Present: All the Justices

MONICA L. CROMARTIE

 OPINION BY

v. Record No. 180851 CHIEF JUSTICE DONALD W. LEMONS

 JANUARY 16, 2020 

BRIAN LEE BILLINGS

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG

Joseph M. Teefey, Jr., Judge

 In this appeal, we consider whether the Circuit Court of the City of Petersburg (“circuit 

court”) erred when it granted Brian Billings’ (“Billings”) motion to strike the evidence of 

Monica Cromartie’s (“Cromartie”) claims against him for an unlawful search based on 

Code § 19.2-59, for excessive force under 42 U.S.C. § 1983 (“§ 1983”), and for false arrest 

under § 1983. 

I. Facts and Proceedings 

Cromartie filed a complaint in the circuit court against Billings, a former police officer, 

alleging two Fourth Amendment violations under § 1983 for excessive force and false arrest, a 

violation of Code § 19.2-59 for an illegal search, and claims for assault, battery, false 

imprisonment, and malicious prosecution. The matter proceeded to a day-long jury trial. 

The evidence presented at trial demonstrated that on February 12, 2015, Billings initiated 

a traffic stop of Cromartie’s vehicle for speeding. Before Billings approached Cromartie’s car, 

she exited her vehicle, yelling to Billings. Billings directed Cromartie to reenter her vehicle and 

close the door. Cromartie followed this instruction. At the time of this incident, Cromartie was a 

fifty-four-year-old woman weighing about 100-pounds. She suffered from a condition known as 

strabismus which causes a misalignment of the eyes, and had also sustained knee injuries, had a 

plate in her right ankle, was afflicted by hearing issues, and had a rough speaking voice. 
2

According to the summons for speeding written and issued by Billings, Cromartie was four feet, 

nine inches tall.

After stopping Cromartie, Billings “waited until [his] backup arrived,” then approached 

Cromartie’s vehicle. Billings’ body camera video showed Cromartie in the driver’s seat talking 

on a cell phone.1

 Billings knocked on Cromartie’s window. Cromartie glanced at Billings 

briefly and said, “What.” After a pause, Billings said, “I need you to roll down your window.” 

Cromartie made no movement to indicate that she heard Billings as she talked loudly on the 

phone. Following another pause, Billings said, “Ma’am,” and knocked on her window a second 

time. Cromartie continued talking on the phone, turned momentarily towards Billings, and said, 

“Hey officer, leave me alone.”

Mere seconds passed before Billings opened the driver’s door, grabbed Cromartie by the 

arm, pulled her from the vehicle, and forced her face-down onto the pavement. During this 

unexpected physical contact, Cromartie exclaimed, cursed, and appeared to ask Billings to 

explain the violence. In his deposition testimony, Billings claimed that he removed Cromartie 

from the vehicle to arrest her for obstruction of justice.2

 In his deposition testimony, Billings 

admitted that he did not ask her to open the door or exit the vehicle prior to using force. Billings 

could not recall whether Cromartie made threats or attempted to flee.

 1

 Through the body camera footage that is part of the record on appeal, we can measure 

the length of time between when Billings knocked on the window of Cromartie’s car and when 

Billings forced Cromartie face-down onto the pavement. Initially, Billings knocked on the 

window. After waiting thirteen seconds, Billings said “Ma’am,” and then knocked on her 

window a second time. After this second knock, Billings waited three seconds before opening 

Cromartie’s door, grabbing her left wrist, removing her from the vehicle, and forcing her facedown onto the pavement. The act of removing her from the car and taking her to the pavement 

took three seconds. In total, nineteen seconds transpired from the time Billings first knocked on 

Cromartie’s window to the moment her face struck the pavement. 2 Cromartie read Billings’ deposition testimony into evidence.
3

Once Billings forced Cromartie onto the pavement, he placed his weight on Cromartie’s 

back. The impact injured Cromartie’s forehead, teeth, lip, right eye, and right knee. Billings 

secured Cromartie on the ground and, with the help of the backup officer, handcuffed her. The 

officers then brought Cromartie to her feet against the back of her own vehicle. At that time, the 

backup officer finally told Cromartie that she was under arrest, but without stating the charge. 

Thereafter, the officers placed leg shackles on Cromartie and seated her on the curb behind her 

vehicle. Cromartie remained in the custody of the backup officer while seated on the curb. 

