*1 This, Maj. Op. judgment at 835. court and direct it to enter for in this case. See claims, AT arbitrary. I & T. This would moot the issues of majority is not after-acquired mitigation. evidence and It Returning principles, to first disagree. grant follows that I would AT & T’s mo- authority promul- to Secretary had the attorneys’ tion fees. to the FMLA gate regulations enforce Secretary did—and what only. What the reasons, respectfully For these I dissent. majority acknowledges she did—was beyond expand scope to of the statute Congress.
that which was intended majority point explicitly: concedes this course, possible,
It is that the defini- will, adopted by Secretary
tion even in perhaps
some cases—and this PARK; Tony Park, Brenda D. S. provide FMLA to illness- coverage one— Plaintiffs-Appellees, wоuld Congress es never envisioned protected. Maj. Op. Expanding coverage at 835. Stephen SHIFLETT; Simms, R. Jeff in- beyond Congress of the statute what Defendants-Appellants. only “arbitrary, capricious,
tended is not No. 00-1809. statute,” manifestly contrary to the [and] Chevron, at 467 U.S. 104 S.Ct. of Appeals, United States Court it a usurpation legislative but is also Fourth Circuit. I
power, violation of Article of the Con- Argued Jan. 2001. short, In arbitrary stitution. it was May Decided 2001. capricious agency for the not to create a exception minor when it made the illness question expand
regulations
protection beyond of the FMLA what was by Congress.
intended
Unelected, unaccountable, and therefore
agency officials do not have the constitu right power
tional law. make See Chevron; I, 1;§ Const. art.
U.S. Whit By contradicting express
man. will of
Congress, Secretary what the did here was law,
to make not enforce it. The Secre
tary’s regulations they as relate to “con
tinuing treatment” are unconstitutional
usurpations Congressional power
should be found unconstitutional under the
Chevron doctrine either because are
contrary plain to the terms of the statute Secretary’s regulations
or because the
impermissible constructions of the statute.
Accordingly, I would reverse district *4 Joseph Stelly, Anton
ARGUED: Smithers, Newman, Wade & Thompson, Richmond, Childress, VA, for Defendants- Albro, Tremblay E. & Appellants. Thomаs Charlottesville, VA, Smith, L.L.P., BRIEF: Peter Plaintiffs-Appellees. ON J. L.L.P., Caramanis, Smith, Tremblay & *5 Charlottesville, VA, Plaintiffs-Appel- lees. TRAXLER,
Before WIDENER and Judges, and MALCOLM J. Circuit HOWARD, Judge States District United Carolina, North for the Eastern District of sitting by designation.
OPINION HOWARD, J. District MALCOLM Judge: R.
Appellants Stephen Shiflett and Jeff magis- appeal the decision of Simms judge awarding appellees trate Brenda S. $450,000 D. Park Tony Park and $50,000 respectively. part We affirm in part. and reverse I. canning Tony Park were
Brenda Mineral, on Virginia, home in food their They November 1998. left their home the stove burner on under the canner. p.m. p.m. and 11:00 to walk between 10:30 The Parks became concerned about the purchase canning the Mobil Mart to home, to potential fire hazard at their lids. Mrs. Park entered the store tо inquire as ' why to deputies taking so-long. were Parks arrived at the Mobil When the Mrs. Park was ordered to wait outside Mart, sufficiently give the store was lit to Deputy Shiflett. impression that someone was still working pulled Park inside. Mrs. on the deputies emerged When from the opened door which without the use of ex- store, the Parks informed them of them proceeded Park cessive force. Mrs. concern about the fire hazard at their and, so, in doing triggered enter the store home and at asked that least one of them Park the alarm. Mr. remained outside. go be allowed to turn home and off the stove; deputies refused to let them County at Louisa operator leave. Park a call deсided to make another Department Sheriffs received from 911 call alerting request ADT her to the alarm at that the fire depart- activation thereafter, Shortly the Mobil Mart. Mrs. ment be sent to turn her home to off the placed Park a 911 call to the Louisa pressure call, Coun- During cooker. Mr. ty Department and Park, Sheriffs informed the officers, against the orders of the operator opened she had the door and began away to walk to return Dep- home. found no one inside and that an alarm had uty grabbed Mr. Simms Park and told him been The Parks triggered.. agreed to wait being he was detained until the owner at the until law scene enforcement officers arrived, of the store but that he was not arrived. placed under arrest. He Mr. Park handcuffs and directed him toward the County Deputies
Louisa Sheriffs Ste- *6 braiding. Deputy Shiflett then kicked Mr. phen responded Shiflett and Simms Jeff legs apart Park’s and him up threw dispatcher’s regarding the call the alarm against building. the At no time did Mr. They activation. were aware that a wom- arrest, Park store, physically an resist nor triggered had entered the did he alarm, ever verbally physically called and waiting was at the threaten the However, deputies scene. The were never informed officers. officer Simms testified any that the call potential was criminal that Mr. Park cooperative. was not offense, breaking entering. i.e. and In call, the midst of her second 911 Mrs.
