Howard v. Harris, Record No. 1499-22-2 (Va. Ct. App. Mar. 5, 2024)
The Court of Appeals reverses summary judgment on two issues: the illegality defense and gross negligence.
Facts. Dennis Christopher Howard took a shotgun from his friend and left a suicide note. When the friend found the note, he called the Spotsylvania County Sheriff’s Office. Deputy David Setlock and several other officers responded and found Howard in the woods behind his home. Howard was a large man, so Deputy Setlock used two pairs of handcuffs to secure his hands behind his back. He searched Howard then placed him in the back of his police vehicle. In the front seat of the car in plain view was a loaded handgun. The partition separating the front and back seats of the vehicle was also unlocked.
Deputy Setlock walked away from the vehicle several times, leaving Howard in it alone. During one of these absences, Howard was able to jump his handcuffs and grab the handgun from the front seat. He concealed the handgun under his legs. At one point, Deputy Setlock noticed that Howard’s hands were underneath his knees. He warned Howard that he would pepper spray him if he tried to jump his handcuffs but did not resecure the cuffs. At this point, Howard was in visible distress. He had already complained several times that he could not breathe and was rocking back and forth. The final time that Deputy Setlock walked away from the car, Howard used the gun he had taken from the front seat to shoot himself in the head.
Howard ultimately survived and sued Spotsylvania County Sheriff Roger L. Harris and Deputy Setlock (collectively, “Harris”), alleging that they were grossly negligent in their supervision of him. Howard alleged that he was of “unsound mind” during his apprehension and detention.
Harris moved for summary judgment, which the trial court granted for two reasons. First, in attempting suicide by use of a handgun, Howard was a felon illegally in possession of a firearm, barring recovery under Virginia’s illegality defense. Second, Howard’s gross negligence claim failed as a matter of law because Deputy Setlock exercised “some degree of care” for Howard’s safety. Howard appealed.
Issues. (1) Whether the court properly granted summary judgment on Harris’s illegality defense. (2) Whether the court properly granted summary judgment on the issue of gross negligence.
Holdings. (1) No. There was a genuine dispute of material fact as to whether Howard was of unsound mind at the time he possessed the handgun, which would bar application of the illegality defense. (2) No. A reasonable jury could find that Deputy Setlock should have and did not take some action to reasonably respond to the heightened level of threat that Howard posed once Deputy Setlock was on notice that he was able to jump his handcuffs.
Notes. (1) The illegality defense “is based on the principle that a party who consents to and participates in an illegal act may not recover from other participants for the consequences of that act.” To avail itself of the defense, a defendant must prove that the plaintiff “consented to the commission of the illegal act and engaged in it, freely and voluntarily, without duress or coercion.” However, under Code § 19.2-271.6, a criminal defendant may show that he did not have the intent required to commit the crime charged, barring conviction. Similarly, evidence that a plaintiff did not have the intent required to commit the crime alleged bars the illegality defense. Here, Howard alleged in his complaint that he was of unsound mind at the time he possessed the firearm. Thus, whether Howard had the requisite state-of-mind to have committed the crime of possessing a firearm as a felon was a genuine issue of material fact that barred summary judgment.
(2) Gross negligence is “a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such other person.” Here, although Deputy Setlock did exercise “some degree of care” when he handcuffed Howard and placed him in the back of the police vehicle, the threat that Howard posed to himself “changed significantly” once Deputy Setlock learned that Howard could jump his handcuffs. When the facts are viewed in the light most favorable to Howard, Deputy Setlock took no action to respond to this heightened threat. Deputy Setlock’s inaction coupled with his knowledge that (1) Howard was suicidal, (2) a loaded handgun was in the front seat, and (3) the partition was open and unlocked could lead a reasonable jury to find that Deputy Setlock was grossly negligent.