Malicious Prosecution Case to Continue Against Patrick Henry Community College Athletic Director

Historic Henry County Courthouse

An affair between a college coach and a basketball player, a disputed confrontation between parents and a college administrator, accusations of assault and kidnapping, fifteen days in jail, claims of false arrest and malicious prosecution, and a mystery video tape: this case sounds more like a soap opera than a federal lawsuit.

A new opinion from Judge Kiser involving salacious accusations against the Patrick Henry Community College women's basketball team and athletic director is anything but boring.  See Robinson v. Davis, Case No. 4:15-cv-00040 (Dec. 30, 2015).

The plaintiffs are the parents of a former female student and basketball player at Patrick Henry Community College.  During the 2012 season, the plaintiffs learned that the coach of the women's basketball team was having an affair with another one of the players.  As a result, they removed their daughter from the team and confronted the Athletic Director in a meeting at his office.  The complaint alleges that the AD became upset, belligerent and verbally aggressive towards the parents--yelling at them to get out of his office and threatening to call the police.  

The parents claim they did nothing to physically threaten the AD or basketball coach, but apparently the AD has a different version of the facts because he swore out a warrant against the father for felony abduction, kidnapping and assault, and against the mother for assault.  The parents were arrested after their return to their Virginia Beach home.  The father was held in jail for fifteen days before being released and the charges against him dropped by the prosecutor.  The mother, who was also incarcerated for a time, was found not guilty of the assault charge.

The parents then filed a malicious prosecution and false arrest lawsuit against the Athletic Director and the sheriff's deputy who agreed to file the charges despite, according to the parents, a video tape of the incident "showing no criminal actions."  The case was transferred from Virginia Beach to Henry County, where it was then removed to the Western District of Virginia after the parent's filed an amended complaint adding federal question claims under Section 1983.

The case then came before Judge Kiser on a motion to dismiss.  The Court denied the motion as to the malicious prosecution and false imprisonment claims because, taking the facts alleged in the complaint to be true, there was no probable cause for the arrests.  The Court could not infer, as defendants' requested, that there was more to the altercation than alleged in the complaint because all facts and inferences must be view in the light most favorable to plaintiff on a motion to dismiss.  

Similarly, the Court declined to consider the video of the incident -- which defendants claim shows that the parents became irate, blocked the AD in his office and had to be dragged away by their daughter.  Although the video was referenced in the complaint, the Court determined that its contents should not be considered on a motion to dismiss because the complaint itself did not rely on what was in the video.  (The video will however be considered on any summary judgment motion).

The Court, however, granted the motion to dismiss with respect to the Section 1983 claim against the Athletic Director because his actions were not "under color of state law."  Although he was a state employee, nothing suggested that his alleged conduct (trumping up charges against the parents) was made possible because he was a state employee.  The Court explained:

To put it another way, anyone can lie to the police  Because the [Athletic Director's] actions were no more than what any private citizen could do, there is not a sufficient nexus between [his] actions and the state to convert this private tort into a federal wrong.

The case will now proceed in federal court in Danville, unless somehow the 1983 claim against the sheriff's deputy is dismissed, in which case the case may be remanded back to state court.

Judge Kiser Dissolves Injunction Allowing Confederate Flag on License Plates

On Friday, July 31, 2015, in  Danville, Virginia -- the last capital of the Confederate States of America -- U.S District Court Judge Jackson Kiser presided over a court hearing about whether the Commonwealth of Virginia could ban the display of the confederate flag on DMV-issued license plates.

The Sutherlin Mansion in Danville, Virginia, the last capital of the Confederacy, is now the Danville Museum of Fine Arts & History and is a short walk down Main Street from the US District Court.

Specifically, the question was whether the U.S. Supreme Court's recent decision allowing Texas to ban the confederate flag from its license plates in Texas also applied to Virginia.  Pursuant to an older 2001 decision from the Fourth Circuit, Virginia was prohibited from disallowing an image of the confederate flag on vanity license plates for the Sons of Confederate Veterans.  The Fourth Circuit had held that Virginia's rule was an impermissible content-based restriction (viewpoint discrimination) under the First Amendment.  Since then, nearly 1602 Sons of Confederate Veterans license plates have been issued for cars and motorcycles.

In March 2015, however, the Supreme Court held that Texas's specialty license plate design constitutes government speech, and therefore content-based restrictions on the design and message of the license plates did not run afoul of the First Amendment.  The majority opinion explained that states can use license plate slogans to urge action, promote tourism and tout local industries, and that in doing so, the state can choose to promote some slogans, images and messages, but not others.  The Court compared messages on vanity license plates to message-conveying monuments in public parks.

Given this ruling, the Commonwealth of Virginia asked Judge Kiser to dissolve the 2001 injunction that prohibited it from disallowing the confederate flag on its license plates.  In his ruling from the bench, Judge Kiser agreed that the recent Supreme Court case effectively overruled the prior Fourth Circuit decision, and thus the injunction would be dissolved when he issues a written order.  Judge Kiser rejected the Sons of Confederate Veterans' argument that the process for obtaining a vanity plate in Virginia was so different from Texas that the US Supreme Court case should not apply.  A question that still needs to be answered, however, is what will happen to the existing Sons of Confederate Veterans license plates that have already been issued.  Judge Kiser's written ruling is expected to address whether his decision applies just to new plates or also retroactively to include the existing plates.

Attorney General Mark Herring said in a statement: "This ruling will allow Virginia to remove a symbol of oppression and injustice from public display on its license plates.  Virginia state government does not have to and will not endorse such a divisive symbol.  I appreciate Gov. McAulliffe's leadership in calling for the removal of the flag and those on my team who moved quickly to get it done."

Personally, I think that not only was Judge Kiser's ruling the right decision but it was the only decision possible given the Supreme Court's prior ruling in the Texas case.