The deputies asked the Parks a few Park turned around and saw her husband questions, provided and the Parks the dep- pressed up against the front of the store uties with their names and address and being and handcuffed. Mrs. Park claims related the events that led to the 911 call. that she ran toward her husband and was Deputy inspected Shiflett the store and grabbed by Deputy Shiflett. The officers nothing found to indicate a forced entry. claim that Park Mrs. initiated the contact appeared place No out of merchandise and by grabbing Deputy Shiflett It is undis- nothing appeared missing. only to be The however, puted, Deputy that Shiflett twist- thing drawer, suspicious was that a cash back, ed Mrs. arm Park’s behind her threw containing only change, loose lying was on up against her the building, and hand- the floor in the office. cuffed sprayed her. He her twice in the (“OC”) Because the planned eyes Parks on a with only Capsicum Oleoresin store, trip brief they to the mistakenly spray range.1 left from close (“LSCD”) County 1. The Department Louisa Sheriffs Regulations Rules and Manual di- (1) for the Western District of include dila- trict Court spray The effects of OC Charlottesville, closing of at in which capillaries Virginia, and instant tion of eyelids, eyes through swelling of the parties they testified to events as claim (2) inflammation, in- occurred, respiratory immediate awarded retching, cluding coughing, $450,000 uncontrollable $50,000 to Mrs. Park and to Mr. fоr air gasping shortness of breath and respectively. Park throat, and gagging with a sensation (3) burning sensations to the immediate II. membranes, and
mucous
skin
inside
at
The standard of review issue
Park
each
nose and mouth. Mrs.
suffered
primarily
pertains
here is
that as
to the
of these effects.
by
deputies.
of the Parks
detention
Deputy
transported
then
Mrs.
Shiflett
suspicion
questions
Ultimate
reasonable
County
De-
Park to the Louisa
Sheriffs
a
a person
to make warrantless seizure of
arriving,
partment. Upon
Deputy Shiflett
of fact
questions
involve both
and law and
inside, tripping
push-
took Mrs. Park
de
appeal, though
are reviewed
novo on
ing her as she entered. He then threw
appellate
сourt is bound
the trial
evening
Park
that
Mrs.
into
cell. Later
findings
leading
court’s
of historical facts
Park to
Deputy
transported
Shiflett
up
stop
clearly
to the
or search unless
jail in
Dur-
regional
Orange, Virginia.
erroneous based on the evidence. See
drive,
ing
Deputy
manipulated
this
Shiflett
States,
690-91,
Ornelas v. United
517 U.S.
menacing
the car
“in a
the volume of
radio
(1996)
116 S.Ct.
credibility clearly determinations under a stitutes suspicion,” “reasonable which this standard. See United States v. court has called “a propo erroneous commonsensical (4th Cir.1998) 765, ... Gray, properly F.3d 770 sition crediting 137 officers who on a findings daily court’s factual in observe basis what tran (holding district spires on the street.” search and seizure context are reviewed on United States v. Lender, (4th Cir.1993). 151, error, however, 985 F.2d 154 appeal for clear whether Bеcause the intrusion by created an inves given probable facts constitute is a cause minimal, tigative stop is the reasonable which legal determination is reviewed de novo). suspicion standard is not onerous. See Harris, 1262,
United States v.
