The state of Virginia was dismissed Tuesday from a $40 million lawsuit filed by a University of Virginia student who had been charged with assaulting two ABC agents who tried to stop her for suspected underage alcohol possession.
U.S. District Judge Henry E. Hudson said he expected to rule within two weeks on a request by the Virginia Attorney General’s Office to dismiss the suit. The Attorney General’s Office is arguing that the remaining defendants — seven agents with the state’s Department of Alcoholic Beverage Control — acted reasonably on April 11, 2013, when Elizabeth K. Daly of Henrico County was arrested.
“The agents did nothing unlawful here; Ms. Daly did,” Catherine Crooks Hill, senior assistant attorney general, told Hudson at a 30-minute hearing on the motion to dismiss. In Virginia, she said, there is no right to resist even an illegal detention by police.
Lawyers for the state contend that the agents’ response under the circumstances that night was legally justified and protected by qualified immunity.
Daly, whose suit says she suffers from post-traumatic stress disorder, sat with her lawyers during the hearing. She left in tears afterward with her parents and did not comment.
The agents were on the lookout for underage alcohol violators and spotted Daly and two friends leave a Harris Teeter grocery store in Charlottesville and enter Daly’s vehicle. One of Daly’s friends was carrying a case of canned water that the agents mistook for beer.
The undercover agents approached Daly’s vehicle, displaying their badges hanging from around their necks. Daly’s 47-page suit says she and her friends were terrified and unsure that the men surrounding her vehicle were agents. After some of the men banged on her windows and one drew a firearm, she drove off in fear, she said.
Daly was charged with assaulting two of the agents she grazed as she drove off in her Chevrolet TrailBlazer. She stopped nearby after a call to 911 assured her the agents were real.
Among other things, her suit alleged malicious prosecution, failure to train ABC agents appropriately, and six counts of assault and battery.
Hill told Hudson that the officers had reasonable suspicion that criminal activity was afoot. “It doesn’t matter what was in the cans — the officers had reasonable cause,” she said.
James B. Thorsen, one of Daly’s lawyers, said there was no reasonable cause to suspect wrongdoing. Among other things, there had not been an instance of the sale of alcohol to underage customers at the Harris Teeter store in 14 years, he said.
Hudson told Thorsen that police have a right to walk up to someone and begin a conversation. Under such circumstances a person could simply walk away, said the judge.
Thorsen agreed, but said the undercover investigators were dressed like “skateboarders” and did not say why they were attempting to stop Daly. They just kept ordering her to roll down the windows.
“They jumped them ... for what?” asked Thorsen, referring to the misdemeanor beer offense. “This is not a drug case,” he added. “I think it was clear they created the terror.”
Daly was arrested and spent the night in jail, but the charges against her were later dropped and her arrest and court records expunged.
Hudson dismissed the two counts against the state, saying the commonwealth was not “a person.” The judge also indicated he thought a conspiracy to commit false prosecution claim in the suit would not survive his consideration because there was no evidence of racial or sexual discrimination.
Nevertheless, Thorsen was optimistic after the hearing. “I think we’re still in the game,” he said.
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