Howard v. Harris

897 S.E.2d 742

80 Va.App. 365

Dennis Christopher HOWARD

v.Sheriff Roger L. HARRIS, et al.

Record No. 1499-22-2

Court of Appeals of Virginia, Richmond.

March 5, 2024

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY, Marcus D. Williams, Judge Designate

Ashley T. Davis, Richmond (Christopher J. Toepp; Allen Allen Allen & Allen, P.C., Fredericksburg, on briefs), for appellant.

John P. O’Herron (William D. Prince IV; John P. O’Malley, Richmond; ThompsonMcMullan, P.C., on brief), for appellees.

Amicus Curiae: Virginia Trial Lawyers Association (Lee A. Floyd; Breit Biniazan, P.C., on brief), for appellant.

Amicus Curiae: Commonwealth of Virginia; Graham K. Bryant, Deputy Solicitor General (Jason S. Miyares, Attorney General; Andrew N. Ferguson, Solicitor General; Erika L. Maley, Principal Deputy Solicitor General, on brief), for appellees.

Amicus Curiae: Local Government Attorneys of Virginia, Inc. (Annie Kim; Jim Guynn; Guynn, Waddell, Carroll and Lockaby, P.C., Salem, on brief), for appellees.

Present: Judges O’Brien, Fulton and Callins Argued at Richmond, Virginia

OPINION BY JUDGE DOMINIQUE A. CALLINS

₃₇₁While detained in the backseat of a law enforcement vehicle, Dennis Christopher Howard jumped his handcuffs, obtained a loaded handgun from the front seat of this vehicle, and shot himself in the head. Surviving this suicide attempt, Howard sued Spotsylvania County Sheriff Roger L. Harris and Deputy David Setlock, alleging that they were grossly negligent in supervising Howard during his detainment. The trial court granted summary judgment for the defendants on two grounds: (1) by attempting suicide, Howard was a felon illegally in possession of a firearm, barring any recovery under Virginia’s illegality defense; and (2) under Elliott v. Carter, 292 Va. 618, 791 S.E.2d 730 (2016), Howard’s gross-negligence claim failed as a matter of law because Deputy Setlock exercised "some degree of care" for Howard’s safety in the events surrounding Howard’s suicide attempt. On appeal, Howard challenges these two rulings. For the following reasons, we reverse the trial court’s judgment.

BACKGROUND

On the day before attempting suicide, Howard got into a heated argument with his girlfriend, who obtained an emergency protective order against him and swore out a warrant for his arrest. Howard subsequently stated that he would "take down" any law-enforcement officers who tried to arrest him. At the time, Howard had been daily abusing alcohol and illegal drugs for several weeks.

The next day, on August 16, 2018, Howard took a shotgun belonging to his friend Linwood Chavis and left a suicide note, stating; "PLEASE GIVE TO STEPH—Tell everyone I love them and I[’]m sorry. See ya in the next life bro." Howard took the shotgun and several shotgun shells into the woods near his home, where he wandered for around an hour. Meanwhile, Chavis discovered the suicide note and called the ₃₇₂Spotsylvania County Sheriff’s Office to report that Howard had taken the shotgun and might be suicidal. Deputy Setlock and multiple other officers arrived at Howard’s home and searched the home and the surrounding wooded area. Deputy Setlock’s body camera was turned on and recorded all of his actions during the events that unfolded that day. Officers ultimately apprehended Howard behind an abandoned warehouse near his home.

After Deputy Setlock arrived at Howard’s location, he handcuffed Howard with two sets of handcuffs behind Howard’s back, noting that Howard was a "big guy." Deputy Setlock searched Howard and removed various personal belongings, a large knife, and several shotgun shells from Howard’s pockets. Deputy Setlock placed the items on the ground. Deputy Setlock asked Howard whether he had a shotgun, to which Howard responded, "No, I don’t have a shotgun …. There’s no gun. There’s no gun. If I had a gun, I’d have used it, seriously."

After the search, Deputy Setlock placed Howard in the back seat of his police vehicle with Howard’s hands cuffed behind his back. At the time of Howard’s detainment, a loaded handgun that Deputy Setlock had seized during a traffic stop the day prior was stored in plain view in a bag on the front passenger seat, and the window partition separating the front and back seats was open and unlocked. Deputy Setlock later explained that the handgun was still in his vehicle because the police evidence system was offline when he attempted to log the handgun into evidence the previous night. Deputy Setlock had also declined to store the handgun in a temporary storage locker because the lockers were often unavailable.