 With Cromartie secured on the sidewalk behind her vehicle, Billings walked to the 

driver’s side door of Cromartie’s vehicle, cursed, opened the door, retrieved Cromartie’s purse 

from the passenger seat, and began searching the purse. In his deposition testimony, Billings 

admitted that he did not ask Cromartie for “any type of ID” and he did not “ask her for 

permission to go look for her ID.” As he was searching Cromartie’s purse, Billings said, “Well, 

right now she is under arrest for . . . ,” and trailed off, not completing his sentence. Billings 

continued to search the purse, removing lingerie and opening a case containing an e-cigarette 

vaping device. He asked Cromartie if the e-cigarette had “marijuana residue in it,” to which she 

replied, “It doesn’t matter—it’s my electronic cigarette.” When Cromartie asked why Billings 

was going through her belongings, Billings responded, “It’s because you’re under arrest, and I’m 

looking for some sort of identification for you, ma’am.” After an emergency medical technician 

(“EMT”) arrived on scene and asked where Cromartie’s identification was, Cromartie replied, “It 

should be in the cigarette ashtray.” The EMT also asked Cromartie for her name and how to 

spell it, and she promptly provided this information. Prior to the EMT’s question, neither 

Billings nor the backup officer asked Cromartie for her identification.
4

Despite Cromartie stating that her identification was in the car ashtray, Billings 

nevertheless continued searching her purse. Even after finding Cromartie’s social security card 

in her purse and radioing dispatch for confirmation of her identity, Billings continued to search 

Cromartie’s belongings. He eventually found a small metal container in the purse, which he told 

another officer “look[ed] like” it contained “marijuana” or “cocaine residue.” He then placed her 

purse in his vehicle and returned to the driver’s side of Cromartie’s car to search the car once 

more.

After Cromartie’s arrest, Cromartie, Billings, and the backup officer proceeded to the 

magistrate’s office, where Billings obtained arrest warrants for simple possession of marijuana 

and obstruction of justice. Billings testified under oath to the magistrate that he “opened the car 

door, instructed her to get out,” and had told her to “open the car door or roll down the window.” 

He also stated to the magistrate that Cromartie struggled with him and that he had told Cromartie 

she was under arrest prior to this struggle. By contrast, Cromartie told the magistrate that 

Billings did not order her out of the car before he pulled her out of it. The magistrate credited 

Billings’ account of the incident and found probable cause to issue the warrants.

During the subsequent criminal trial, Cromartie moved to suppress all evidence Billings 

uncovered during the search of her car and purse. The Commonwealth did not oppose the 

motion. Accordingly, the court dismissed the possession and obstruction of justice charges 

against Cromartie, thereby ending the criminal proceedings on these charges. Thereafter, 

Cromartie was found guilty only of speeding. 

At the close of Cromartie’s case-in-chief in this civil action, the circuit court granted 

Billings’ motion to strike the § 1983 and Code § 19.2-59 claims on the grounds of qualified 

immunity and sovereign immunity, respectively. The circuit court denied Billings’ motions to 
5

strike the assault, battery, false imprisonment, and malicious prosecution claims. Billings then 

presented his own evidence and Cromartie offered no rebuttal evidence. Billings renewed his 

motion to strike the remaining claims, but the circuit court denied this motion. Cromartie and 

Billings then tendered and argued their proposed jury instructions to the court. As pertinent to 

this appeal, the following instructions were given to the jury, incorporating the Circuit Court’s 

rulings on the parties’ arguments concerning their proposed instructions: 

Jury Instruction 11 

False imprisonment is an intentional restriction of a person’s 

freedom of movement without legal right. A false imprisonment 

results from the intentional use of force, words, or acts which the 

person restrained is afraid to ignore or to which she reasonably 

believes she must submit.

Jury Instruction 14 

A person has the right to use reasonable force to resist an unlawful 

arrest. The use of that force is not an assault [or] battery. Any force 

used in resisting a lawful arrest is an assault and battery. 

Jury Instruction 16 

A lawful arrest is a restraint of another’s movement with the legal 

right to do so. An arrest by a law enforcement officer for a criminal 

offense committed in his presence is a lawful arrest. An arrest by a 

law enforcement officer who had probable cause to believe that the 

individual he arrested was committing a misdemeanor in his 

presence is a lawful arrest even if it is later discovered that the 

officer was mistaken. 

Jury Instruction 21 

For purposes of the malicious prosecution claim, malice exists 

when the controlling motive for instituting criminal proceedings is 

any reason except a genuine desire to see justice done, to enforce 

the law, or the punish the guilty. Malice may be inferred from a 

lack of probable cause. 
6

Jury Instruction 23 

You shall find your verdict for Ms. Cromartie and against Officer 

Billings if Ms. Cromartie has proved by the greater weight of the 

evidence that:

(1) Officer Billings instituted the obstruction of justice charge

against Ms. Cromartie; and

(2) that the criminal proceeding ended in a manner not 

unfavorable to Ms. Cromartie; and 

(3) the criminal proceeding was instituted by Officer Billings 

without probable cause; and 

(4) Officer Billings acted with malice.

You shall find your verdict for Officer Billings if Ms. Cromartie 

failed to prove one or more of the elements above.

Jury Instruction 24 

Mr. Billings’s warrantless arrest of Ms. Cromartie for 

misdemeanor obstruction of justice was lawful only if Mr. Billings 

had probable cause, prior to the arrest, to believe that Ms. 

