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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Some High Powered Appellate Attorneys were Involved in the one Published Decision Handed Down on March 5, 2024

There was only one published decision from the Court of Appeals on March 5, 2024, but Dennis Christopher Howard v. Sheriff Roger L. Harris, et al. (March 5, 2024) had some high powered appellate advocates on brief including amici filed by the Virginia Trial Lawyers Associations, the Commonwealth and the Local Government Attorneys of Virginia. Why all the heavy artillery? Because this case involves the potential liability of the government for not adequately protecting a detained person who attempted suicide when he was able to get access to a gun while in custody; the gun was in the law enforcement vehicle within easy access by Howard, who was suicidal. The circuit court sustained the government's motion for summary judgment and the Court of Appeals, Judge Callins joined by Judges O'Brien and Fulton, reverse and remand for further proceedings. A petition for rehearing en banc has been filed and whether it is granted or not, this case is definitely destined for a petition for review by the Supreme Court (and an almost certain grant and full review).

The circuit court granted summary judgment based on two theories. First, because Howard's attempted suicide by seizing the weapon was a criminal act (he was a felon and barred from possessing a firearm), he could not recover from "other participants" in that act under the illegality defense. The Court of Appeals finds that Howard raised a legitimate issue of whether he was of sound mind when he seized the weapon, negating his criminal intent. I would have personally gone a different route and found that the deputy who was charged with securing Howard's safety was not a "participant" in Howard's seizing of the gun and attempted suicide.

The second theory was that because the deputy had made some effort to secure Howard's safety, he could not be grossly negligent and, thus, has protected by sovereign immunity. So was this effort? The deputy noticed that Howard was attempting to "jump" his handcuffs -- that is, he was trying to get his hands from band his back to the front by pulling them under this legs. The deputy told Howard not to attempt it or he would use pepper spray on him.

So, just to recap, a suicidal man is placed in handcuffs and left in a vehicle where a handgun is within easy reach if he were to move his handcuffed hands from behind his back, and the reasonable effort to secure his safety by the deputy was to say "don't do that or I will pepper spray you." I think I can go along with the Court of Appeals that threatening to pepper spray a suicidal person is not going to be much a deterrent.

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