39 F.3d
(4th Cir.1994)
1268-69
(holding officer’s
III.
leaving apartment
observation of man
in a
A.
vehicle after confidential informant advised
sacred,
held more
right
“No
is
or is
drug delivery was imminent constitutes
more carefully guarded,
the common
suspicion
stop);
reasonable
United
law,
right
every
than the
individual to
Moore,
(4th
1105,
States v.
817 F.2d
possession
per
and control of
own
his
Cir.) (holding
nighttime
officer’s
observa
son, free from all restraint or interference
tion of a
walking awаy
man
from a desert
others,
unless
clear and unquestiona
ed area
burglar
just gone
where
alarm had
Ohio,
authority
Terry
ble
of law.”
v.
392 off, constitutes
suspicion
reasonable
U.S.
88 S.Ct.
L.Ed.2d 889
man).
stop
(1968) (quoting
Pac. R.
Union
Co. v. Bots
Terry
A
investigative
stop
250, 251,
ford, 141
U.S.
S.Ct.
can cross the line and turn into an arrest
(1891)).
L.Ed. 734
It is from this sacred
under certain circumstances. The test for
light that
genesis.
this case finds its
determining whether an individual
is
Through
years of Fourth
Amend-
whether,
custody or under arrest is
under
ment jurisprudence,
attempted
courts have
circumstances,
totality
of the
the “sus
to strike a delicate balance between the
pect’s freedom of action is
curtailed to
needs of law enforcement
con-
officеrs who
degree associated with formal arrest.”
stantly
place
way,
themselves
harm’s
420, 440,
Berkemer v. McCarty, 468 U.S.
and the
rights
sacred
described above.
(1984)
104 S.Ct.
851 entering. judge rules.” Id. at The trial also deter- legal to a neat set of duced with 232, court has articu- mined that the officers were familiar 103 2317. This S.Ct. they the Parks and knew that lived within probable cause standard as “facts lated the walking within the officer’s distance of the scene of the inci- and circumstances warrant the be- dent. knowledge would [which] that the arrestee prudent person
lief of a However, findings even based on the committing an of- had committed or was court, regardless the trial of what the offi- Manbeck, v. 744 fense.” States United scene, knew cers when arrived on (4th Cir.1984). F.2d Parks, they arrived to find the who had alarm, triggered waiting for them Tony B. D. Park front of a deserted convenience store in Thus, on the claims of Mr. Park based tray register which the to the cash was whether he the court first must determine misplaced. just simply in fact de- was arrested Second, law. the court tained under the It that the intrusion is true must determine whether the arrest was minimal, an investigative stop created is Third, lawful. it must be determined suspi and that therefore the reasonable Tony whether Park was the victim of as- cion onerous. standard is not See United sault, battery imprisonment. and false (4th Moore, 1105, 1107, States v. 817 F.2d Cir.) (holding nighttime officer’s observa
1. Detention v. Arrest walking away tion of man from otherwise burglar alarm had deputies following The list the factors as deserted area where suspicion just gone suspi rise to off constitutes reasonable giving reasonable this man). (1) However, report stop case: of an alarm from the cion to this court (2) suspicion” lack of in the held that must dispatcher, lighting has “rеasonable (3) store, and, that ... being “particularized Mrs. Park intoxicated include evidence (4) being activity the cash drawer on the floor. criminal is afoot.” United States (4th Sprinkle, The must evaluate the combined v. 106 F.3d 618-19 Cir. court 1997). The line under a reasonable strength determining of these factors bottom is that the court must suspi suspicion analysis whether or not there was reasonable circum totality cion to detain Mr. Park. See United States consider Sokolow, 1, 8-10, picture deciding v. 109 S.Ct. stances —the whole 490 U.S. —in (1989). 