Smith v. Tolley

Decision Date04 April 1997
Docket NumberCivil Action No. 3:95CV979.
Citation960 F.Supp. 977
PartiesBooth SMITH, Plaintiff, v. Gary D. TOLLEY, Defendant.
CourtU.S. District Court — Eastern District of Virginia

John H. OBrion, Derrick Thomas, Cowan & Owen, P.C., Richmond, VA, for Defendant.


PAYNE, District Judge.

In this action, brought pursuant to 42 U.S.C. § 1983, Booth Smith asserts several claims against Gary D. Tolley, a Chesterfield County Police Officer.1 Smith alleges that Tolley:

(1) deprived Smith of the right to retreat into his home, as secured by the Fourth and Fourteenth Amendments to the United States Constitution;

(2) deprived Smith of the right to privacy and to be secure in his house, as protected by the Fourth and Fourteenth Amendments to the United States Constitution, when Tolley forced entry into Smith's home;

(3) deprived Smith of the right to liberty and to be secure in his person under the Fourth and Fourteenth Amendments to the United States Constitution when Tolley seized and bound him;

(4) deprived Smith of the right to due process when Tolley placed him in captivity without a valid or invalid Fourth Amendment arrest warrant issued upon probable cause or upon observation of a crime;

(5) conspired to deprive Smith of constitutionally secured rights and privileges in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution;2

(6) falsely arrested and imprisoned Smith; and

(7) caused Smith mental suffering.

In vindication of these seven claims, Smith seeks damages and a declaratory judgment about whether police officers, "defacto and dejure," are subject to the Fourth Amendment. If the answer to the latter question is no, Smith seeks a declaratory judgment regarding whether the reason that police officers are not required to have valid arrest warrants is because they are a private police force, operating under military policies.3

Tolley's motion for summary judgment contends that he: (i) lawfully entered the Smiths' property to serve Linda Smith with a warrant for her arrest; (ii) lawfully entered the Smiths' home to serve the warrant because he also had reason to believe that Linda Smith resided therein and had reason to believe she was home at that time; and (iii) reasonably believed that Smith committed misdemeanor offenses (obstruction of justice or refusal to assist a police officer) in his presence, and therefore, could arrest Smith without a warrant.4 In the alternative, Tolley claims that he is entitled to qualified immunity from liability.


This action arises out of the attempt by Tolley to serve Booth Smith's wife, Linda, with an arrest warrant at her residence. The warrant charged Linda Smith with failure to attend General District Court in Petersburg after having been properly let to bail and/or recognized to do so in violation of Virginia Code § 19.2-123.5 According to Smith, Tolley was approximately the tenth police officer to attempt to serve the warrant. (Video Transcript at 13-14, oral argument; Original Complaint at ¶ 53).

On January 10, 1994, Sergeant M.A. Fromal of the Chesterfield County Police Department, directed Tolley to serve an arrest warrant on Linda Smith at her residence, 2720 Executive Drive, Chester, Virginia. (Tolley Aff. ¶ 5). It is undisputed that Booth and Linda Smith resided together at that address. Later that afternoon, Tolley attempted to carry out Fromal's directive and drove to the Smiths' residence. However, upon his arrival, Tolley saw that no cars were parked near the home and no lights were on inside the house. Nor was Tolley able to observe movement of people inside the house. (Tolley Aff. ¶ 6). Based upon these facts, and because it was a weekday afternoon, Tolley concluded that Linda Smith was not at home and was perhaps at work. (Tolley Aff. ¶ 6). Consequently, Tolley did not stop to deliver the warrant. Id.

That evening, Tolley and Owen C. Barker, also a Chesterfield County police officer, once again attempted to serve the arrest warrant on Linda Smith. (Smith Complaint ¶ 14, 15) (Tolley Aff. ¶ 7) (Barker Aff. ¶ 4) (Pittman Aff. ¶ 6, Patterson Aff. ¶ 3(a)). The officers arrived at the Smiths' residence at approximately 10:30 p.m. They chose that hour because, in their experience, there was a better chance of successfully serving an arrest warrant on a weekday in the late evening for the reason that residents are likely to be at home at that time. (Tolley Aff. ¶ 8) (Barker Aff. ¶ 5). The officers arrived at the Smiths' residence in a clearly marked police car, and they were dressed in their police uniforms and wore badges. (Plaintiff's Admission No. 1, No. 4). Upon reaching the residence, they observed that the first floor of the Smiths' two-story home was illuminated by interior lights; that a car was parked in the street immediately in front of the home; and that another car was parked in the Smiths' driveway. (Tolley Aff. ¶¶ 11, 13). (Barker Aff. ¶¶ 8, 10). Tolley also saw three individuals inside. (Tolley Aff. ¶ 13). In perspective of their previous experience, Tolley and Barker believed that Linda Smith would be in her place of residence so they parked and approached the house from the front.

