Alan J. Cilman v. M.A. REEVES, Police Officer, Vienna Police Department

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1887
ALAN J. CILMAN,
Plaintiff - Appellee,
v.
M.A. REEVES, Police Officer, Vienna Police Department,
Defendant - Appellant,
and
THE TOWN OF VIENNA, VIRGINIA; DOES 1-10, employees of the
Vienna Police Department,
Defendants.
No. 09-1920
ALAN J. CILMAN,
Plaintiff - Appellant,
v.
M.A. REEVES, Police Officer, Vienna Police Department,
Defendant - Appellee,
and
THE TOWN OF VIENNA, VIRGINIA; DOES 1-10, employees of the
Vienna Police Department,
Defendants.

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Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-01099-GBL-JFA)
Argued: September 23, 2011 Decided: November 4, 2011
Before MOTZ, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Julia Bougie Judkins, BANCROFT, MCGAVIN, HORVATH & JUDKINS, PC,
Fairfax, Virginia, for M.A. Reeves. Alan J. Cilman, Fairfax,
Virginia, for Alan J. Cilman.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Alan J. Cilman brought this suit against Officer M.A.
Reeves and the Town of Vienna, Virginia alleging deprivation of
his civil rights in violation of 42 U.S.C. § 1983, illegal
search and seizure in violation of Va. Code Ann. § 19.2-59, and
various state law torts. For the reasons set forth within, we
affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
I.
On October 2, 2004, Cilman went to Neighbors Restaurant in
Vienna, Virginia for dinner, drinks, and to watch a football
game on television. Cilman arrived at Neighbors between 6:00
and 6:30 pm. Shortly after midnight, he left Neighbors and got
into his car to drive home. Officer Reeves, who was patrolling
an adjacent apartment complex, noticed Cilman’s car progressing
through the parking lot at a “high rate of speed.”
Officer Reeves proceeded to follow Cilman’s car, suspecting
that the driver could be driving under the influence of alcohol.
Officer Reeves testified that he observed a number of
infractions during his pursuit that he believed gave him
probable cause to arrest Cilman for driving under the influence,
including failing to stop at stop signs, failing to signal,
driving down the middle of the road, and accelerating quickly in

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turns. After following Cilman for several blocks, Officer
Reeves testified that he turned on his police lights, and soon
also activated his sirens. Instead of pulling over, Cilman
proceeded to drive the extra two blocks to his home. Cilman
appeared to notice that he was being followed by police and
accelerated as a result. According to Officer Reeves, Cilman
was driving so quickly that his car “bottomed out” when Cilman
turned into his driveway, causing sparks from contact with the
pavement. Cilman testified that he noticed a vehicle following
him purposefully but stated that Officer Reeves did not activate
his lights until Cilman had already turned into his driveway.
Officer Reeves stopped in front of Cilman’s driveway and
got out of his police cruiser just as Cilman was briskly walking
toward his front door. Officer Reeves told Cilman to stop and
that he was under suspicion of driving under the influence.
Cilman refused, telling the officer “this is my property, please
leave.” Cilman then entered the house and locked the door.
Officer Reeves testified that Cilman’s speech seemed slurred.
Both Cilman and Officer Reeves agree that the officer did not
tell Cilman he was under arrest at that time.
Officer Reeves called for backup and parked his car a few
houses down the street to wait for other officers. When he
heard the sirens of approaching police cars a few minutes later,
Officer Reeves returned to Cilman’s door. Officer Reeves

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testified that he banged on the door and asked Cilman to open
up. Cilman testified that no conversation took place. Officer
Reeves then kicked in Cilman’s front door and placed him under
arrest.
Officer Reeves ultimately arrested Cilman for being drunk
in public and for evasion without force. The officer offered
somewhat diverging explanations as to why he did not arrest
Cilman for driving under the influence. At his deposition and
in the police incident report, Officer Reeves stated that he did
not do so because he lost sight of Cilman when Cilman entered
his home and thus believed he could not arrest Cilman for
driving under the influence. At trial, Officer Reeves testified
that he planned to arrest Cilman for driving under the influence
when he kicked in Cilman’s door, but because Cilman said he had
consumed alcohol while inside the house, Officer Reeves changed
the charge, believing that drunk driving could not be proven
under those circumstances.
All criminal charges against Cilman were ultimately
dismissed. Cilman then filed this action against Officer Reeves
and the Town of Vienna on five claims: deprivation of his civil
rights in violation of 42 U.S.C. § 1983, illegal search and
seizure in violation of Va. Code Ann. § 19.2-59, malicious
prosecution, false arrest, and gross negligence. Officer Reeves
and Vienna moved for summary judgment. The district court

