Burrell v. Commonwealth of VA

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CHARLES DAVIS BURRELL, 
Plaintiff-Appellant,
v.
COMMONWEALTH OF VIRGINIA;
DEPARTMENT OF MOTOR VEHICLES;
JAMES E. JUNIUS; ASBURY W.
QUILLIAN; CHRIS JOHNSON, Police
Officer; R. M. ROGERS, Police
Officer; JOHN W. HALL, Police
Sergeant; SUE MATTHEW; CITY OF
RICHMOND POLICE DEPARTMENT;  No. 02-2347
GOVERNOR OF VIRGINIA, The
Honorable Mark Warner; BIRDIE H.
JAMISON, Judge,
Defendants-Appellees,
and
MUFEED SAID, Commonwealth
Attorney; VAUGHAN JONES,
Commonwealth Attorney,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-02-555-3)

Argued: October 28, 2004

Decided: January 27, 2005

Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.
2 BURRELL v. COMMONWEALTH OF VIRGINIA
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Motz and Judge Duncan joined.

COUNSEL

ARGUED: Hillary Jane Collyer, DIMURO, GINSBERG & MOOK,
P.C., Alexandria, Virginia, for Appellant. Vicki West Harris, Assis-
tant City Attorney, CITY ATTORNEY’S OFFICE, Richmond, Vir-
ginia, for Appellees. ON BRIEF: Bernard J. DiMuro, DIMURO,
GINSBERG & MOOK, P.C., Alexandria, Virginia, for Appellant.
Peter R. Messitt, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for State Appellees.

OPINION

LUTTIG, Circuit Judge:

Plaintiff-appellant Charles Davis Burrell filed a complaint in fed-
eral district court against numerous officials in the City of Richmond
and the Commonwealth of Virginia, alleging numerous claims arising
out of an automobile accident in which he was involved. He alleged,
inter alia, that city officials violated his Fifth Amendment right
against self-incrimination and his Fourth Amendment right against
unlawful seizure by summoning him to appear in court, after he
refused to provide evidence of automobile insurance at the scene of
the accident. The district court dismissed all of appellant’s claims, and
Burrell appeals, raising only his claims against the city in which he
alleges that his Fourth and Fifth Amendment rights were violated. For
the reasons that follow, we affirm.

I.

Appellant was in a traffic accident on February 19, 2002. J.A. 15.
The police officer on the scene, Officer Chris Johnson, requested that
Burrell produce documentation of automobile liability insurance for
his vehicle. Id. Burrell followed advice he had previously received
from an attorney and refused to answer the question, asserting his
 BURRELL v. COMMONWEALTH OF VIRGINIA 3
Fifth Amendment right against self-incrimination. Id. 15-16. Officer
Johnson told Burrell that he would be arrested for obstruction of jus-
tice if he continued to assert his Fifth Amendment privilege. Id. 15.

Officer Johnson called his supervisor, Sergeant John Hall, to the
scene, and Sergeant Hall repeated the warning that Burrell would be
arrested if he failed to cooperate by answering the questions. J.A. 16.
Burrell continued to assert his Fifth Amendment right. Id. As Burrell
was taken to the hospital to be treated for injuries sustained in the
accident, Officer Johnson served Burrell with a Confirmation of Lia-
bility form, which required that he furnish liability insurance informa-
tion to the Virginia Department of Motor Vehicles within thirty days.
He also served Burrell with two summonses for violation of the laws
of the Commonwealth of Virginia: one for operating an uninsured
motor vehicle without paying an uninsured motorist fee,1 and one for
obstruction of justice. J.A. 63, 66-67.

On March 27, 2002, a Virginia traffic court convicted Burrell of
obstructing justice, but dismissed the charge for failure to maintain
insurance. J.A. 55, 69. The obstruction of justice charge was dis-
missed on appeal. Id.

Burrell thereafter brought suit in federal district court against
numerous city and state defendants, seeking $10,000,000 in damages
for his emotional distress, emotional pain, inconvenience, mental
anguish, and reputation. He alleged that the defendants had violated
his rights under the Fifth Amendment by compelling him to produce
evidence of insurance, violated his rights by issuing a citation without
probable cause, violated the Due Process Clause and the Commerce
Clause, and that they were civilly liable to him under the Racketeer
Influenced and Corrupt Organizations Act (RICO). The district court
entered an order dismissing all claims for lack of subject matter juris-
diction, having announced in an oral decision that the suit was barred
under the Rooker-Feldman doctrine. The court also concluded in its
1
Virginia law does not require that drivers maintain liability insurance,
but does require that anyone who does not have insurance pay an unin-
sured motor vehicle fee of $500. See Virginia Code Ann. § 46.2-706, -
707. Failure to either pay the fee or obtain insurance is a Class 3 misde-
meanor. § 46.2-707
4 BURRELL v. COMMONWEALTH OF VIRGINIA
oral decision that the state defendants were protected by the Eleventh
Amendment, that the city defendants were protected by qualified
immunity, that Burrell failed to state a claim against any of the defen-
dants, and that his Fifth Amendment right had not been violated. J.A.
58-60. Burrell appealed.