Cromartie:

(1) Knowingly attempted to impede a law enforcement officer,

(2) While the law enforcement officer was lawfully engaged in 

duties as a law enforcement officer.

Mr. Billings has the burden of proof on these issues. 

 The jury returned a verdict in favor of Cromartie for the four claims that survived the 

motion to strike and awarded her $23,499 in damages. The circuit court entered an order styled 

as “Final Order” in the case on June 15, 2017. Cromartie appealed this “Final Order” to this 

Court, but by order dated December 1, 2017, this Court found the order appealed from was not a 

final order. This Court dismissed the appeal without prejudice to the right to refile and denied 

the subsequent motion to reconsider. Consequently, Cromartie filed two motions in the circuit 

court which resulted in the circuit court entering a final order on May 11, 2018, denying 

Cromartie’s motion to reconsider and granting summary judgment for the three stricken claims 
7

in Billings’ favor. Cromartie appealed the circuit court’s decision to grant Billings’ motions to 

strike. Billings did not file a separate appeal under Code § 8.01-670(A)(3) and Rule 5:9, or 

assignments of cross-error under Rules 5:18(c) and 5:28(e), to challenge the jury’s verdicts

against him. 

We granted an appeal on the following assignments of error: 

1. The circuit court erred in granting, at the close of Cromartie’s casein-chief, Billings’ motion to strike Cromartie’s claim of unlawful 

search in violation of Code § 19.2-59, and erred in denying 

Cromartie’s motion to reconsider this decision, and erred by 

consequently entering summary judgment for Billings on this 

claim based on striking the claims. 

2. The circuit court erred in granting, at the close of Cromartie’s casein-chief, Billings’ motion to strike Cromartie’s 42 U.S.C. § 1983 

claim of excessive force in violation of the Fourth Amendment, 

and erred in denying Cromartie’s motion to reconsider this 

decision, and by consequently entering summary judgment for 

Billings on this claim based on striking the claims.

3. The circuit court erred in granting, at the close of Cromartie’s casein-chief, Billings’ motion to strike Cromartie’s 42 U.S.C. § 1983 

claim of false arrest in violation of the Fourth Amendment for the 

obstruction of justice charge, and erred in denying Cromartie’s 

motion to reconsider this decision, and by consequently entering 

summary judgment for Billings on this claim based on striking the 

claims.

II. Analysis

A. Standard of Review 

This appeal arises from the circuit court’s decision to grant Billings’ motion to strike 

three of Cromartie’s claims after finding that the officer was entitled to sovereign immunity on 

the Code § 19.2-59 unlawful search claim and qualified immunity on the § 1983 excessive force 

and § 1983 false arrest claims. When this Court reviews a circuit court’s decision to strike a 

plaintiff’s evidence, it accepts as true all evidence favorable to the plaintiff and all reasonable 
8

inferences that may be drawn therefrom. Fox Rest Assocs., L.P. v. Little, 282 Va. 277, 283-84 

(2011). Determining whether an officer is entitled to immunity is a question of law this Court 

reviews de novo. City of Chesapeake v. Cunningham, 268 Va. 624, 633 (2004). 

B. Sovereign Immunity

Cromartie challenges the circuit court’s decision to grant Billings’ motion to strike her 

Code § 19.2-59 claim for unlawful search against Billings based on sovereign immunity. 

Code § 19.2-59 prohibits warrantless searches of any place, thing, or person and provides that 

any officer performing such a search shall be “liable to any person aggrieved thereby in both 

compensatory and punitive damages.” The statute creates a cause of action against law 

enforcement officers and other government agents. Buonocore v. Chesapeake & Potomac Tel. 

Co., 254 Va. 469, 473 (1997). 

“Sovereign immunity . . . applies to actions brought under section 19.2-59,” as the federal 

district court has held. Burnham v. West, 681 F. Supp. 1169, 1172 (E.D. Va. 1988). Despite the 

statute’s similarity to 42 U.S.C. § 1983, see id. at 1172 n.7, the immunity defense that applies to 

Code § 19.2-59 is sovereign immunity, not qualified immunity. Amato v. City of Richmond, 875 

F. Supp. 1124, 1143 (E.D. Va. 1994). Code § 19.2-59 concerns a “common law tort that has 

achieved constitutional dimensions, and the statute specifies the familiar tort law remedy of 

damages.” Burnham, 681 F. Supp. at 1172. Sovereign immunity, “which is primarily applied to 

bar damages liability in tort suits,” applies to Code § 19.2-59 actions. Id. Code § 19.2-59 “has 

been consistently held to provide only the same protection as that afforded by the Fourth 

Amendment.” Id. at 1173; see Buonocore, 254 Va. at 473. Accordingly, because Code § 19.2-

59 is analyzed under the Fourth Amendment, “only the constitutional standard of conduct, 
9

therefore, should apply for purposes of determining sovereign immunity in actions brought under 

section 19.2-59.” Burnham, 681 F. Supp. at 1173. 