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denied the officer’s motion but granted Vienna’s. We affirmed
the denial of Officer Reeves’ motion and dismissed Cilman’s
cross-appeal as to Vienna as interlocutory. Cilman v. Reeves,
266 Fed. Appx. 270 (4th Cir. 2008).
After remand, Cilman moved for summary judgment on all five
claims against Officer Reeves. The district court granted
Cilman’s motion in part, ruling that the officer violated
Cilman’s clearly established Fourth Amendment rights when he
kicked in Cilman’s door without a warrant, and that, therefore,
the officer was liable, as a matter of law, for violations of
§ 1983 and Va. Code Ann. § 19.2-59. The district court
otherwise denied Cilman’s motion for summary judgment. Cilman
dropped the gross negligence claim before trial. Thus, only the
state tort claims, and the issues of causation and damages for
the constitutional and statutory violations went to trial.
At the conclusion of the trial, the jury found in favor of
Officer Reeves on all issues. The jury awarded zero
compensation and punitive damages to Cilman on his § 1983 and
Va. Code Ann. § 19.2-59 claims and found in favor of Officer
Reeves on the malicious prosecution and false arrest claims. It
also answered in the affirmative a special interrogatory asking,
“Do you find: With respect to the false arrest and malicious
prosecution [t]hat the defendant Officer Reeves acted in good
faith and with a reasonable belief in the validity of the

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plaintiff’s arrest.” Following the jury’s verdict, Officer
Reeves moved to set aside the grant of summary judgment as to
liability to Cilman on the constitutional and statutory claims,
and to have judgment entered in the officer’s favor on those
claims. For his part, Cilman moved for a new trial. The
district court denied both motions.
On appeal, Officer Reeves challenges the grant of summary
judgment in favor of Cilman as to liability on the
constitutional and statutory claims, and the denial of his
motion for a judgment as a matter of law on those claims.1
Cilman cross-appeals the grant of summary judgment in favor of
Vienna, the lack of clarifying language in a special
interrogatory given to the jury, and the district court’s
refusal to give the jury one of Cilman’s proposed instructions.
II.
We first address the district court’s grant of summary
judgment in favor of Cilman on liability for his 42 U.S.C.
§ 1983 and Va. Code Ann. § 19.2-59 claims. We review de novo a
district court’s grant of summary judgment. Pueschel v. Peters,
1 Although the jury awarded zero damages on these claims,
Officer Reeves appeals the finding of liability because Virginia
law provides that “[a]ny officer found guilty of a second
offense under this section shall, upon conviction thereof,
immediately forfeit his office.” Va. Code Ann. § 19.2-59.

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577 F.3d. 558, 563 (4th Cir. 2009). “[I]n ruling on a motion
for summary judgment, the nonmoving party's evidence is to be
believed, and all justifiable inferences are to be drawn in
[that party’s] favor.” Hunt v. Cromartie, 526 U.S. 541, 552
(1999) (internal quotation omitted). Although a warrantless
entry of a home to effectuate an arrest is presumptively
unlawful, Payton v. New York, 445 U.S. 573, 586 (1980), such an
entry is permitted if an officer has a combination of probable
cause and exigent circumstances. See Payton, 445 U.S. at 583-
90.
In granting summary judgment as to liability in favor of
Cilman on his constitutional and statutory claims, the district
court relied principally on Welsh v. Wisconsin, 466 U.S. 740
(1984). The court concluded that, in Welsh, “[t]he Supreme
Court has held that police may not make a warrantless entry into
a home to make an arrest for DUI,” and that “suspicion of drunk
behavior cannot, as a matter of constitutional law, create an
emergency that justifies warrantless entry.” In so holding, the
district court erred.2
2 Our prior affirmance of the denial of summary judgment on
qualified immunity grounds to Officer Reeves is not at odds with
this holding. Then, a material dispute of fact as to whether
Cilman’s driving was sufficiently erratic so as to warrant his
arrest precluded a grant of summary judgment to Officer Reeves.
Indeed, the district court itself noted that “a genuine issue of
material fact” prevented the grant of summary judgment. To be
(Continued)

