether the Guerreros were illegal immigrants. Moreover, in their initial exchange, the logical point at which to ask about immigrant status, Officer Moore did not ask Ms. Guerrero for any identification. (P. SMJ at 17.)

b. Deliberate Indifference

Plaintiffs argue that the County and Chief Deane's failure to investigate the use of force complaint regarding the incident at issue here constitutes "deliberate indifference" subjecting the County and Chief Deane to liability under § 1983. (P. Opp. at 24.) Under this claim, Plaintiffs effectively argue municipal liability attaches because of a "custom or usage" that resulted in the constitutional violations in Counts I and II.

In certain instances, municipalities may be liable under § 1983 without having directly authorized or implemented a policy that results in constitutional violations. See Spell, 824 F.2d at 1390. This "custom or usage" liability may attach when public employees "fall into patterns of unconstitutional conduct" that "become sufficiently widespread" that they assume the quality of "custom or usage." Id. Such a developed "custom or usage" may then become the basis of municipal liability, "but only if its continued existence can be laid to the fault of municipal policymakers, and a sufficient causal connection between the `municipal custom and usage' and the specific violation can then be established." Id. As set forth in Spell, "[m]unicipal fault for allowing such a developed `custom or usage' to continue requires (1) actual or constructive knowledge of its existence by responsible policymakers, and (2) their failure, as a matter of specific intent or deliberate indifference, thereafter to correct or stop the practices." Id. at 1391. "Constructive knowledge may be inferred from the widespread extent of the practices, general knowledge of their existence, manifest opportunities and official duty of responsible policymakers to be informed, or combinations of these." Id. Municipal liability may attach when "either [] the municipal governing body itself, or [] municipal officials having final policymaking authority in municipal law enforcement matters" have the requisite inculpating knowledge. Id.

As the basis of their "custom or usage" claim, Plaintiffs state that Officer Moore was disciplined "several" times during his career with the Department, and "on at least a couple of occasions, he did not act professionally." (P. Opp. at 25.) As to Officer Potes "excessive" use of pepper spray, Plaintiffs state that the County and Chief Deane "appear" to ignore the five times Potes has used pepper spray. Id. With respect to Officer Moore, the Plaintiffs have not shown that any of the "several" prior incidents were related to unconstitutional conduct. With respect to Officer Potes, even assuming each of the five uses of pepper spray was unconstitutional conduct, and assuming five instances qualifies as "sufficiently widespread," Plaintiffs have made no showing that the County and Chief Deane had even constructive knowledge of the practices, but have shown only that they "appear to have ignored" them.

For these reasons, the Court finds that the County and Chief Deane are entitled to qualified immunity as to Counts I and II, and the Court will grant Defendants' summary judgment motion with respect to Plaintiffs' Counts I and II as to the County and Chief Deane.

C. Virginia State-Law Claims

The Court now turns to Plaintiffs state law claims. Plaintiffs have alleged five Virginia state law claims against Defendants Moore, Potes, Hurley, Caplan, and Muelhauser, in their official and individual capacities: Count III, assault, under Va. Code. § 18.2-57; Count IV, battery, under Va. Code. § 18.2-56; Count V, false arrest and imprisonment; Count VI, intentional infliction of emotional distress; and Count VII, negligent infliction of emotional distress. The Court will address each of these claims in turn. Only Defendants move for summary judgment with respect to the Virginia state-law claims.

i. Counts III: Assault and Count IV: Battery

Plaintiffs allege that Officers Moore, Potes, Hurley, Caplan, and Muelhauser committed assault and battery when they forcibly entered the Guerrero home knocking Ms. Guerrero to the ground, used pepper spray on Mr. Guerrero, and tightened Ms. Guerrero's handcuffs.

In Virginia, "[a] plaintiff's assault or battery claim can be defeated by a legal justification for the act." Ware, 652 F. Supp. 2d at 712 (citing Koffman v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258, 261 (2003)). Virginia law recognizes that police officers are legally justified in using reasonable force to execute their lawful duties. See, e.g., Pike v. Eubank, 197 Va. 692, 90 S.E.2d 821 (1956). Accordingly, if reasonable force is used by police officers in execution of their lawful duties, they are immune from suit for such acts.

As discussed above, the Court finds that the officers used reasonable force in the instances at issue here. Thus, the Court finds that Officers Moore, Potes, Hurley, Caplan, and Muelhauser cannot be liable for assault and battery under Virginia law.

ii. Count V: False Arrest and Imprisonment

Plaintiffs allege that Officers Moore, Potes, Hurley, Caplan, and Muelhauser falsely arrested and imprisoned Mr. and Ms. Guerrero.

