Stepp v. Cottrell ex rel. Cottrell

• Citation: 874 S.E.2d 700
• Decision Date: 26 April 2022
• Docket Number: 21-0412
• Parties: Nathan Scott STEPP, individually as a member of the West Virginia State Police, Zach W. Hartley, individually as a member of the West Virginia State Police, Okey S. Starsick, individually as a member of the West Virginia State Police, Robert B. Hickman, individually as a member of the Roane County Sheriff's Department, Roane County Sheriff's Department, and West Virginia State Police, Defendants Below, Petitioners, v. Bradley COTTRELL, ON BEHALF OF the ESTATE OF Bernard Dale COTTRELL, Plaintiff Below, Respondent.
• Court: Supreme Court of West Virginia

874 S.E.2d 700

Nathan Scott STEPP, individually as a member of the West Virginia State Police, Zach W. Hartley, individually as a member of the West Virginia State Police, Okey S. Starsick, individually as a member of the West Virginia State Police, Robert B. Hickman, individually as a member of the Roane County Sheriff's Department, Roane County Sheriff's Department, and West Virginia State Police, Defendants Below, Petitioners,

v.Bradley COTTRELL, ON BEHALF OF the ESTATE OF Bernard Dale COTTRELL, Plaintiff Below, Respondent.

No. 21-0412

Supreme Court of Appeals of West Virginia.

Submitted: January 5, 2022

Filed: April 26, 2022

Michael D. Mullins, Esquire, Candace Haley Bunn, Esquire, James E. McDaniel, Esquire, Robert L. Bailey, Esquire, Steptoe & Johnson PLLC, Charleston, West Virginia, Counsel for Petitioners Stepp, Hartley, Starsick, and West Virginia State Police

Charles R. Bailey, Esquire, John P. Fuller, Esquire, Jeffrey Michael Carder, Esquire, Bailey & Wyant, Charleston, West Virginia, Counsel for Petitioners Hickman and Roane County Sheriff's Department

Russell A. Williams, Esquire, New, Taylor & Associates, Beckley, West Virginia

Nicolette A. Ward, Esquire, Romanucci & Blandin, LLC, Chicago, Illinois, Pro Hac Vice,, Counsel for Respondent

Armstead, Justice:

The United States District Court for the Southern District of West Virginia presents two certified questions to this Court:

First, does West Virginia apply to its own Constitution the United States Supreme Court's rule as established in Graham v. Connor , 490 U.S. 386 [109 S.Ct. 1865, 104 L.Ed.2d 443] (1989) and United States v. Lanier , 520 U.S. 259 [117 S.Ct. 1219, 137 L.Ed.2d 432] (1997), which requires a constitutional claim that is covered by a specific constitutional provision to be analyzed under the standard specific to that provision and not under substantive due process?

Second, if answered in the affirmative, is a claim brought under Article III, Section 10 of the West Virginia Constitution considered redundant where Plaintiffs also alleged an Article III, Section 6 claim but are no longer allowed to pursue Article III, Section 6 as an avenue for relief?

As discussed below, because we adopt Graham and its progeny, we answer both questions in the affirmative.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter comes before the Court on two certified questions from the United States District Court for the Southern District of West Virginia. The parties stipulated to certain facts that were contained in the district court's certification order, which are summarized below.

On September 6, 2016, following a high-speed pursuit of decedent, Bernard Dale Cottrell, along West Virginia Route 14 which ended in Roane County, West Virginia, Petitioner police officers Stepp, Hartley, and Hickman each discharged their firearms and Mr. Cottrell died as a result. Respondent, as administrator of decedent's estate, then filed a complaint in the United States District Court for the Southern District of West Virginia, under its federal question jurisdiction, alleging seven separate causes of action against Petitioners.¹ At issue in this appeal is Count IV of the complaint in which Respondent alleges violations of Article III, Sections 6 and 10 of the West Virginia Constitution.

There was extensive motions practice in the federal district court that resulted in the dismissal of some counts of the complaint. However, claims for battery (Count V) and negligence (Count VI) are still pending, as well as claims for violations of 42 U.S.C. § 1983 (Counts I and II). The certified questions at issue here revolve around summary judgment motions filed by Petitioners Stepp, Hartley, and Hickman arguing that the United States Supreme Court's holding in Graham v. Connor , 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), barred a cause of action for excessive force under the substantive due process clause contained in Article III, Section 10 of West Virginia's Constitution. After granting summary judgment in favor of Petitioners Stepp and Hartley on those grounds, the district court certified the two questions outlined above to this Court.