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Contrary to the district court’s contention, Welsh does not
establish a categorical rule that police may never make a
warrantless entry into a home to effect an arrest for driving
under the influence. The Welsh Court held only that, because
Wisconsin treated a DUI as a civil non-jailable offense for
which the maximum penalty was a fine of $200, no exigent
circumstances justified the warrantless entry at issue there.
Welsh, 466 U.S. at 753-54. The Court emphasized that “the
penalty that may attach to any particular offense seems to
provide the clearest and most consistent indication of the
State’s interest in arresting individuals suspected of
committing that offense.” Welsh, 466 U.S. at 754 n.14; see also
id. at 754 (“[The penalty] is the best indication of the State’s
interest in precipitating an arrest.”).
Unlike the Wisconsin law at issue in Welsh, driving under
the influence in Virginia is a Class 1 misdemeanor punishable by
sure, the court also denied the motion because it believed that
Welsh compelled a ruling that a warrantless entry into a
suspect’s home to make an arrest for a non-violent traffic
offense always constitutes a clearly established Fourth
Amendment violation. Our affirmance, in two paragraphs, “for
the reasons stated by the district court” does not, however,
signal wholesale adoption of the entire rationale offered by the
district court, particularly when that rationale was at odds
with the court’s holding that a genuine issue of material fact
prevented the grant of summary judgment. When Cilman later
moved for summary judgment, this same factual dispute required
the court to deny that motion.

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up to a year in jail and a $2500 fine. Va. Code Ann. § 18.2-
270(A); id. § 18.2-11. A conviction may also result in a one-
year driver’s license suspension, id. § 18.2-271, and require
the offender to complete a mandatory alcohol safety action
program. Id. § 18.2-271.1. If the blood alcohol level is
determined to be above .15, Virginia law imposes a five day
mandatory jail term. Id. § 18.2-270(A)(i).3
Although the Supreme Court later observed that “Welsh drew
a distinction between jailable and nonjailable offenses, not
between felony and misdemeanor offenses,” Illinois v. McArthur,
531 U.S. 326, 335–36 (2001), in Welsh itself, the Court left
open the possibility that the Fourth Amendment could impose a
wholesale ban on warrantless home arrests for minor offenses.
3 Cilman argues that Officer Reeves only arrested him for
the lesser charge of being “drunk in public,” a Class 4
misdemeanor for which the penalty is a fine of no more than
$250, and thus Officer Reeves did not think he had committed a
serious crime. This argument does not help Cilman because in
assessing Officer Reeves’ acts we consider not his subjective
beliefs but whether his acts were objectively reasonable. See
Whren v. United States, 517 U.S. 806, 813 (1996). Viewed
objectively, Reeves had probable cause to arrest Cilman for
driving under the influence. Virginia law does not require that
a person be within an officer’s view at all times prior to an
arrest for driving under the influence; nor does imbibing
alcohol in one’s home save a wrongdoer from a DUI conviction.
Instead, Virginia law provides that an officer may arrest a
person “whether or not the offense was committed in such
officer’s presence.” Va. Code Ann. § 19.2-81(D); see also
Cutright v. Commonwealth, 601 S.E.2d 1, 3 (Va. Ct. App. 2004)
(noting that a police officer’s observations can support a DUI
conviction even in the absence of a blood alcohol test).

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Welsh, 466 U.S. at 749 n.11 (“Because we conclude that, in the
circumstances presented by this case, there were no exigent
circumstances sufficient to justify a warrantless home entry, we
have no occasion to consider whether the Fourth Amendment may
impose an absolute ban on warrantless home arrests for certain
minor offenses.”). We need not here determine the exact
parameters of the rule set forth in Welsh because even if
Officer Reeves did violate Cilman’s Fourth Amendment rights,
those rights were not “clearly established.”
No controlling Supreme Court or Fourth Circuit precedent
speaks to a person’s right to be free from a warrantless entry
into his home in circumstances like those in the case at hand.
Numerous out-of-circuit cases do address this issue, but courts
have divided on this question. Some hold that commission of a
misdemeanor drunk driving offense subject to a possible jail
term does not justify a warrantless home arrest. Hopkins v.
Bonvicino, 573 F.3d 752 (9th Cir. 2009); Patzner v. Burkett, 779
F.2d 1363 (8th Cir. 1985); State v. Saale, 204 P.3d 1220 (Mont.
2009); Norris v. State, 993 S.W.2d 918 (Ark. 1999); State v.
Flegel, 485 N.W.2d 210 (S.D. 1992). Others, however, hold to
the contrary. See, e.g., People v. Thompson, 135 P.3d 3 (Cal.
2006); City of Middletown v. Flinchum, 765 N.E.2d 330 (Ohio
2002); State v. Legg, 633 N.W.2d 763 (Iowa 2001); State v. Paul,
548 N.W.2d 260 (Minn. 1996); Cherry v. Commonwealth, 605 S.E.2d