 Virginia’s sovereign immunity doctrine protects officers only for simple negligence. Id.

at 1173. Sovereign immunity does not protect one who “acts wantonly, or in a culpable or 

grossly negligent manner.” James v. Jane, 221 Va. 43, 53 (1980). Gross negligence is the 

absence of slight diligence or the want of even scant care. Colby v. Boyden, 241 Va. 125, 133 

(1991). “Willful and wanton negligence is action undertaken in conscious disregard of another’s 

rights, or with reckless indifference to consequences with the defendant aware, from his 

knowledge of existing circumstances and conditions, that his conduct probably would cause 

injury to another.” Green v. Ingram, 269 Va. 281, 292 (2005) (quoting Woods v. Mendez, 265 

Va. 68, 76-77 (2003)).

 This Court has developed a test to determine entitlement to sovereign immunity for acts 

of simple negligence. Messina v. Burden, 228 Va. 301, 313 (1984) (citing James, 221 Va. at 53). 

Among the factors to be considered are the following: “The nature of the function performed by 

the employee; the extent of the [government’s] interest and involvement in the function; the 

degree of control and direction exercised by the [government] over the employee; and whether 

the act complained of involved the use of judgment and discretion.” Id. In this case, Billings 

satisfies these requirements because the City of Petersburg employed him as a law enforcement 

officer, a government function; law enforcement requires the exercise of significant judgment 

and discretion; the City exercised administrative control over the police department and Billings

as an employee; and the City has a clear interest in the work Billings performed. If Billings’ 

actions had constituted simple negligence, then those actions would have been entitled to 

sovereign immunity. 
10

Billings is not protected by sovereign immunity, however, because his actions exceeded 

simple negligence. First, because “settled, indisputable law” forbade Billings’ actions, he is not 

protected by the scope of sovereign immunity. Burnham, 681 F. Supp. at 1173. Second, the 

search constituted wanton and willful misconduct taken in disregard of another’s rights. Green, 

269 Va. at 292. 

 The Supreme Court of the United States has held that an officer may not conduct a 

“vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and 

cannot access the interior of the vehicle.” Arizona v. Gant, 556 U.S. 332, 335 (2009). In the 

same case, the Court also concluded that “circumstances unique to the automobile context justify 

a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest 

might be found in the vehicle.” Id. In Gant, the officers arrested Gant for driving on a 

suspended license. After Gant was handcuffed and locked in a patrol car, officers searched his 

car and discovered cocaine in a jacket pocket. Id. at 335. The Supreme Court held that police 

may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only 

when “the arrestee is unsecured and within reaching distance of the passenger compartment at 

the time of the search.” Id. at 343. Because Gant was handcuffed and locked in a patrol car, the 

Court held that the search was unreasonable. Id. at 344. The Supreme Court additionally held 

that the search could not be justified by the likelihood of discovering offense-related evidence 

because the officers arrested Gant for driving with a suspended license, “an offense for which 

police could not expect to find evidence in the passenger compartment of Gant’s car.” Id. at 344; 

see also Riley v. California, 573 U.S. 373, 385 (2014) (search permitted when it is “reasonable to 

believe evidence relevant to the crime of arrest might be found in the vehicle”); United States v. 

Norman, 935 F.3d 232, 236 (4th Cir. 2019) (same).
11

The evidence in this case established that while Cromartie was seated behind her vehicle, 

secured with handcuffs and leg shackles, and in the physical custody of the backup officer, 

Billings entered Cromartie’s car, retrieved her purse from it, and proceeded to search the purse. 

Neither her vehicle nor her purse could have contained evidence of speeding. See Gant, 556 

U.S. at 335, 344; see also Rodriguez v. United States, 575 U.S. ___, 135 S.Ct. 1609, 1621 (2015) 

(warrantless search incident to arrest of the vehicle permissible “if it is reasonable to believe 

evidence relevant to the crime of arrest might be found there”). Additionally, neither her vehicle 

nor her purse could have contained evidence related to obstruction of justice, the offense for 

which Billings obtained an arrest warrant from a magistrate after the encounter. Gant is the 

requisite “settled, indisputable law” that forbade Billings’ search. Burnham, 681 F. Supp. at 

1173. 

 The Fourth Amendment protects against unreasonable searches without a warrant and 

without probable cause. Physically intruding upon or occupying the space of a vehicle for 

purposes of gathering information is a search. See United States v. Jones, 565 U.S. 400, 404-05 

(2012). In this case, Billings entered Cromartie’s car multiple times to collect information. Each 

of these instances constituted a search under Jones. During the criminal case against Cromartie, 

the Commonwealth declined to defend Billings’ search, implicitly conceding that the searches 

were illegal.