After securing Howard in the backseat of the police vehicle, Deputy Setlock walked away from the vehicle for the first time to search for the missing shotgun in the surrounding area. After searching for the shotgun for around two minutes, Deputy Setlock returned to the vehicle. Howard complained that he had trouble breathing, and in response, Deputy Setlock opened a window. Deputy Setlock then walked away from ₃₇₃the vehicle for a second time to retrieve the items obtained from Howard’s person from the ground.

At some point during the times that Deputy Setlock had walked away from his vehicle, Howard "jumped" his handcuffs by bringing his hands underneath his legs to the front of his body. He then reached through the open window partition separating the front and back seats of the vehicle, took the handgun from the bag in the front passenger seat, and confirmed that the handgun was loaded with a round in the chamber. Howard then moved his hands back underneath his legs and concealed the handgun beneath his legs.

After retrieving Howard’s belongings from the ground, Deputy Setlock returned to his vehicle, opened the rear left passenger door, and observed that Howard’s hands were underneath his knees. Deputy Setlock warned Howard that he would pepper spray him if he tried to jump his handcuffs, but otherwise took no actions to resecure Howard’s handcuffs or ensure that Howard was still safely detained. Howard, who at this point appeared in visible distress and was rocking back and forth, again stated that he could not breathe and assured Deputy Setlock that he was not trying to escape. Howard then asked Deputy Setlock to turn up the air conditioning. Deputy Setlock confirmed that the air conditioning was at its highest setting and then placed Howard’s knife on the front driver’s seat.

Deputy Setlock then asked Howard about the missing shotgun and threatened to charge Howard with larceny if Howard did not reveal the shotgun’s location. Howard responded, "Man, I just don’t want to do this no more," and then revealed the shotgun’s location behind a nearby building. Deputy Setlock then walked away from the vehicle for a third time to retrieve the shotgun with the help of a fellow officer and the officer’s canine, who were already closing in on the shotgun’s location at that time. After retrieving the shotgun, Deputy Setlock returned to his vehicle and placed the shotgun on the front seat and the shotgun shells into the cupholder. At this point, Deputy Setlock’s police body camera footage shows ₃₇₄Howard leaning his face through the open window partition. Deputy Setlock then walked away from the vehicle for a fourth time to converse with his fellow officer about whether to take Howard to jail or to a hospital. After attempting to contact his superior officer, Deputy Setlock returned to his vehicle and drove back to Howard’s home with Howard still detained in the backseat.

After arriving at Howard’s home, Deputy Setlock walked away from his vehicle for the fifth and final time to converse with his superior officer for a few minutes about whether to charge Howard with multiple felonies and take him to jail or take him to a hospital for a mental evaluation, in light of Howard’s threats of suicide. Meanwhile, Howard called Chavis from the backseat of Deputy Setlock’s vehicle and told Chavis, "[T]ell my mother that I’m sorry." As Deputy Setlock started walking back to his vehicle to take Howard for a mental evaluation, the officers heard a single gunshot go off. The officers then rushed to the vehicle, opened the passenger door, and discovered that Howard had shot himself in the head with the handgun. The officers then summoned an ambulance and ensured that Howard was upright and could breathe while emergency medical personnel arrived. Howard was eventually moved to an ambulance to receive medical treatment. He ultimately survived the suicide attempt. Deputy Setlock was later suspended for two weeks for violating general orders pertaining to the transportation of custodial detainees and procedures for storing evidence.

Howard subsequently sued Spotsylvania County Sheriff Roger L. Harris and Deputy Setlock (collectively, "Harris"), alleging that they were grossly negligent in their supervision of Howard by allowing him to obtain and shoot himself with a handgun while detained in Deputy Setlock’s police vehicle. In his amended complaint, Howard alleged that he was of unsound mind throughout the time of his apprehension and detention. Howard also alleged that, as a result of his suicide attempt, he suffered permanent and catastrophic injuries, including a severe traumatic brain injury.

₃₇₅After extensive discovery, the trial court granted summary judgment for Harris on two grounds: (1) in attempting suicide by use of a handgun, Howard was a felon illegally in possession of a firearm, barring any recovery under Virginia’s illegality defense; and (2) under Elliott v. Carter, 292 Va. 618, 791 S.E.2d 730 (2016), Howard’s gross-negligence claim failed as a matter of law because Deputy Setlock exercised "some degree of care" for Howard’s safety in the events surrounding Howard’s suicide attempt. The trial court declined to grant summary judgment for Harris on the grounds that the illegality defense also applied to Howard’s suicide attempt as a common-law crime, finding that there was a genuine factual dispute as to whether Howard was of...