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297, 306 (Va. App. 2004); Stark v. New York State Dep’t of Motor
Vehicles, 104 A.D.2d 194, 196 (N.Y. App. 1984). In light of the
divergence in these holdings, we can only conclude that Officer
Reeves was entitled to qualified immunity. See Malley v.
Briggs, 475 U.S. 335, 341 (1986) (“[I]f officers of reasonable
competence could disagree on [the] issue, immunity should be
recognized.”). Accordingly, the district court erred in
granting summary judgment to Cilman on liability as to the
§ 1983 and Va. Code Ann. § 19.2-59 claims.4
III.
Next, we consider whether the district court erred in
denying Officer Reeves’ post-trial motion to enter final
judgment as a matter of law in his favor on liability as to the
§ 1983 and Va. Code Ann. § 19.2-59 claims.
4 Although Virginia law does not recognize qualified
immunity, the district court also erred in granting partial
summary judgment on Cilman’s Va. Code Ann. § 19.2-59 claim. See
Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988). Under
Virginia’s sovereign immunity doctrine, a police officer
performing discretionary functions is entitled to sovereign
immunity if he did not commit “gross negligence.” Colby v.
Boyden, 400 S.E.2d 184, 186 (Va. 1991). “[G]ross negligence is
the ‘absence of slight diligence, or the want of even scant
care.’” Id. at 189 (quoting Frazier v. City of Norfolk, 362
S.E.2d 688, 691 (Va. 1987)). Given the division in authority as
to whether a warrantless entry in to the home is lawful under
the circumstances of this case, Officer Reeves could not be
found grossly negligent in presuming his actions were lawful.
This is perhaps why Cilman dropped his gross negligence claims
before trial.

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A trial court must enter a final judgment as a matter of
law if “there can be but one reasonable conclusion as to the
verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). Judgment as a matter of law is appropriate if there is
not “sufficient disagreement to require submission to a jury”
and the evidence “is so one-sided that one party must prevail as
a matter of law.” Id. at 251-52.
In this case, although the jury’s verdict did not
specifically address liability as to the constitutional and
statutory claims, it did sufficiently resolve the disputed facts
in favor of Officer Reeves. For the jury not only rejected
Cilman’s false arrest and malicious prosecution claims; it also
expressly answered in the affirmative a special interrogatory
that asked, “Do you find: With respect to the false arrest and
malicious prosecution [t]hat the defendant Reeves acted in good
faith and with a reasonable belief in the validity of the
plaintiff’s arrest.” The only reasonable conclusion from this
verdict is that the jury concluded that Cilman did drive
erratically, justifying Officer Reeves’ subsequent arrest of
Cilman.
Cilman objects strenuously to the application of the
special interrogatory to the constitutional and statutory
claims, and argues that the special interrogatory was limited to
the false arrest and malicious prosecution claims. Although he

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is correct that the special interrogatory included limiting
language, the state tort claims and deprivation of
constitutional and statutory rights claims all arise out of the
same set of facts. Given that the jury in this case determined
that Officer Reeves acted in good faith and with a reasonable
belief in the validity of the arrest for the purposes of
Cilman’s state tort claims, a subsequent jury could not conclude
that Cilman obeyed all traffic signals and displayed no drunk
behavior for the purpose of the constitutional and statutory
claims. Returning this case for a second jury trial would be
futile in light of the jury verdict in this case. Therefore,
Officer Reeves was entitled to judgment as a matter of law on
the constitutional and statutory claims.
IV.
We now turn to Cilman’s cross-appeal.
A.
Cilman initially appeals the district court’s grant of
summary judgment to Vienna. Unlike Officer Reeves, Vienna is
not entitled to qualified immunity based upon the good faith
actions of its employees, see Owen v. City of Independence, 445
U.S. 622, 638 (1980), and so we must determine whether, in this
circumstance, Vienna should be held liable for the actions of
Officer Reeves.