1581, 104 suspicion whether officers had reasonable L.Ed.2d justify an activity of criminal so as to trial determined investigative stop. lit and that Park was store was well not facts intoxicated. These historical It call as to whether or is close reviewed for clear and therefore should be suspicion to not the officers had reasonable States, error. See Ornelas United However, Mr. Park. stop and detain 690-91, 116 S.Ct. U.S. court need not decide this issue as (1996). Furthermore, L.Ed.2d 911 based that Mr. Parks was not court concludes court, of the trial the officers findings on arrested. simply detained but was were that a had entered the aware woman *9 store, alarm, 911, Mr. finding It is the of this court that triggered the called a degree freedom was curtailed to waiting deputies was at the scene. The Park’s Berkemer call associated with formal arrest. were never informed that the was for 420, 440, offensе, 104 any breaking McCarty, v. 468 U.S. S.Ct. potential criminal i.e. 852 (1984).2
3138, Battery, L.Ed.2d 317 Even not- 3. Assault and False 82 deputies Imprisonment the fact withstanding Park that told Mr. he could not specifically law, Under Virginia slight inconceivable, leave, based on the facts it is another, clothes, touching est of or of his court, by the trial that Mr. as determined cane, anything or else attached to his to leave Park would have felt free after rude, if person, angry done insolent or wall, kicked, 'being against thrown battery. manner constitutes a Crosswhite patrol in the car. handcuffed and locked Barnes, 471, 242, v. 124 139 Va. S.E. 243
(Va.App.1924). on findings Based of court, fact the trial Mr. Park was Wrongful 2. Arrest arrested, wrongfully and in the course of above, court As discussed this has arrest, illegal up this he was thrown probable articulated the cause standard as wall, against legs were apart, his kicked “facts and circumstances within the offi and he was handcuffed. This constitutes knowledge cer’s would warrant the [which] touching the unlawful with a associated that the prudent person belief of a arres battery. committing
tee had committed or was
an
The common law tort definition of
Manbeck,
v.
744
offense.” United States
“assault” is an intentional offer to touch
(4th Cir.1984).
F.2d
person
of another that created in the
mind of the victim a reasonable apprehen
proba-
The officers assert that
had
battery.
sion of an
e.g.
immediate
See
However,
ble cause to
this asser-
arrest.
Epps
Virginia,
v. Commonwealth
findings
tion flies in the face of the factual
of
Va.App.
(Va.App.1998).
that Mr. Park was told that he not was C. Brenda S. Park Therefore, under arrest. on the based totality of the circumstances —the histori- Brenda Park contends that the cal findings fact the trial of court—the restraining use force the officers in evidence Mr. Park reveals that was arrest- her was excessive. findings Based on the cause, therefore, probable ed without of the trial court contained in the facts set above, the trial court in detеrmining was correct irresponsible forth pep use of that Mr. wrongfully per Park was arrested. spray range twice from close on the Department 2. The County Louisa Sheriffs whether an arrest has occurred ... is wheth- states, Regulations Rules and person Manual “The er a reasonable under the circum- Lest, stops persons, in interviews or stances would have felt free to leave.”
853
requires
tion
me to balance the nature and
Park was indeed excessive.
unarmed Mrs.
force,
on
quality
plain-
of the intrusion
analysis
“requires
excessive
An
of
against
tiffs’ Fourth Amendment interests
to the facts and circum-
careful attention
case,
importance
governmental
of the
inter-
including
pаrticular
stances of each
issue,
alleged by
ests
the instant intrusion. The
crime at
whether
severity
of the
depends
outcome of that test
on all of the
an
threat
to
suspect poses
immediate
others,
they
circumstances of the case as
existed
safety
of the officers or
of
per-
at the time
the incident from the
actively resisting
whether he is
arrest
officer,
spective
police
of
reasonable
not
by flight.”
arrest
attempting to evade
hindsight
with
at the time of this
Connor,
386, 398,
20/20
v.
109
490 U.S.
Graham
trial.”
(1989).