Upon sighting the marked police car, as it parked in front of the house, Smith asked his friend to videotape the events, turned on all exterior lights, left the house and confronted the officers outside to inform them that they were crossing "no trespassing" signs. (Second Amd. Compl. ¶ 15, ¶ 16) (Smith Aff. 8). Tolley told Smith that he had a warrant for Linda Smith's arrest and asked if Linda Smith was in the home. (Tolley Aff. ¶ 16) (Barker Aff. ¶ 12). Smith did not respond.6

Smith also alleges that the officers failed to identify themselves and a lawful purpose for their presence. (Second Amd. Compl. ¶ 18). Smith did not, however, rebut Tolley's sworn affidavit that, in fact, he had informed Smith that he had a warrant for Linda Smith's arrest.7 Moreover, considering that Smith has stated that at least ten previous efforts had been made to serve the warrant, it appears that: (1) Smith knew that the warrant was outstanding and (2) these officers were there in yet another effort to serve it. As to identification, Smith acknowledges that the officers wore police uniforms and badges and that he observed the clearly marked police car from which they emerged before approaching the house. (Second Amd. Compl. at ¶ 12, ¶ 13, ¶ 15).

Having refused to respond to Tolley's inquiry, Smith began moving back toward his house. Tolley and Barker followed Smith. (Tolley Aff. ¶ 17, Barker Aff. ¶ 13). Once they reached the front porch, Tolley again informed Smith that he had a warrant for Linda Smith's arrest and again asked if Linda Smith was at home. Once again, Smith refused to answer. (Tolley Aff. ¶ 19) (Barker Aff. ¶ 15). While Tolley, Barker and Smith were on the porch, a male individual inside the Smiths' residence began recording the events with a video camera. (Tolley Aff. ¶ 20) (Barker Aff. ¶ 16) (Video).8

Smith then moved inside the open front door of his home and attempted to close the door in Tolley's face while Tolley was trying to ascertain the presence of Linda Smith (Tolley Aff. ¶ 21) (Barker Aff. ¶ 17) (Video). Tolley prevented the door from closing, pushed the door open and stepped inside. (Tolley Aff. ¶ 22) (Barker Aff. ¶ 18) (Video). All the while, Smith berated Tolley for violating the Constitution. Once inside, Tolley arrested Smith for obstruction of justice and handcuffed him. Smith looked directly at the camera and asked "Did you get that [on film]"?9

Tolley, in a calm and respectful manner, repeatedly informed Smith that he had a warrant for Linda Smith's arrest, showed Smith the warrant and asked whether Linda Smith was at home. (Video). Time and again, Smith evaded Tolley's questions by misquoting legal principles respecting arrest and search and seizure and by asserting that Tolley had violated the Fourth Amendment by entering his home. (Video). After Smith had moderated his conduct, Tolley removed the handcuffs from Smith. Apparently, Tolley also had determined that placing Smith under arrest was erroneous under county policy. (Patterson Aff. at ¶ 3i). Smith, therefore, was under restraint or arrest for a very brief span of time. At the time of his release, Smith became even more confrontational, raising his voice, denouncing Tolley as a criminal and shaking a finger in Tolley's face. (Video).

Tolley and Smith then debated the legitimacy of the warrant, and the authority which it conferred. Tolley remained calm, although Smith acted boisterous and agitated. Shortly thereafter, a friend of the Smiths entered the Smiths' home through the front door and began questioning Tolley's presence as well as the validity of the warrant. He also asked Tolley to leave the premises. The friend acted rudely, arrogantly and belligerently. Smith joined-in with his friend, and the two continued to harass Tolley.

Thereupon, Tolley's requested back-up arrived. And, without serving the warrant, Tolley and Barker left with the newly arrived officer. Throughout the entire encounter, Smith attempted to provoke Tolley, baiting him as if Smith wished that Tolley would violate the Constitution, so as to catch the encounter on video. Even in these most trying of circumstances, Tolley remained calm and composed, respectfully informing Smith that he simply wished to do his job and serve the warrant on Linda Smith. (Video).


Summary judgment is appropriate only when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must "determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S....

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