UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1172

LAWRENCE W. TRULL,

Plaintiff - Appellant,

v.

FRANCIS D. SMOLKA; BRIAN W. TANNER; COUNTY OF HENRICO,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Henry E. Hudson, District 

Judge. (3:08-cv-00460-HEH)

Argued: December 8, 2010 Decided: February 18, 2011

Before WILKINSON and NIEMEYER, Circuit Judges, and Patrick 

Michael DUFFY, Senior United States District Judge for the 

District of South Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS & ASSOCIATES, PC, 

Richmond, Virginia, for Appellant. Benjamin Adelbert Thorp, IV, 

OFFICE OF THE COUNTY ATTORNEY, Henrico, Virginia, for Appellees. 

ON BRIEF: Joseph P. Rapisarda, Jr., Karen M. Adams, OFFICE OF 

THE COUNTY ATTORNEY, Henrico, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

I.

On May 9, 2008, Lawrence W. Trull (“Trull” or “Appellant”) 

filed a Complaint in the Circuit Court for the County of 

Henrico, Virginia asserting federal and state causes of action 

arising out of events that took place when Officer Francis D. 

Smolka and Officer Brian W. Tanner (“Smolka” and “Tanner” or 

collectively “the officers”) responded to a 911 call regarding a 

domestic dispute between him and his wife, Ms. Mary Picchi 

(“Picchi”). Defendants Smolka, Tanner, and County of Henrico 

(collectively “Appellees”) removed the case to federal court 

based on the federal claims asserted by Trull. On September 18, 

2008 the district court granted Appellees motion to dismiss as 

to three causes of action that related to the entry into the 

bathroom where they found Trull. On January 14, 2009, the 

district court granted Appellees motion for summary judgment as 

to the remaining claims and dismissed the suit. Appellant has 

appealed. We possess jurisdiction to hear this appeal pursuant 

to 28 U.S.C. § 1291. As explained below, we affirm.

II.

On May 13, 2006, Officers Smolka and Tanner of the County 

of Henrico police department responded to a 911 call reporting a 

domestic dispute at 5403 Riverdale Drive in the County of 
3

Henrico (“the residence”). The call was placed from that 

residence by Picchi. At the time of the incident, Trull and 

Picchi were married and lived at the residence together. 

Prior to arriving at the residence, the officers understood that 

the caller alleged that her husband had threatened to have her 

removed from the home.

When the officers arrived, Picchi invited them in and 

explained that Trull had contacted his daughter to have Picchi

removed from the house. There were no signs that the 

altercation between Picchi and Trull had been physical. 

Additionally, she informed the officers that an antique firearm

may have been in the house, but she was not sure of its 

location. Pursuant to Picchi’s consent, the officers conducted 

a brief exploration of a back bedroom. However, they were 

unable to locate the firearm. 

Trull is disabled; he is in a wheelchair. When the officers 

arrived at the residence, he was inside the main hallway 

bathroom. The door was closed and locked. The officers ordered 

Trull to come out of the bathroom. He stated a general 

unwillingness to exit the bathroom and explained that he was in 

a wheelchair. When he did not comply with the officers’ request 

to exit the bathroom, they used force to enter. The amount of 

force was such that the door was not damaged. 
4

Trull alleged in his Complaint that when the officers 

opened the door he was knocked “violently across the bathroom.” 

He maintains that he was so frightened that he urinated on 

himself, had severe anxiety, had chest pains, and suffered 

emotional injury. Once the door was opened, he exited the 

bathroom pursuant to the officers’ directions. 

After exiting the bathroom, Trull proceeded into the 

kitchen. Tanner told Trull that Picchi had a right to stay in 

the residence and suggested that he could stay with his family 

members living in the area. Trull responded that he could not, 

because his daughter’s home was not wheelchair accessible. 

At some point, the officers became aware that Trull was 

experiencing worrisome medical symptoms including chest 

tightness. In response, they radioed for EMS assistance. EMS 

arrived shortly after the call. Trull’s daughter and her 

boyfriend arrived around the same time as the EMS and went to 

his side. While EMS was assessing Trull’s condition, his 

daughter and her boyfriend were asked to step away, but they 

continued to speak with him during this time. 