II.

Before reaching the Fourth and Fifth Amendment claims, we must
address whether the district court correctly concluded that it lacked
jurisdiction over all of Burrell’s claims by virtue of the Rooker-
Feldman doctrine. J.A. 58-60. The district court held that "the argu-
ments that the plaintiff raises in this matter . . . are defenses that he
should have raised in state court." J.A. 59. We review the court’s dis-
missal pursuant to the Rooker-Feldman doctrine de novo. Shooting
Point v. Cumming, 368 F.3d 379, 383 (4th Cir. 2004).

The district court erred in its conclusion that the Rooker-Feldman
doctrine barred consideration of appellant’s claims. That doctrine
"precludes federal ‘review of adjudications of the state’s highest court
and also the decisions of its lower courts.’" Shooting Point, 368 F.3d
at 383 (quoting Jordahl v. Democratic Party, 122 F.3d 192, 199 (4th
Cir. 1997)). The federal lower courts are barred not only from recon-
sidering "issues actually decided by a state court" but also "those that
are ‘inextricably intertwined with questions ruled upon by a state
court.’" Id. (quoting Plyler v. Moore, 129 F.3d 728, 731 (4th Cir.
1997)). Burrell did not ask the court to reconsider any such issue. We
have recognized that a "‘party losing in state court is barred from
seeking what in substance would be appellate review of the state
judgment in a United States district court, based on the losing party’s
claim that the state judgment itself violates the loser’s federal rights.’"
Id. (quoting Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 199
(4th Cir. 2000)). Burrell obviously makes no such claim; instead, the
state court, in his view, correctly dismissed all charges against him.
Therefore, the concern addressed by Rooker-Feldman — that lower
federal courts will not act as courts of appeals from state courts — is
simply not present, and the doctrine does not bar federal court review
of Burrell’s claims.
 BURRELL v. COMMONWEALTH OF VIRGINIA 5
III.

Turning to the merits of Burrell’s section 1983 claim, Burrell chal-
lenges the district court’s holding that the defendants enjoyed quali-
fied immunity from his claims that the defendants violated (1) his
Fifth Amendment rights by demanding insurance and (2) his Fourth
Amendment rights by issuing two summonses without probable
cause. We review a district court’s denial of qualified immunity de
novo. Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir. 2001).

A.

Whether Burrell’s Fifth Amendment claim against the officers is
barred by qualified immunity is evaluated through a two-part inquiry.
First, this court must consider whether the facts alleged show that the
officer’s conduct violated a constitutional right; if so, we must con-
sider whether that constitutional right was clearly established. Saucier
v. Katz, 533 U.S. 194, 200-01 (2001). If the challenged conduct did
violate a clearly established constitutional right, qualified immunity
does not bar the suit. Id. at 200, 202. Burrell alleges that his refusal
to answer questions regarding his insurance was protected by his Fifth
Amendment right against self-incrimination, as incorporated against
the state by the Fourteenth Amendment. The district court rejected
this claim, and we agree, albeit on different reasoning.

The government relies on California v. Byers, 402 U.S. 424
(1971), to argue that the district court correctly determined that Bur-
rell had no Fifth Amendment right in this case.2 In Byers, a plurality
of the Supreme Court determined that a statute requiring that drivers
involved in accidents disclose their names and addresses did not vio-
late the Fifth Amendment, both because the identity-disclosure
requirement was insufficiently incriminating to outweigh the policies
2
The district court provided little analysis of the Fifth Amendment
claim, but it appears to have based its decision on a similar characteristic
to that found determinative in Byers — that the requirement that parties
produce insurance is part of a regulatory scheme. See J.A. 60 ("[T]he
plaintiff does not have a fifth amendment right to refuse to say whether
a vehicle he is driving is insured. A regulatory scheme may be based on
compelling self-reporting.").
6 BURRELL v. COMMONWEALTH OF VIRGINIA
in favor of the state’s interest in regulating accidents, and because dis-
closing one’s name and address was not testimonial in nature. Id. at
427-32.

