Safar v. Tingle

• Decision Date: 04 April 2016
• Docket Number: Case No. 1:15-cv-467, Case No. 1:15-cv-469
• Citation: 178 F.Supp.3d 338
• Parties: Fadwa Safar, et al., Plaintiffs, v. Lisa Tingle, et al., Defendants. Fadwa Safar, et al., Plaintiffs, v. Costco Wholesale Corporation, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

178 F.Supp.3d 338

Fadwa Safar, et al., Plaintiffs,

v.Lisa Tingle, et al., Defendants.

Fadwa Safar, et al., Plaintiffs,

v.Costco Wholesale Corporation, Defendant.

Case No. 1:15-cv-467

Case No. 1:15-cv-469

United States District Court, E.D. Virginia, Alexandria Division .

Signed April 4, 2016

Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, for Plaintiffs.

Alexander Francuzenko, Broderick Coleman Dunn, Philip Corliss Krone, Cook Craig & Francuzenko PLLC, Bancroft McGavin Horvath & Judkins P.C., Fairfax, VA, for Defendants.

MEMORANDUM OPINION

T. S. Ellis, III

, United States District Judge

These two cases, consolidated for discovery and pre-trial purposes, arise from a set of facts that can be described only as sad and regrettable. Plaintiffs, a husband and wife, were arrested, and the wife was incarcerated briefly, not only for a crime they did not commit, but in fact for a crime that never occurred. Based on these events, plaintiffs here sue (i) the company that erroneously reported that they committed a crime, (ii) the police officer who investigated the matter and filed an affidavit that led to the issuance of arrest warrants for plaintiffs, and (iii) the prosecutor, who, at the time the husband's case was dismissed, became aware that no crime had been committed, but then failed to take steps to withdraw the warrant for the wife's arrest, which led six months later to the wife's incarceration over Christmas.

Defendants seek threshold dismissal of the amended complaints on various grounds. As these dismissal grounds have been fully briefed and argued orally, defendants' dismissal motions are ripe for disposition.

I.

The pertinent facts may be succinctly summarized.¹

Plaintiffs Fadwa Safar and Jan Eshow are married residents of Alexandria, Virginia. They fled here from Iraq to avoid persecution for their Christian beliefs and they are now American citizens.

Defendant Lisa Tingle is an Assistant Commonwealth's attorney for Arlington County, Virginia (“Prosecutor Tingle”). Defendant Stephanie Rodriguez is an officer with the Arlington County Police Department (“Officer Rodriguez”). Defendant Costco Wholesale Corporation (“Costco”) is a corporation incorporated in the state of Washington with its principal place of business located in Issaquah, Washington.

In September 2012, Mr. Eshow purchased over $1,000 of flooring from the Pentagon City, Virginia Costco store for a home flooring project. Shortly thereafter, while in another Costco store, Mr. Eshow saw that the same flooring he had recently purchased in the Pentagon City store was on sale in this Costco store for a lower price. Aware of Costco's policy of permitting purchasers to take advantage of sale prices on recently purchased products, Mr. Eshow inquired of Costco's store personnel how he might take advantage of this policy with respect to the flooring he had purchased at the Pentagon City Costco. Mr. Eshow was told he could take advantage of the sale price at the store of purchase. Thus, on October 17, 2012, Mr. Eshow returned to the Pentagon City Costco store to take advantage of the sale price on the flooring he had purchased there earlier. Store personnel at the Pentagon City Costco store explained to Mr. Eshow how he could take advantage of the new sale price. Specifically, Mr. Eshow was directed to purchase the identical flooring at the sale price then in effect at the store and then to return the flooring immediately after the purchase, using his initial sales receipt as the basis for the refund. Mr. Eshow complied with these instructions. Both Mr. Eshow's original flooring purchase in September and his refund for the same flooring in October were posted to Mr. Eshow and Ms. Safar's joint Costco membership and credit card account.

On October 17, 2012, the date of the return transaction, Costco called the Arlington County Police Department to report—erroneously—that Mr. Eshow and Ms. Safar had committed fraud in the Pentagon City Costco store. Costco made this report despite having sales information, credit card documentation, videotapes showing the second flooring purchase, and statements from store personnel who attended to the transactions at issue. Officer Rodriguez, along with another officer, responded to Costco's call that same day—October 17, 2012. Officer Rodriguez and her colleague listened to Costco's claim of alleged fraud,² and viewed a video showing Mr. Eshow's activities in the Pentagon City store on October 17, 2012. Importantly, the two officers did not view or take into account the portion of the video depicting the purchase of the flooring in question. Moreover, the two officers did not investigate the availability of sales and credit card information concerning the transactions in issue, nor did they question the sales and customer help-desk personnel who assisted Mr. Eshow with the transactions in question.