Trull initially told them that he did not want to go to the 

hospital. The officers were clear that they thought he should 

go to the hospital. For example, Smolka told one of the EMTs 

that he thought Trull should go to the hospital. Additionally, 

Trull’s daughter encouraged the EMTs to take her father to the 
5

hospital. He was never handcuffed, he did not attempt to leave 

the kitchen until the EMTs placed him on a stretcher, and he did 

not resist when EMTs offered to physically help him out of the 

wheelchair. 

The officers did not tell Trull that he was required to go 

to the hospital, threaten him with arrest if he did not go, or 

make any other showing of force to persuade him to go. They did 

not assist Trull out of the wheelchair, help him into the 

ambulance, or accompany him to the hospital. Approximately 30 

minutes after he exited the bathroom, Trull departed from the 

residence and traveled to St. Mary’s Hospital in the ambulance.

III.

A.

Appellant appeals from the district court’s order 

dismissing numerous claims pursuant to Fed. R. Civ. P. 12(b)(6). 

We review a district court’s dismissal of claims under Fed. R. 

Civ. P. 12(b)(6) de novo. Andrew v. Clark, 561 F.3d 261, 264 

(4th Cir. 2009). A motion to dismiss pursuant to Fed. R. Civ. 

P. 12(b)(6) tests the sufficiency of the complaint and therefore 

we accept as true the facts alleged in the complaint and 

determine whether they support a plausible claim for relief. 

See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. 

v. Twombly, 550 U.S. 544 (2007). Legal conclusions without 
6

facts making them plausible are insufficient to survive a motion 

to dismiss. See id.

B.

We first address Appellant’s argument that the district 

court erred in holding that Trull failed to state a claim that 

the entry into the bathroom violated the Constitution. We find 

that in this case, the officers’ actions were justified by the 

exigent circumstances.

The exigent circumstances exception to the warrant 

requirement “basically encompasses officer safety and the 

destruction of easily-disposed evidence.” Figg v. Schroeder, 312 

F.3d 625, 639 (4th Cir. 2002) (quoting Gould v. Davis, 165 F.3d 

265, 270-71 (4th Cir. 1998)). The exception is triggered when 

officers have a “reasonable suspicion” that such circumstances 

exist at the time of the search or seizure in question. Id.

(citing United States v. Grogins, 163 F.3d 795, 797 (4th Cir.

1998)). Generally, reasonable judgments of the officers on 

scene are not second guessed by the courts. Id. (citing United 

States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985)). 

However, “the burden is on the government to demonstrate exigent 

circumstances that overcome the presumption of unreasonableness 

that attaches to all warrantless home entries.” Welsh v. 

Wisconsin, 466 U.S. 740, 749 (1984).
7

With that framework in mind, the issue is whether the 

officers’ entry into the bathroom can be justified based on 

exigent circumstances. Specifically, whether based upon the 

facts known to the officers at the time they entered the 

bathroom, the entry was justified by a concern for safety. 

The officers were at the residence responding to a domestic 

situation, Trull refused to exit the bathroom to talk with them,

and they were under the impression that there may have been a 

gun somewhere in the residence. The officers were justified in 

concluding that a person involved in a marital spat, who was 

refusing to speak with officers, could be a threat to them while 

they were in the home discussing the dispute with his wife. 

Under these circumstances, the officers were also correct in 

concluding Trull could be a threat to himself. Therefore, the 

entry into the bathroom was justified by the exigent 

circumstances.

Appellant argues that Georgia v. Randolph, 547 U.S. 103 

(2006), requires a holding that the officers violated Trull’s 

Fourth Amendment rights by entering the bathroom when he 

objected. He argues that Picchi’s consent to the entry into the 

house and bathroom did not trump Trull’s refusal of consent. We 

disagree with that reading of Randolph, because here the 

officers were investigating a domestic situation rather than 

conducting a search for evidence of a crime. 
8

In Randolph, Janet Randolph called the police to report a 

domestic situation Id. at 107. She complained to police about 

her husband’s drug use, claimed that it created financial issues 

which impacted their marriage, and consented to a search of the 

marital residence. Id. Her husband was at the scene, refused 

consent, and objected to the search. Id. The officers searched 

and found evidence they sought to use against Randolph in a 

criminal prosecution. Id. The Court held that the evidence 

should be suppressed, because the search violated his Fourth 

Amendment right to be free from unreasonable search and seizure. 