In DeChene v. Smallwood, 226 Va. 475, 479, 311 S.E.2d 749 (1984), the Supreme Court of Virginia made clear that a law enforcement officer may not be held liable for a false arrest if the officer acted "`in good faith and with probable cause.'" Id. (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967)). To establish the defense, an officer "need not allege and prove probable cause in the constitutional sense." Id. (internal quotation marks and citation omitted). Instead, the officer must allege and prove (i) that he believed in good faith that the arrest was lawful and (ii) that his belief was reasonable. Id.

As set forth above, this Court finds that the seizures of Mr. and Ms. Guerrero were lawful. Accordingly, Officers Moore, Potes, Hurley, Caplan, and Muelhauser cannot be liable for false arrest and imprisonment under Virginia law.

iii. Count VI: Intentional Infliction of Emotional Distress

Plaintiffs next allege that Officers Moore, Potes, Hurley, Caplan, and Muelhauser committed intentional infliction of emotional distress when they forcibly entered the Guerrero home, knocked down Ms. Guerrero, used pepper spray on Mr. Guerrero, and arrested them in front of the Guerrero children, elderly mother, and neighbors.

Actions for intentional infliction of emotional distress are disfavored in Virginia. Ware, 652 F. Supp. 2d at 714. To recover on this claim, Plaintiffs must prove that "the wrongdoer's conduct is intentional or reckless; the conduct is outrageous or intolerable; the alleged conduct and emotional distress are causally connected; and the distress is severe." Veney v. Ojeda, 321 F. Supp. 2d 733, 748 (E.D. Va. 2004) (citations omitted). Significantly, the outrageous conduct required to prove this tort has been described by the Supreme Court of Virginia as conduct that is "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160 (1991) (internal citations omitted). With respect to the fourth element, severe emotional distress, "liability arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it." Id. at 27 (internal citations omitted).

Here, Plaintiffs' claim must fail. Even taking the evidence in the light most favorable to Plaintiffs, Defendants conduct was not so extreme in degree as to go beyond all possible bounds of decency, to be regarded as atrocious and utterly intolerable in a civilized community. As set forth above, Defendants acted reasonably under the circumstances in effecting the seizures of Mr. and Ms. Guerrero. While their conduct was not ideal, it was not utterly intolerable in a civilized society. Therefore, Officers Moore, Potes, Hurley, Caplan, and Muelhauser cannot be liable for intentional infliction of emotional distress under Virginia law.

iv. Count VII: Negligent Infliction of Emotional Distress

Plaintiffs next allege that Officers Moore, Potes, Hurley, Caplan, and Muelhauser committed negligent infliction of emotional distress based on the same conduct as the claim of intentional infliction of emotional distress.

In Hughes v. Moore, 214 Va. 27, 34, 197 S.E.2d 214, 219 (1973), the Supreme Court of Virginia held that "where conduct is merely negligent, not willful, wanton, or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone." The requisite physical injury for a claim of negligent infliction of emotional distress must be the "natural result of fright or shock proximately caused by the defendant's negligence. In other words, there may be recovery in such a case if, but only if, there is shown a clear and unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury," i.e., the physical injury must be the result of emotional distress. Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 137-38, 523 S.E.2d 826 (2000) (internal citations and quotation marks omitted.)

Plaintiffs have illustrated physical injury resulting from the incidents at issue in this case. Plaintiffs have also illustrated emotional injuries resulting from those incidents. Plaintiffs, however, have not shown that the physical injuries are a result of the emotional injuries, i.e., they have not claimed any physical injury that is the natural result of emotional disturbance proximately caused by Defendants alleged negligence. Thus, Officers Moore, Potes, Hurley, Caplan, and Muelhauser cannot be liable for negligent infliction of emotional distress under Virginia law.

IV. Conclusion

For these reasons, the Court will grant in part and deny in part Defendants Renewed Motion for Summary Judgment. With respect to Plaintiffs' unreasonable search claim under Count I, Defendants' Motion is denied as to Defendant Moore and granted as to all other Defendants; with respect to Plaintiffs' unreasonable seizure claim under Count I, Defendants' Motion is granted as to all Defendants; with respect to each of Plaintiffs' claims under Counts II, III, IV, V, VI, and VII, Defendants' Motion is granted as to all Defendants.

The Court will deny Plaintiffs' Motion for Partial Summary Judgment in all respects.

An appropriate Order will issue.