II. STANDARD OF REVIEW

" ‘A de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.’ Syllabus Point 1, Light v. Allstate Ins. Co. , 203 W. Va. 27, 506 S.E.2d 64 (1998). Syllabus Point 1, Martinez v. Asplundh Tree Expert Co. , 239 W. Va. 612, 803 S.E.2d 582 (2017)." Syllabus Point 1, Fields v. Mellinger , 244 W. Va. 126, 851 S.E.2d 789 (2020). " ‘This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.’ Syllabus Point 1, Bower v. Westinghouse Elec. Corp. , 206 W. Va. 133, 522 S.E.2d 424 (1999)." Syllabus Point 1, Sheehan v. Mortg. Elec. Registration Sys., Inc. , 244 W. Va. 106, 851 S.E.2d 769 (2020).

III. ANALYSIS

The district court has requested that we answer the following questions:

First, does West Virginia apply to its own Constitution the United States Supreme Court's rule as established in Graham v. Connor , 490 U.S. 386 [109 S.Ct. 1865, 104 L.Ed.2d 443] (1989) and United States v. Lanier , 520 U.S. 259 [117 S.Ct. 1219, 137 L.Ed.2d 432] (1997), which requires a constitutional claim that is covered by a specific constitutional provision to be analyzed under the standard specific to that provision and not under substantive due process?

Second, if answered in the affirmative, is a claim brought under Article III, Section 10 of the West Virginia Constitution considered redundant where Plaintiffs also alleged an Article III, Section 6 claim but are no longer allowed to pursue Article III, Section 6 as an avenue for relief?

Upon our review of the record, we believe the questions to be appropriately framed by the district court and we will answer them as drafted.

The questions are presented in light of Graham and Lanier , in which the Supreme Court concluded that claims of excessive force during the course of an arrest, investigatory stop, or other seizure, are analyzed not as due process claims, but under the specific provision in which they are enumerated – the search and seizure clause. In other words, the Supreme Court has concluded that the right to be free from excessive force in those circumstances is guaranteed by the search and seizure clause, not general notions of due process. The federal district court poses to us the question of whether a claim for excessive force under the constitution of West Virginia must likewise be alleged as a violation of the specific protections against unreasonable searches and seizures enumerated in Article III, section 6 of the Constitution of West Virginia, rather than the broader due process protections set forth in Article III, section 10 of the Constitution of West Virginia.

Similarly, in the second certified question posed by the federal district court, we are asked, in light of our recent holding in Fields that no private right of action for money damages exists for violations of the search and seizure clause in our state Constitution, Article III, Section 6, if claims made under the due process clause are duplicative, or if Respondent may nonetheless find an alternate remedy under Section 10. See Syllabus Point 3, Fields.

To answer these questions, we will consider not only the relevant provisions of West Virginia's Constitution, but also those contained in the United States Constitution, and the precedent of this Court and the federal courts. The Due Process Clause in West Virginia's Constitution provides, "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." W. VA. CONST. art. III § 10. "Inherent in the due process clause of the State Constitution are both the concept of substantive due process and the concept of equal protection of the laws." State ex rel. Harris v. Calendine , 160 W. Va. 172, 179, 233 S.E.2d 318, 324 (1977) (footnote omitted).

We must look to the plain language of Article III, Section 10, to determine if it allows for a cause of action for excessive force by police officers. See State ex rel. Mountaineer Park, Inc. v. Polan , 190 W. Va. 276, 283, 438 S.E.2d 308, 315 (1993) ("As in every case involving the application or interpretation of a constitutional provision, analysis must begin with the language of the constitutional provision itself."). In making such a determination, we are mindful that " ‘[c]ourts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution.’ Syllabus point 3, State ex rel. Casey v. Pauley , 158 W. Va. 298, 210 S.E.2d 649 (1975)." Syllabus Point 2, Fields .

This Court has previously recognized, under a very unique set of facts, a private cause of action under Article III, Section 10 of our constitution. See Syllabus Point 2, Hutchison v. City of Huntington , 198 W. Va. 139, 479 S.E.2d 649 (1996). In Hutchison , the plaintiff sought and received damages he incurred as a result of delays caused by the Huntington City Council requiring him to overcome several procedural hurdles in order to obtain a building permit. Id. , 198 W. Va. at 146-7, 479 S.E.2d at 656-7. Our decision in Hutchison was clearly focused on damages flowing from a denial of procedural due process. See id. , 198 W. Va. at 150 n.21, 479 S.E.2d at 657 n.21. Reviewing the facts in Hutchison , as well as the fact that Hutchison dealt with procedural, rather than substantive, due process, we find that it provides little guidance in the case at bar. Indeed, we can identify no precedents allowing for recovery of monetary damages from excessive force by police officers under the substantive due process clause contained in Article III, Section 10.

The United States Supreme Court has analyzed substantive due process claims alleging...