Id. at 114 (“Since the co-tenant wishing to open the door to a 

third party has no recognized authority in law or social 

practice to prevail over a present and objecting co-tenant, his

disputed invitation, without more, gives a police officer no 

better claim to reasonableness in entering than the officer 

would have in the absence of any consent at all”). 

The Court noted that a search for evidence based on consent 

to search a dwelling was different than law enforcement’s need 

to enter a home for purposes of investigating a domestic 

situation. Randolph, 547 U.S. at 118. Specifically, the court 

stated the distinction as follows:

But this case has no bearing on the capacity of the 

police to protect domestic victims. The dissent's 

argument rests on the failure to distinguish two 

different issues: when the police may enter without 

committing a trespass, and when the police may enter 
9

to search for evidence. No question has been raised, 

or reasonably could be, about the authority of the 

police to enter a dwelling to protect a resident from 

domestic violence; so long as they have good reason to 

believe such a threat exists, it would be silly to 

suggest that the police would commit a tort by 

entering, say, to give a complaining tenant the 

opportunity to collect belongings and get out safely, 

or to determine whether violence (or threat of 

violence) has just occurred or is about to (or soon 

will) occur, however much a spouse or other co-tenant 

objected. . . . 

Id. at 118. 

In this case, the situation contemplated in Randolph

occurred. The police arrived at the residence based on a report 

of a domestic disturbance. There was no outward evidence that 

there was any violence, but a definite determination could not 

be made without talking to both parties. The facts of this case 

fall outside the holding in Randolph, but are within the 

situation contemplated in the above quoted portion of that 

opinion. 

Additionally, the need for the officers to enter the 

bathroom to interview Trull is supported by Virginia law. 

Virginia Code section 19.2-81.3 provides the framework that 

officers are required to follow when dealing with a domestic 

situation. The statute does not speak in terms of creating 

duties, but does provide specific actions that officers should 

follow, especially relevant are sections B and C. They provide 

as follows:
10

B. A law-enforcement officer having probable cause to 

believe that [an assault and battery or violation of a 

protective order] has occurred shall arrest and take 

into custody the person he has probable cause to 

believe, based on the totality of the circumstances, 

was the predominant physical aggressor unless there 

are special circumstances which would dictate a course 

of action other than an arrest. The standards for 

determining who is the predominant physical aggressor 

shall be based on the following considerations: (i) 

who was the first aggressor, (ii) the protection of 

the health and safety of family and household members, 

(iii) prior complaints of family abuse by the 

allegedly abusing person involving the family or 

household members, (iv) the relative severity of the 

injuries inflicted on persons involved in the 

incident, (v) whether any injuries were inflicted in 

self-defense, (vi) witness statements, and (vii) other 

observations.

C. Regardless of whether an arrest is made, the 

officer shall file a written report with his 

department, which shall state whether any arrests were 

made, and if so, the number of arrests, specifically 

including any incident in which he has probable cause 

to believe family abuse has occurred, and, where 

required, including a complete statement in writing 

that there are special circumstances that would 

dictate a course of action other than an arrest. The 

officer shall provide the allegedly abused person, 

both orally and in writing, information regarding the 

legal and community resources available to the 

allegedly abused person. Upon request of the allegedly 

abused person, the department shall make a summary of 

the report available to the allegedly abused person.

Va. Code § 19.2-81.3. 

The record does not show the officers had evidence of any 

violence at the scene. However, courts have recognized that 

domestic situations can escalate quickly: “[d]omestic 

disturbances have a low flash point, and ‘violence may be 

lurking and explode with little warning.’” McCracken v. 
11

Commonwealth, 572 S.E.2d 493, 496 (Va. Ct. App. 2002) (quoting 

Fletcher v. Town of Clinton, 196 F.3d 41, 50 (1st Cir. 1999)). 

In McCracken, a case with facts vastly different than these, the 

court noted that Virginia Code section 19.2-81.3 created officer

duties. Id. at n. 4 (“In recognition of the difficulty of 

protecting against domestic violence, the General Assembly 

increased the duties of law-enforcement officers when responding 

to such incidents,” by enacting section 19.2-81.3). 