Because Billings’ search was performed contrary to well-established law and violated 

Cromartie’s Fourth Amendment rights, it exceeded simple negligence. Therefore, sovereign 

immunity does not protect Billings. The circuit court erred by granting the motion to strike 

based on sovereign immunity for the Code § 19.2-59 claim for unlawful search. 
12

C. Qualified Immunity

“[G]overnment officials performing discretionary functions, generally are shielded from 

liability for civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 

457 U.S. 800, 818 (1988). Applying qualified immunity on a motion to strike involves a twopart analysis: first, whether the evidence, “[t]aken in the light most favorable to the party 

asserting the injury . . . shows the officer’s conduct violated a constitutional right,” Saucier v. 

Katz, 533 U.S. 194, 201 (2001); and, second, whether the right at issue, when the evidence is 

viewed in the light most favorable to the plaintiff, was “‘clearly established’” at the time of the 

violation. Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 

739 (2002)). 

i. 42 U.S.C. § 1983 False Arrest 

Cromartie challenges the circuit court’s decision to grant Billings’ motion to strike her 

§ 1983 claim of false arrest in violation of the Fourth Amendment for the obstruction of justice 

charge based on qualified immunity. The Fourth Amendment prohibits police officers from 

arresting a person without a warrant unless “there is probable cause to believe that a criminal 

offense has been or is being committed.” United States v. Johnson, 599 F.3d 339, 346 (4th Cir. 

2010). Probable cause is an objective test, requiring that “at the time the arrest occurs, the facts 

and circumstances within the officer’s knowledge would warrant the belief of a prudent person 

that the arrestee had committed or was committing an offense.” Id. The “fact that a neutral 

magistrate has issued a warrant is the clearest indication that the officers acted in an objectively 

reasonable manner or [] in ‘objective good faith.’” Messerschmidt v. Millender, 565 U.S. 535, 

546 (2012) (quoting United States v. Leon, 468 U.S. 897, 922-23 (1984)). Nevertheless, when 
13

“it is obvious that no reasonably competent officer would have concluded that a warrant should 

issue,” the “‘shield of immunity’ otherwise conferred by the warrant will be lost.” Id. (quoting 

Malley v. Briggs, 475 U.S. 335, 341 (1986)). 

Review of a § 1983 false arrest claim defers to the state’s interpretation of its own 

criminal statute for which the person was arrested. Wilson v. Kittoe, 337 F.3d 392, 399 (4th Cir. 

2003). Billings arrested Cromartie for a violation of Code § 18.2-460(a) (misdemeanor 

obstruction of justice). Code § 18.2-460(a) prohibits knowingly obstructing, without just cause, 

a law enforcement officer in the performance of the officer’s duties. Virginia recognizes a 

“broad distinction between avoidance [of a lawful arrest] and resistance or obstruction.” Jones v. 

Commonwealth, 141 Va. 471, 478 (1925); see also Wilson, 337 F.3d at 400. Merely making the 

“officer’s task more difficult” but not “imped[ing] or prevent[ing] the officer from performing 

that task” is not obstruction. Ruckman v. Commonwealth, 28 Va. App. 428, 429 (1998). 

Obstruction “ordinarily implies opposition or resistance by direct action.” Brown v. City of 

Danville, 44 Va. App. 586, 597 (2004); Ruckman, 28 Va. App. at 429 (citing Jones, 141 Va. at 

478). “The act done must be with an intention on the part of the perpetrator to obstruct the 

officer himself, not merely to oppose or impede the process.” Jones, 141 Va. at 479. 

The facts in this case demonstrate that no reasonable officer could have concluded that 

Cromartie’s behavior constituted obstruction of justice. Cromartie was pulled from her vehicle 

and forced onto the pavement mere seconds after failing to respond to Billings’ instruction to roll 

down her window. Cromartie did not threaten Billings, she did not act with an intention to 

obstruct Billings, and she did not employ direct action to resist arrest. Cromartie’s brief delay in 

responding to Billings’ instruction did not constitute obstruction of justice. Furthermore, while 

Billings obtained an arrest warrant for obstruction of justice, it was based on a misleading 
14

account of the events leading to Cromartie’s arrest. On this record, therefore, Billings’ actions 

are not entitled to qualified immunity. Accordingly, the circuit court erred by striking the § 1983 

claim for false arrest based upon qualified immunity. 

ii. 42 U.S.C. § 1983 Excessive Force 

Cromartie challenges the circuit court’s granting of Billings’ motion to strike her § 1983 

claim for excessive force in violation of the Fourth Amendment. The Fourth Amendment is the 

“source of constitutional protection against th[e] sort of physically intrusive government 

conduct” alleged in excessive force claims. Graham v. Connor, 490 U.S. 386, 395 (1989). 

Determining whether the force was reasonable requires “balancing . . . the ‘nature and quality of 

the intrusion on the individual’s Fourth Amendment interests’ against the countervailing 

government interests at stake” in light of the facts of each case. Id. at 396 (quoting Terry v. 

Ohio, 392 U.S. 1, 9 (1968)). The reasonableness of the force is evaluated from the objective 

perspective of a reasonable police officer on the scene, allowing for officers to make “splitsecond judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the 

amount of force that is necessary.” Id. at 396-97. In addressing the reasonableness of an 

officer’s actions, we must consider the facts at the moment that the challenged force was

employed. See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011). 