1865,
as after to ancing, listening extensive testimo ny parties, from all the he that determined Qualified Immunity D. the force used the officers was unrea prevail “A should police officer questions sonable and excessive. The that qualified immunity on an of if a assertion are whether should asked or not rea in possessing reasonable officer same officers, police acting under the sonable have that con formation could believed his circumstances, same or similar would have Rizzo, Slattery 939 duct was lawful.” v. twice, range, sprayed from close Mrs. Park (4th Cir.1991) Ten (quoting F.2d 216 OC, with and would have handcuffed Garner, 1, 11, 105 nessee U.S. S.Ct. throwing and arrested the Parks after (1985)); 85 L.Ed.2d see also ground? them the wall and on the against Karnes, McLenagan v. F.3d court does think so. This not (4th Cir.1994) (stating regardless that Damages E. exited, probable actually of
whether
cause
qualified immunity
to
if the
ficer is entitled
damages
magistrate judge
The
awarded
officer “could have ... believed that his
$450,000
$50,000 Mr. Park and
lawful”).
conduct was
The determination
Park.
con-
defendants-appellants
The
qualified immunity
of whether
exists is
awarding
that
erred in
such
judge
tend
ultimately
question
for the court. The
damages. Only compensatory damages
determining qualified
standard used for
matter,
appropriate in this
as the
immunity
“objectively
is an
reasonable”
not
the court to assess
plaintiffs did
ask
standard. The court does not look to the
Therefore,
any punitive damages.
subjective
in granting
intent of the officer
question
is whether or nоt the
qualified immunity.
compensation
awarded were excessive
damages.
the Parks’
calculus of
reasonableness
defendants-appellants con
embody
must
allowances for the fact that
As
tend,
in the record to
police officers are often forced to make
there is no evidence
Mr.
split-second judgements
damage
circumstances
sustain a
award for
Park.
—in
tense,
physical injury
no
rapidly
that are
uncertain and
evolv There was
evidence
general
Mr.
and the
rule
ing
the amount of force that
is
suffered
Park
—about
necessary
Sig
plaintiff
only
in a
must not
show
particular situation.
is
(4th
Hill,
Chapel
injury,
perceptible
man v.
413,
Diggs
damages
compensate
201
of
to
her
26
875
S.E.
(1960).
871,
expenses
The
Va.
$50,000 looks like an award of awarded Attorney’s Appropriate F. Fees damages, and it is clear from the
punitive
that
an award is
law and the record
such
judge’s thorough
trial
Based on the
re-
However, in a
in this case.
inappropriate
matter,
view of this
the costs and fees
plaintiffs
rights
in which a
civil
case
upheld.
should be
violated, it is appropri-
found to have been
damages. Carey v.
ate
award nominal
IV.
247, 265, 98
Piphus, 435 U.S.
S.Ct.
“[N]othing
against
can
militate
so
(1978);
Bain,
Norwood v.
is and should (4th Cir.1984)); see Fed.R.Civ.P. the trial court which has had the benefit 52(a) ... (“Findings of fact shall not be set hearing testimony and of observ of the erroneous, due clearly aside unless the ing the demeanor of witnesses given opportunity shall to the of regard community which knows the and its credibility of the of the trial court standards,” Dehydrating Solomon Co. witnesses”). (8th 439, 447 Guyton, 294 F.2d Cir. 1961), we must defer to district magistrate judge’s reviewed the Having damages underlying damages court’s assessment of unless award to findings “ sup- Park and the evidence injustice’ or a ‘mon Mr. and Mrs. ‘plain there is findings, I am satisfied that porting those Id. at 448. ‘shocking’ strous’ or result.” magistrate judge’s findings are not result, the district As a we review that, given egre- erroneous and clearly damage court’s determination and thе gious nature of the violations award for abuse of discretion. inflicted, injuries physical and mental States, John v. United F.3d St. not as a damages awarded are excessive Cir.2001). (8th matter of law. I too believe that our review for exces- whether dam- siveness should be same II. by jury judge, or a ages are assessed A. an Sevigny that our standard would be minimum, compensatory At appropriate apply. begin one to I with the award however, to Mrs. Park the amount recognized have that “[t]he we sure, $450,000. eye. To be this award is not of the left Both hands were sore and insubstantial, egre- but