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Three elements establish supervisory liability under
§ 1983:
(1) that the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct
that posed ‘a pervasive and unreasonable risk’ of
constitutional injury to citizens like the plaintiff;
(2) that the supervisor’s response to that knowledge
was so inadequate as to show ‘deliberate indifference
to or tacit authorization of the alleged offensive
practices,’; and (3) that there was an ‘affirmative
causal link’ between the supervisor’s inaction and the
particular constitutional injury suffered by the
plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
Even assuming that Vienna failed to train Officer Reeves,
Cilman must show that the failure to train was the result of a
“deliberate indifference” on the part of the city. See Doe v.
Broderick, 225 F.3d 440, 456 (4th Cir. 2000). As in Broderick,
“[t]here is simply nothing in the record to suggest that
[Vienna’s] lack of instruction of its officers . . . was the
result of an affirmative, conscious decision.” Id.
Cilman argues that the police department had not adequately
responded to past complaints involving searches and seizures,
had not disciplined its officers for Fourth Amendment
violations, and even affirmatively instructed officers to
violate the Fourth Amendment. But, to support this contention,
Cilman offered only isolated and unconnected incident reports
and complaints. Even if we agreed that these incidents show
violations of the Fourth Amendment, we have previously held that

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such “isolated, unprecedented incidents” do not suffice to
create municipal liability. Id. at 456.
Nor do we find persuasive Cilman’s contention that Vienna
“ratified” and “aid[ed] and abet[ed]” Officer Reeves’ misconduct
by filing “specious” new charges “to help cover or lessen
Reeves’ misconduct.” Because Cilman did not raise this argument
in the district court, it is waived. Moreover, Cilman points to
no official policy or custom maintained by Vienna that mandates
or condones conduct in violation of the Fourth Amendment. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). We
agree with the district court that Cilman has not “set forth
sufficient facts to establish that the supervising officials had
knowledge, actual or constructive, that Town of Vienna police
officers were engaged in conduct that . . . posed a pervasive
and unreasonable risk of constitutional injury to citizens like
the plaintiff.”
B.
Cilman also maintains that the district court made two
trial errors.
First, he contends that the district court erred in not
clarifying that the special interrogatory applied only to the
false arrest claim and not to the constitutional and statutory
claims. This argument is meritless. In fact, the district
court did include the clarifying language that Cilman requested.

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The special interrogatory reads in its entirety: “Do you find:
With respect to the false arrest and malicious prosecution
[t]hat the defendant Reeves acted in good faith and with a
reasonable belief in the validity of the plaintiff’s arrest.”
Of course, as explained above, this clarifying language does not
preclude the conclusion that Officer Reeves had probable cause
to arrest Cilman for driving under the influence for the purpose
of the constitutional and statutory claims.
Second, Cilman contends that the district court erred in
refusing to give the jury Instruction Q, which reads: “Reeves
must show by a preponderance of the evidence that at the time he
arrested plaintiff Alan Cilman he had probable cause for each
element of the offense.” Instead, the trial court instructed
the jury as follows: “Probable cause to institute criminal
proceedings against the plaintiff existed if the facts and
circumstances known to defendant and on which he acted were such
that a reasonable and prudent man acting on the same facts and
circumstances would have believed the plaintiff guilty.”
We review challenges to jury instructions for abuse of
discretion. Nelson v. Green Ford, Inc., 788 F.2d 205, 208 (4th
Cir. 1986). When considering an objection to jury instructions,
we determine if the jury instructions, taken as a whole, fairly
state controlling law. Barber v. Whirlpool Corp., 34 F.3d 1268,
1279 (4th Cir. 1994).

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The district court’s instruction fairly stated controlling
law; indeed, it is almost verbatim the definition of probable
cause used by the Supreme Court of Virginia. See Stamathis v.
Flying J, Inc., 389 F.3d 429, 437 (4th Cir. 2004) (“Under
Virginia law, ‘probable cause is defined as knowledge of such
facts and circumstances to raise the belief in a reasonable
mind, acting on those facts and circumstances, that the
plaintiff is guilty of the crime of which he is suspected.’”
(quoting Stanley v. Webber, 260 Va. 90, 96 (2000))). Therefore,
the district court did not err in refusing to give Cilman’s
instruction.
V.
For the foregoing reasons, we reverse the district court’s
partial grant of summary judgment in favor of Cilman as to
liability on his 42 U.S.C. § 1983 and Va. Code Ann. § 19.2-59
claims, and we remand to the district court to enter final
judgment as a matter of law in favor of Officer Reeves on these
claims. We affirm the district court’s grant of summary
judgment in favor of Vienna. Finally, we reject Cilman’s
remaining cross-appeal contentions.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

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