 The Supreme Court of the United States established a test in Graham to determine 

whether the force used by a police officer violated a person’s constitutional rights. In that case, 

Graham, a diabetic, asked a friend to drive him to a convenience store to purchase orange juice 

to counteract the onset of an insulin reaction. Id. at 388. When Graham entered the convenience 

store and observed the number of people ahead of him in line, he hurried out and asked the friend 

to drive him elsewhere. Id. at 388-89. The police officer became suspicious after Graham’s 
15

hasty entrance and exit, so he followed the car and made an investigative stop, ordering Graham 

and his friend to wait while he found out what happened in the store. Id. at 389. Back-up 

officers arrived on the scene, handcuffed Graham, and ignored or rebuffed attempts to explain 

and treat Graham’s diabetic insulin reaction. Id. The police did not allow Graham to drink a 

glass of orange juice brought to the scene by a second friend. Id. During the encounter with 

police, Graham sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured 

shoulder. Id. at 390. The Supreme Court held that the proper application of an excessive force 

test under the Fourth Amendment “requires careful attention to the facts and circumstances of 

each particular case, including the severity of the crime at issue, whether the suspect poses an 

immediate threat to the safety of officers or others, and whether he is actively resisting arrest or 

attempting to evade arrest by flight.” Id. at 396. 

To determine whether Billings’ use of force violated Cromartie’s Fourth Amendment 

rights, we apply the three factors articulated in Graham. Application of the Graham factors to 

this case demonstrates that Billings’ use of force was not objectively reasonable and therefore he 

is not entitled to qualified immunity. First, Cromartie’s infraction was minor: speeding. When 

the offense is a “minor one . . . the first Graham factor weighed in plaintiff’s favor.” Jones, 325 

F.3d at 528 (quoting in part from Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994) (internal 

quotation marks omitted)). Speeding, the offense for which Billings stopped Cromartie, is not a 

criminal offense. Speeding is a traffic infraction under Code § 46.2-874. Obstruction of justice, 

the offense for which Billings unjustifiably obtained an arrest warrant, is a misdemeanor under 

Code § 18.3-460. The first Graham factor, therefore, strongly favors Cromartie.

 Second, Cromartie posed no immediate threat to the safety of the officer or others. 

Cromartie’s window was rolled up, she was seated inside the vehicle, and she was on the 
16

telephone. Her car engine was off, and she made no threatening actions or statements. 

Cromartie had no actual, physical contact with Billings before he used force to remove her from 

her vehicle. Furthermore, Cromartie was a 100-pound woman with several health issues, 

Billings “did not have any reason to believe” that she was armed, and she made no other 

movements to indicate that she was a danger to Billings. See Smith v. Ray, 781 F.3d 95, 102 (4th 

Cir. 2015); see also Rowland, 41 F.3d at 174. Billings was a large man with a second officer on 

the scene. See Smith, 781 F.3d at 102; see also Rowland, 41 F.3d at 174. Accordingly, the 

second Graham factor also strongly favors Cromartie.

Third, Cromartie did not attempt to flee or resist arrest. Billings initiated the force 

against Cromartie when she was not looking at him. The video of the encounter does not show a 

physical struggle from Cromartie. Rather, the video shows an uninterrupted motion in which 

Billings pulled Cromartie from the vehicle and forced her onto the pavement three seconds later. 

A reasonable officer could not believe that the “initial act of pulling [one’s] arm away” when an 

officer grabs her “without warning or explanation” justifies the officer’s decision to throw the 

person to the pavement. Smith, 781 F.3d at 103. Billings pulled Cromartie from the vehicle after 

two separate knocks on the window, within mere seconds of making contact with Cromartie, and 

without having given any order to Cromartie to exit the vehicle. Billings grabbed Cromartie 

without warning or explanation. Cromartie’s reaction was instinctive, resulting from the abrupt 

physical contact by Billings. This reaction was not resistance. Id. Thereafter, Cromartie 

complied with the officers when Billings requested her other arm to put it in handcuffs. Taking 

this evidence in the light most favorable to Cromartie, the third Graham factor also strongly 

favors Cromartie.
17

 Application of the Graham factors to this case demonstrates that Billings’ use of force 

was objectively unreasonable under the Fourth Amendment. This excessive force violated 

Cromartie’s Fourth Amendment constitutional right against physically intrusive government 

conduct. 

In determining whether the right at issue was clearly established at the time of the 

violation, “‘the salient question . . . is whether the state of the law’ at the time of the incident 

provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.’” 

Tolan, 572 U.S. at 656 (quoting Hope, 536 U.S. at 741). Graham, and its progeny, Smith and 

Rowland, established such fair warning to Billings.