neither was the having pain she was the lower back and inju- addition, nor gious treatment she received In hip. she continued to have incident, at the hands of Officer psychological ries she sustained in- effects from the Shiflett. cluding difficulty sleeping, nightmares, and panic eventually severe attacks. She was According to the evidence found credible diagnosed with moderate severe Post magistrate judge, Officer Shiflett (PTSD) *13 Traumatic Disorder Stress and re- evening by Mrs. Park that grabbed psychiatrist psychologist ferred to a and back, arm, her arm behind her twisted treatment, for further which was continu- against sprayed threw the building, her ing at the time of trial. in with eyes pepper spray her twice at (in range close contravention of the de- upon Based this and other unrefuted partment regulations governing rules аnd evidence, magistrate judge found that pepper spray the use and once after Mrs. Park suffers from PTSD as a result pulling away glasses), haphazardly her of Officer Shiflett’s actions. At the time of water over in a futile dumped her head trial, Mrs. Park had approxi- sustained effects, away effort to wash and then $7,800 mately out-of-pocket in expenses placed space her in the confined of the expected and was to incur between in patrol car handcuffs where she suffered $200,000 $300,000 and medical future pain from additional and shortness of expenses establishing virtually un- —thus by spray. During breath caused compensatory damages contested of over struggle, pushed she was also to the $250,000 solely past for and future medical ground enough silly.” hard to “knock her expenses physical associated with her and injuries. mental jail, After she was released from Mrs. by family Park physi- was examined her conclude, I am unprepared to as a mat cian. In addition to finding Park to law, $200,000 ter of that the additional withdrawn, upset physician and not- compensatory damages which magis ed that Mrs. Park had sustained numerous excessive, trate awarded was or that physical injuries (many by pho- confirmed the findings supporting the award were tographs), including a contusion to her Metts, clearly erroneous. Goodwin v. Cf. head, cheek, swelling eye over the left and (4th Cir.1989) (hold 885 F.2d 164-65 large hands, bruisеs on her at the swelling ing that compensatory damage awards of hand, fingers right base of her on her $65,000 $90,000 and were not excessive
incipient bruises on the back and side of despite the fact that plaintiffs only proved
forearm,
her
“grab injury”
right
on the
$3,500 in out-of-pocket expenses:
will
“We
arm,
upper
and abrasions to both knees.
not disturb the district court’s discretion
blood-shot,
Her eyes
yellowish
were
with a
ary ruling merely because the compensato
tinge.
right
splinted
Her
hand was
ry
considerably
award
[plain
exceeded
she
orthopedics.
was referred to
The fol-
losses”),
out-of-pocket
tiffs’]
oveiruled in
lowing day, Mrs. Park
physician,
called her
Oliver,
part by Albright v.
510 U.S.
very upset
still
agitated,
and was pre-
(1994);
S.Ct.
L.Ed.2d 114
scribed Valium.
Sevigny,
(holding
pensatory damages plain- for violation of III. rights inadequate tiffs civil as because summarize, plaintiffs recovery court to his out- To I believe it is error for limited of, arbitrarily and took no account this-court to substitute its view of-pocket expenses pain appropriate of an amount of among things, plaintiffs other by magis- and awarded suffering). that ascertained who, nonjury in a trial unlike trate us, hearing has had the benefit of B. observing the demeanor of testimony sup- findings I the witnesses. Because the magistrate likewise believe that $50,000 compensatory dam- judge’s porting award of the award of compensatory clearly Mr. and Park are not supported by findings ages Mr. Park is which clearly erroneous and the amounts not excessive are not erroneous. law, I would affirm all as a matter judge’s
aspects magistrate of the decision. America,
UNITED STATES of
Plaintiff-Appellee,
v.
Larry BLANDING, Defendant-
Appellant. America,
United States
Plaintiff-Appellee,
Larry Blanding, Defendant-Appellant. 00-4063,
Nos. 00-4086. Appeals,
United States Court of
Fourth Circuit.
Argued Feb. 2001. May
Decided 2001. Bell, III,
ARGUED: James Edward Bell, III, L.L.C., Law Firm of J. Edward