Later in the day on October 17, 2012, Officer Rodriguez filed an affidavit in support of a request for felony warrants for the arrest of Mr. Eshow and Ms. Safar for wrongfully obtaining a refund on goods they had allegedly never purchased. Based on Officer Rodriguez's affidavit, a magistrate issued arrest warrants for both plaintiffs.

Costco contends that shortly after the October 17, 2012 incident, Costco representatives contacted Officer Rodriguez and informed her that the allegations against Mr. Eshow and Ms. Safar were mistaken and that no fraud had in fact occurred. Plaintiffs do not concede that Costco representatives made any such representation, and Officer Rodriguez denies having received this information from Costco representatives in October 2012. In any event, Officer Rodriguez failed to take any steps to correct or withdraw her affidavit or to secure the withdrawal of the arrest warrants for Mr. Eshow and Ms. Safar.

Eight months later, in June 2013, Mr. Eshow was stopped for speeding in Fairfax County, Virginia. Based on the still active October 17, 2012 arrest warrant, Mr. Eshow was arrested and handcuffed in front of his family. Mr. Eshow retained counsel and on July 31, 2013, the case came before the Arlington General District Court. On that day, a Costco representative appeared and told Officer Rodriguez and Prosecutor Tingle, the prosecutor on Mr. Eshow's case, that no fraud had occurred and that the charge against Mr. Eshow was a mistake and should be withdrawn. Prosecutor Tingle communicated this information to the judge, who promptly dismissed the case against Mr. Eshow by an Order nolle prosequi.

Costco contends that the Costco representative who advised Officer Rodriguez and Prosecutor Tingle that the allegations against Mr. Eshow were a mistake did the same with respect to the allegations against Ms. Safar. Again, plaintiffs do not concede that this occurred. It also appears that when Officer Rodriguez came to court in connection with Mr. Eshow's case, she brought her investigative file, which included investigative notes confirming that the arrest warrants for Mr. Eshow and Ms. Safar were premised on the same alleged fraud. This same information was included in Prosecutor Tingle's case file. Shortly after the case against Mr. Eshow was dismissed, Prosecutor Tingle and Officer Rodriguez composed a report stating, among other things, that warrants had been issued for the arrest of both Mr. Eshow and Ms. Safar.

Standard procedures exist for the withdrawal of warrants from state-wide law enforcement databases, and both Officer Rodriguez and Prosecutor Tingle had been trained in these procedures. Specifically, the relevant procedures state that “[a]n attorney for the Commonwealth may move the court in which the warrant summons would be returnable for the dismissal and/or destruction of any executed warrant or summons issued by a magistrate.” Office of the Exec. Sec'y of the Va. S. Ct., Dep't of Judicial Servs., Gen'l Dist. Ct. Manual, Crim. Procedures, (Rev. 7/15), at 3-2 (available online at courts.state.va.us/courts/gd/resources/manuals/gdman/chapter03.pdf>). Plaintiffs allege that despite the existence of these standard procedures, Officer Rodriguez and Prosecutor Tingle maliciously and recklessly failed to take any steps to secure the withdrawal of the pending warrant for Ms. Safar's arrest.

In late 2013, Mr. Eshow and Ms. Safar applied to become American citizens. After passing her citizenship test, Ms. Safar was notified in December 2013 by United States immigration authorities that she was required to obtain a clearance letter from the police in any location where she had previously resided. To comply with this requirement, Ms. Safar, on December 23, 2013, went to police headquarters in Prince George's County, Maryland, where she had previously resided, to obtain a clearance letter. The official who took Ms. Safar's request for the clearance letter asked Ms. Safar to wait while the official retrieved the necessary paperwork. A uniformed officer then informed Ms. Safar that she was being arrested pursuant to an Arlington County arrest warrant dated October 17, 2012. As a result, Ms. Safar was incarcerated in Maryland, and the Prince George's County magistrate informed Ms. Safar that her transfer to Arlington, Virginia could be arranged only after a Prince George's County judge appeared. None of the defendants took any action to prevent Ms. Safar's arrest or to secure her release from jail.

As part of the incarceration process in Prince George's County, Ms. Safar had to disrobe for a full body search and squat while nude to ensure she was not smuggling contraband into the jail facility. Given her culture's emphasis on modesty and personal privacy, this was especially humiliating for Ms. Safar. She remained in jail until December 26, 2013, when she was brought to Arlington, Virginia. After she was transported to Arlington, Ms. Safar was served with the warrant alleging that she had defrauded Costco. She was then released. On December 27, 2013, the case against Ms. Safar was dismissed by nolle...