Following Graham, the Fourth Circuit applied the Graham factors in both Rowland and 

Smith. Rowland involved a misdemeanor larceny. 41 F.3d at 174. In that case, a police officer 

witnessed a woman drop a five-dollar bill in a bus station and saw Rowland pick it up without 

returning it. Id. at 171. The officer approached Rowland and told him to return the money to the 

woman who dropped it. See id. Rowland attempted to do so, but the woman stated that it was 

not hers. See id. Rowland then left the bus station. See id. While Rowland stood at the street 

corner, the officer approached, and “without any provocation, [] grabbed his collar and jerked 

him around, yelling harshly as he did so.” See id. at 172. Frightened by the sudden force, 

Rowland instinctively tried to escape the officer’s grasp. See id. The officer responded by 

punching Rowland and throwing him down, “throwing his weight against Rowland’s right leg 

and wrenching the knee until it cracked,” tearing Rowland’s anterior cruciate ligament. Id. 

Holding the three Graham factors disfavored the officer, the court in Rowland concluded that the 

officer was not entitled to qualified immunity.
18

Smith involved contributing to the delinquency of a minor, a “nonviolent misdemeanor 

offense . . . not of the type that would give an officer any reason to believe that Smith was a 

potentially dangerous individual.” Smith, 781 F.3d at 102. The plaintiff in Smith was likewise a 

small woman faced with two on-scene officers. Id. at 93, 102. One of the officers, Ray, was the 

defendant. In Smith, the suspect used clearly offensive language after the sudden initiation of 

force. Id. at 98. Smith was compliant with the officers until Ray suddenly grabbed her arm. 

Then, she instinctively pulled her arm away from the officer, which the Fourth Circuit 

determined was a reaction to the officer’s sudden use of force. Id. at 98, 102-03. Smith asked 

why Ray was suddenly grabbing her and then was forced to the floor. In light of Rowland, the 

court in Smith concluded that no reasonable officer could have believed that “rather than 

answer . . . why Ray was suddenly grabbing her, Ray was justified in throwing her to the ground, 

slamming his knee into her back, and wrenching her arm behind her.” Id. at 103. The court in 

Smith held that the officer was not entitled to qualified immunity.

These cases are sufficiently similar to Cromartie’s to constitute clearly established law. 

Smith and Rowland provided fair warning to Billings that the amount of force he used against 

Cromartie under the circumstances was unreasonable. In Smith, there were arguments that 

Rowland was not sufficiently similar to the facts in Smith to constitute clearly established law. 

The court in Smith concluded: 

[O]ur determination that the officer was not entitled to qualified 

immunity in Rowland was not based on any case that was factually 

on all fours. Rather, it was based on the simple fact that the officer 

took a situation where there obviously was no need for the use of 

any significant force and yet took an unreasonably aggressive tack 

that quickly escalated it to a violent exchange when the suspect 

instinctively tried to defend himself. 
19

Like the officer in Smith, in this case Billings faced a situation where there was obviously 

no need for the use of any force—writing a traffic citation to Cromartie for speeding and her 

minor delay in responding to his request to open her window—and took an unreasonably 

aggressive action of forcing her face-down onto the pavement, escalating this incident to a 

violent exchange where she suffered numerous injuries. Because the factors so strongly favor 

Cromartie and because the force was excessive under the circumstances, a police officer could 

not have believed the use of force was objectively reasonable. The holdings in Graham, Smith, 

and Rowland demonstrate that the circuit court erred in granting Billings qualified immunity on 

the excessive force claim. Because Billings’ use of force was unreasonable under the 

circumstances and because it fails both prongs of the qualified immunity analysis at the motion 

to strike stage, the circuit court erred by granting the motion to strike on the § 1983 excessive 

force claim.

D. The Law of the Case

 As discussed above, the circuit court erred by granting Billings’ motion to strike the Code 

§ 19.2-59 unlawful search claim, the § 1983 false arrest claim, and the § 1983 excessive force 

claim based on sovereign immunity and qualified immunity. As a result, we now turn to whether 

any outstanding liability questions remain for these three claims.

 An instruction given without objection will not be disturbed on appeal, Rule 5:25, and 

becomes the law of the case, governing all subsequent proceedings. “Under the law of the case 

doctrine, a legal decision made at one stage of the litigation, unchallenged in a subsequent appeal 

when the opportunity to do so existed, becomes the law of the case for future stages of the same 

litigation, and the parties are deemed to have waived the right to challenge that decision at a later 

time.” Kondaurov v. Kerdasha, 271 Va. 646, 658 (2006) (internal quotation marks omitted). 
20

The jury found in favor of Cromartie for assault, battery, false imprisonment, and malicious 

prosecution. Billings did not appeal these verdicts. Consequently, the legal decisions made by 

the jury became the law of the case and govern all subsequent proceedings, including this appeal 

and any matters on remand. By finding in favor of Cromartie for her claims of malicious 

prosecution and false imprisonment, the jury necessarily found that Billings did not have 

probable cause to arrest Cromartie for obstruction of justice and that he arrested her without 

justification. 