Therefore, as the officers’ entry into the bathroom was 

justified by the exigent circumstances, Randolph is 

distinguishable, and Virginia statutory law further supports the 

officers’ actions, we find that the officers did not violate 

Trull’s constitutional rights by entering the bathroom.

C.

Next, Trull argues that the district court erred in 

dismissing his claim that the officers violated his Fourth 

Amendment rights by using excessive force when they entered the 

bathroom. The Complaint alleged that the door hit his 

wheelchair “knocking Trull and his wheelchair violently across 

the bathroom and causing Trull so much shock and fright that he 

urinated upon himself and causing him to experience high blood 

pressure, shortness of breath and tightness in his chest.” 

Complaint ¶ 14, in Joint Appendix at 10. 
12

In Sigman v. Town of Chapel Hill, this court affirmed a 

grant of summary judgment in favor of an officer who was sued 

for fatally wounding the plaintiff. 161 F.3d 782, 784 (4th Cir. 

1998). The evidence presented as part of the motion for summary 

judgment was not totally clear as to whether the decedent was 

holding a knife. Id. at 787. The court rejected the assertion 

that difference in the witness testimony created a material 

issue of fact, because the focus is on what the officer 

reasonably perceived and whether his action was reasonable in 

light of those circumstances. Id. (“What matters is . . . 

whether they undertook an objectively reasonable investigation 

with respect to that information in light of the exigent 

circumstances they faced,” quoting Gooden v. Howard County, 954 

F.2d 960, 965 (4th Cir. 1992) (en banc) (emphasis added by the 

court)). The record is clear that Trull was shaken up by the 

events. In fact, the officers thought he should go to the 

hospital. However, given the circumstances, it was appropriate 

to force the door open to determine whether Trull was armed or 

dangerous. The force used was enough to startle Trull, but was 

mild enough that the door was not damaged in any way.

Therefore, based on the information known to the officers 

and in light of the exigent circumstances, they undertook an 

objectively reasonable course of action.
13

D.

In addition to the district court’s holding as to the 

constitutional claims, Trull also appeals the dismissal of his 

state law claim for trespass. We find that the district court 

properly dismissed that claim. 

Trespass is the “unauthorized entry onto property that 

results in interference with the property owner’s interest.” 

Cooper v. Horn, 448 S.E.2d 403, 406 (Va. 1994). Therefore, if 

the entry on the property was authorized by law, then the claim 

for trespass cannot be successful. As discussed above, the 

officers lawfully entered the house and lawfully entered the 

bathroom. 

E.

In addition to the claims against the officers, Appellant 

maintains that the County of Henrico is liable for its failure 

to train the police officers correctly. The district court 

dismissed Appellant’s claim seeking a declaratory judgment that 

the officers violated Trull’s rights under the Virginia 

Constitution. On appeal Appellant argues that the county is 

liable for a failure to train the officers. However, as the 

officers’ conduct did not violate any of Trull’s constitutional 

rights, his claim cannot be successfully maintained. 

In City of Canton, Ohio v. Harris, the Court held that 

under certain limited circumstances, a municipality could be 
14

held liable for a failure to train police. 489 U.S. 378, 388

(1989) (stating that “the inadequacy of police training may 

serve as the basis for § 1983 liability only where the failure 

to train amounts to deliberate indifference to the rights of 

persons with whom the police come into contact”). However, 

there must be a link between the inadequacy of the training and 

the deprivation of a constitutional right, because the “first 

inquiry in any case alleging municipal liability under § 1983 is 

the question whether there is a direct causal link between a 

municipal policy or custom and the alleged constitutional 

deprivation.” Id. at 385. Having determined that there was no 

deprivation of a constitutional right, this claim fails. 

IV.

A.

Appellant also appeals from the district court’s order 

granting summary judgment in favor of the Appellees. We review

a district court’s grant of summary judgment de novo. See PCS 

Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 217 (4th Cir. 

2009) (stating that “[w]e review the district court's rulings on 

summary judgment de novo”). 