Byers does not control the case sub judice. To conclude that the
disclosed information was insufficiently incriminating to outweigh
the state’s interest, the Byers Court relied on the fact that "it is not a
criminal offense in California law to be a driver ‘involved in an acci-
dent.’" Id. at 430. While not having insurance is not alone sufficient
to constitute a criminal offense in Virginia, not having insurance is a
criminal offense if the driver has not paid the uninsured motorist fee.
See Virginia Code Ann. § 46.2-707. Disclosure that one does not
maintain insurance therefore is more closely connected to a criminal
offense than was the mere involvement in an accident in Byers. Byers
explicitly left open the question of whether a state may be able to
compel further disclosure of information other than name and address.
Byers, 402 U.S. at 434 n.6 ("We are not called on to decide, but if the
dictum of the [United States v.] Sullivan opinion were followed, the
driver having stopped and identified himself, pursuant to the statute,
could decline to make any further statement."). Byers thus does not
resolve the question of whether the Fifth Amendment can be invoked
as justification for a refusal to produce insurance information in a
criminal case.

We need not decide whether to extend Byers here, however,
because Chavez v. Martinez, 538 U.S. 760 (2003), precludes a section
1983 suit in the circumstances of this case, regardless of whether the
Fifth Amendment would bar admission in court of insurance informa-
tion produced under compulsion. The plaintiff in Chavez was alleg-
edly coercively interrogated, but was never prosecuted based on that
interrogation. Chavez, 538 U.S. at 763-64. The Supreme Court held
that his section 1983 suit failed to state a claim, at least for a violation
of the Fifth Amendment.3 A four-member plurality of the Court con-
3
The Court left open on remand the question of whether the plaintiff
could pursue a claim for a violation of substantive due process. Chavez,
538 U.S. at 779-80 (Souter, J.). It is not clear whether Burrell’s claim of
a due process violation is intended to be a substantive due process viola-
tion; regardless, he neither alleges that the police behavior "shocks the
conscience" nor that it was "unusually coercive." See Chavez, 538 U.S.
at 787 (Souter, J.).
 BURRELL v. COMMONWEALTH OF VIRGINIA 7
cluded that "a violation of the constitutional right against self-
incrimination occurs only if one has been compelled to be a witness
against himself in a criminal case." Chavez, 538 U.S. at 770 (first
emphasis in original; second emphasis added). Justices Souter and
Breyer, though not joining the plurality, agreed that "the text of the
Fifth Amendment (applied here under the doctrine of Fourteenth
Amendment incorporation) focuses on courtroom use of a criminal
defendant’s compelled, self-incriminating testimony, and the core of
the guarantee against compelled self-incrimination is the exclusion of
such evidence." Id. at 777 (Souter, J.) (emphasis added).4

The Chavez plurality, therefore, refused to allow a section 1983
suit to proceed, on the ground that no constitutional violation had
occurred, since the compelled testimony was never admitted in court,
noting that "violations of judicially crafted prophylactic rules do not
violate the constitutional rights of any person." Id. at 772. Justices
Souter and Breyer also refused to allow a section 1983 claim under
the Fifth Amendment to proceed in Chavez. They held that a "power-
ful showing" was required to adopt a new prophylactic rule in support
of the Fifth Amendment, namely the attachment of civil liability to
police interrogations; such a rule must be "necessary in aid of the
basic guarantee." Id. at 778-79 (Souter, J.).

On the reasoning of either the Chavez plurality or Justice Souter’s
concurrence in the judgment, Burrell’s Fifth Amendment section
1983 claim fails to state a claim. He does not allege any trial action
that violated his Fifth Amendment rights; thus, ipso facto, his claim
fails on the plurality’s reasoning. And he has done nothing to make
the "powerful showing" of the necessity of a section 1983 suit which
Justices Souter and Breyer would require; like the plaintiff in Chavez,
Burrell has "offered no reason to believe that the guarantee has been
ineffective in all or many of those circumstances in which its vindica-
4
Unlike in Chavez, criminal charges were ultimately brought against
Burrell. The record does not disclose whether the prosecution attempted
to introduce evidence of Burrell’s failure to respond at the trial for
obstruction of justice or whether such evidence was in fact admitted. At
oral argument, Burrell’s counsel affirmed in response to the court’s ques-
tion that Burrell only claims that his constitutional rights were violated
at the time the summonses were issued, not at the time of trial.
8 BURRELL v. COMMONWEALTH OF VIRGINIA
tion has depended on excluding testimonial admissions or barring
penalties." Id. at 779.