First, the malicious prosecution claim survived the motion to strike and the jury found in 

favor of Cromartie. Jury Instructions 21, 23, and 24 pertained to Cromartie’s malicious 

prosecution claim and established the law of such a claim. The jury found that Billings did not 

have probable cause to arrest Cromartie for obstruction of justice. To find for Cromartie on this 

question, Jury Instruction 23 required a finding that Billings instituted the criminal proceeding 

“without probable cause.” Furthermore, Jury Instruction 16 informed the jury that a lawful arrest 

is “a restraint of another’s movement with the legal right to do so.” Billings did not challenge 

the malicious prosecution verdict. Consequently, the law of the case established that the arrest 

was unlawful because it was conducted without probable cause. 

Second, the jury found in favor of Cromartie on her false imprisonment claim. As stated 

in Jury Instruction 11, “[f]alse imprisonment is an intentional restriction of a person’s freedom of 

movement without legal right.” When the jury found for Cromartie on her false imprisonment 

claim, it necessarily found that her freedom was restricted without legal right. Billings did not 

appeal the false imprisonment verdict, so the legal decision of the jury became the law of the 

case. Therefore, Billings did not have a legal right to imprison Cromartie and falsely arrested 

her. Accordingly, under the law of the case, no lawful arrest occurred because Billings 
21

performed the arrest without probable cause and restricted Cromartie’s freedom without legal 

right.

i. Code § 19.2-59 Unlawful Search

Code § 19.2-59 provides a cause of action against law enforcement officers for 

warrantless searches. “Warrantless searches, of course, are per se unreasonable, subject to a few 

well-defined exceptions.” Abell v. Commonwealth, 221 Va. 607, 612 (1930); see also Katz v. 

United States., 389 U.S. 347, 357 (1967). One such exception is the search incident to a lawful 

arrest. See Morris v. Commonwealth, 208 Va. 331, 334 (1967) (“[W]here incident to a valid 

arrest,” officers may lawfully search and seize personal effects without a search warrant) (citing 

United States v. Jeffers, 342 U.S. 48, 51 (1951)). Although a warrantless search may be 

performed incident to a lawful arrest, the law of this case determined that no such lawful arrest 

occurred. Billings did not have probable cause to search Cromartie’s purse and the search was 

not performed incident to a lawful arrest. Because the search was not lawful, no liability 

question remains regarding it and sovereign immunity does not insulate Billings from liability. 

Accordingly, we will remand this claim to the circuit court for consideration of damages only. 

ii. § 1983 False Arrest 

Because Billings lacked probable cause to arrest Cromartie and because the arrest was 

performed without legal right as established by the law of the case, there are no outstanding 

liability issues pertaining to the § 1983 false arrest claim. We will remand this claim to the 

circuit court for a determination of damages only. 

iii. § 1983 Excessive Force 

Graham presupposes a prior lawful arrest. As indicated above, Billings’ arrest of 

Cromartie was unlawful and Billings falsely imprisoned Cromartie. Jury Instruction 14 stated 
22

that a person has a right to use reasonable force to resist an unlawful arrest.

3

 Any force exercised 

by Billings was per se excessive as he did not have the legal right to use force against Cromartie 

to effectuate an illegal arrest. Consequently, no outstanding liability questions exist for the 

excessive force claim because Billings used force to effectuate an unlawful arrest. We will 

remand this claim to the circuit court for a determination of damages only. 

III. Conclusion 

 When a case is reversed and remanded, and no liability questions remain, the circuit court 

must conduct “a new trial limited to the issue of damages.” Bradner v. Mitchell, 234 Va. 483, 

491 (1987); Rawle v. McIlhenny, 163 Va. 735, 748 (1934); see also Nolte v. MT Technology 

Enterprises, LLC., 284 Va. 80, 98 (2012), Nolte v. MT Technology Enterprises, LLC., Record 

No. 140979, 2015 WL 10945196, at *2 (May 8, 2015) (unpublished). For the reasons stated, we

will reverse the circuit court’s decision to grant the motion to strike the § 19.2-59 unlawful 

search claim, the § 1983 false arrest claim, and the § 1983 excessive force claim. We will 

remand the case for proceedings consistent with this opinion. More particularly, we will remand 

the case for an assessment of such damages as Cromartie is entitled on the Code § 19.2-59 

unlawful search, § 1983 false arrest, and § 1983 excessive force claims. Finally, while we will 

remand only for an assessment of damages, we note that evidence ordinarily presented for 

liability purposes may also be relevant to the question of compensatory and punitive damages, an 

award of costs, interest, attorneys’ fees, and such other damages as Cromartie sought in her 

complaint.

Reversed and remanded. 

 3 Under common law, a citizen generally is permitted to use reasonable force to resist an 

illegal arrest. See Commonwealth v. Hill, 264 Va. 541, 546 (2002); Banner v. Commonwealth, 

204 Va. 640, 646–47 (1963).