In reviewing a district court’s grant of summary judgment 

de novo, we draw all reasonable inferences in favor of the 

appellant. See Doe v. Kidd, 501 F.3d 348, 353 (4th Cir. 2007), 
15

cert. denied 552 U.S. 1243 (2008) (“We review the district 

court's summary judgment ruling de novo, viewing the facts in 

the light most favorable to Doe as the non-moving party and 

drawing all reasonable inferences in her favor”) (internal 

citation omitted).

Summary judgment is appropriate “if the pleadings, the 

discovery and disclosure materials on file, and any affidavits 

show that there is no genuine issue as to any material fact and 

that the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c)(2)(2009). The moving party bears the 

burden of showing that there is no genuine issue of material 

fact and that he is entitled to judgment as a matter of law. 

Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); 

Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 

1979). In Charbonnages, the court stated the standard as 

follows:

the nonmoving party would on trial carry the burden of 

proof, he is therefore entitled . . . to have the 

credibility of his evidence as forecast assumed, his 

version of all that is in dispute accepted, all 

internal conflicts in it resolved favorably to him, 

the most favorable of possible alternative inferences 

from it drawn in his behalf; and finally, to be given 

the benefit of all favorable legal theories invoked by 

the evidence so considered.

Charbonnages, 597 F.2d at 414.
16

B.

Trull argues that the district court erred in granting 

summary judgment as to his claim that the officers violated his 

constitutional rights by having him come into the kitchen to 

continue the investigation, and also by their actions relating 

to the decision that he would go to the hospital. He claims 

summary judgment was inappropriate because genuine issues of 

material fact existed as to whether the officers’ actions 

resulted in an unconstitutional seizure.

In United States v. Mendenhall, the Supreme Court explained 

that a person is “seized” only when, by means of physical force 

or show of authority, his freedom of movement is restrained. 446 

U.S. 544, 553 (1980). Only when such restraint is imposed is 

there any foundation for invoking constitutional safeguards. Id.

The purpose of the Fourth Amendment is not to eliminate all 

contact between the police and the citizenry, but “to prevent 

arbitrary and oppressive interference by enforcement officials 

with the privacy and personal security of individuals.” Id. at 

554 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554

(1976)). “As long as the person to whom questions are put 

remains free to disregard the questions and walk away, there has 

been no intrusion upon that person's liberty or privacy as would 

under the Constitution require some particularized and objective 

justification.” Id. 
17

Appellees admit that a seizure occurred when the officers 

ordered Trull out of the bathroom and briefly detained him in 

the kitchen. However, the seizure was not unreasonable so it 

did not violate the Fourth Amendment’s protection from 

unreasonable seizure. The officers were investigating a

domestic situation and still searching for a gun. This brief 

seizure amounted to little more than initial questioning of the 

subject of a 911 call. Additionally, the seizure was justified 

by the exigent circumstances: the officers were in the middle of 

an investigation, Trull had been uncooperative, and they had not 

yet located the firearm. As such, the exigent circumstances 

justified this brief seizure. See Figg, 312 F.3d at 639. Thus,

we affirm because the brief seizure was reasonable.

Additionally, the district court correctly held that the 

seizure did not continue when Trull went to the hospital. The 

seizure ended when the questioning was completed and Trull was 

free to leave. The officers never told Trull that he had to go 

to the hospital. The EMS assisted him onto the stretcher. In 

fact, the record is devoid of any evidence tending to show that 

the officers forced Trull to go to the hospital by physical 

force or a showing of force. Therefore, the seizure did not 

continue in the ambulance, because a person is “seized” only 

when, by means of physical force or show of authority, his 

freedom of movement is restrained. Mendenhall, 446 U.S. at 553.
18

C.

We also affirm the district court’s order granting summary 

judgment as to the claims for assault and battery and false 

imprisonment. The assault and battery claim was properly 

disposed of at summary judgment, because the court correctly 

decided that the seizure was reasonable and did not violate the 

Fourth Amendment. The same is true of the claim for false 

imprisonment. See Dechene v. Smallwood, 311 S.E.2d 749, 752 

(Va. 1984) (stating that a lawful arrest by police cannot form 

the basis for assault and battery or false imprisonment claim). 

Therefore, we affirm summary judgment as to these state law 

claims.

V.

For the reasons above, we affirm the district court’s 

orders. Because we find that no constitutional violation 

occurred, we need not address qualified immunity.

AFFIRMED