Because Burrell has failed to allege the violation of any constitu-
tional right, qualified immunity attaches to the city officials and the
claim is dismissed. Burrell’s claim that the city caused the constitu-
tional violation by having a policy permitting its officers to question
motorists about their liability insurance and issue them citations if
they do not provide the requested information fails necessarily, as we
find no constitutional violation.

B.

Burrell also alleges that the police lacked probable cause to issue
him summonses for failure to have insurance and for obstruction of
justice. J.A. 18. On appeal, he urges that we treat this claim, which
is arguably a malicious prosecution claim, as a Fourth Amendment
claim for unlawful seizure; we have held that a "malicious prosecu-
tion claim under § 1983 is properly understood as a Fourth Amend-
ment claim for unreasonable seizure which incorporates certain
elements of the common law tort." Lambert v. Williams, 223 F.3d
257, 261 (4th Cir. 2000). In order for a plaintiff to state a section 1983
malicious prosecution claim for a seizure violative of the Fourth
Amendment, we have required that the defendant have "seized [plain-
tiff] pursuant to legal process that was not supported by probable
cause and that the criminal proceedings [have] terminated in [plain-
tiff’s] favor." Brooks v. City of Winston-Salem, 85 F.3d 178, 183-84
(4th Cir. 1996).5

The criminal proceeding against Burrell clearly terminated in his
favor. Burrell alleges there was also a lack of probable cause to sup-
port the prosecution on each of the two charges.6 "An officer has
5
Although malice is required to state a claim for malicious prosecution
at common law, the reasonableness of a seizure under the Fourth Amend-
ment should be analyzed objectively. Brooks, 85 F.3d at 184 n.5 (citing
Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
6
Whether a summons constitutes a seizure for Fourth Amendment pur-
poses is not clear. See Britton v. Maloney, 196 F.3d 24, 30 (1st Cir.
 BURRELL v. COMMONWEALTH OF VIRGINIA 9
probable cause for arrest when the facts and circumstances within the
officer’s knowledge . . . are sufficient to warrant a prudent person, or
one of reasonable caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about to commit
an offense." Wilson v. Kittoe, 337 F.3d 392, 398 (4th Cir. 2003)
(internal quotation marks omitted).

As to the charge for not maintaining liability insurance, Burrell
argues that the only basis on which the police could have drawn the
conclusion that he did not have insurance, and thus that he was com-
mitting a crime, was his refusal to produce evidence of insurance. He
contends that his refusal to produce evidence of insurance, however,
was an impermissible basis upon which to draw the adverse inference
that he lacked insurance, because his refusal was protected by the
Fifth Amendment. But the authority appellant cites does not support
Burrell’s contention. That authority merely establishes the impermis-
sibility of drawing negative inferences from a defendant’s refusal to
testify at trial. See Griffin v. California, 380 U.S. 609, 615 (1965)
("[T]he Fifth Amendment, in its direct application to the Federal Gov-
ernment, and in its bearing on the States by reason of the Fourteenth
Amendment, forbids either comment by the prosecution on the
accused’s silence or instructions by the court that such silence is evi-
dence of guilt."). However, because the requirement that Burrell
respond did not constitute a violation of the Fifth Amendment itself,
see supra Part III.A, an adverse inference drawn from the refusal to
respond is permissible. Cf. Chavez, 538 U.S. at 768-69 ("We have
also recognized that governments may penalize public employees and
government contractors . . . to induce them to respond to inquiries, so
long as the answers elicited (and their fruits) are immunized from use

1999) ("Absent any evidence that [plaintiff] was arrested, detained,
restricted in his travel, or otherwise subject to a deprivation of his liberty
before the charges against him were dismissed, the fact that he was given
a date to appear in court is insufficient to establish a seizure within the
meaning of the Fourth Amendment."). However, we need not reach this
question, because the officers possessed probable cause to issue the sum-
mons. See Dorman v. Castro, 347 F.3d 409, 411 (2nd Cir. 2003) (refus-
ing to reach the question of whether an issuance of appearance tickets
was a seizure when the existence of probable cause was evident).
10 BURRELL v. COMMONWEALTH OF VIRGINIA
in any criminal case against the speaker . . . . By contrast, no ‘penalty’
may ever be imposed on someone who exercises his core Fifth
Amendment right not to be a ‘witness’ against himself in a ‘criminal
case.’"). Even if a refusal to provide insurance information in a crimi-
nal case is protected by the Fifth Amendment (a question we do not
reach), Burrell’s refusal outside the context of a criminal trial was not
an exercise of his "core Fifth Amendment right."7 Id. Burrell’s refusal
therefore was properly considered by the officers as evidence that he
neither had insurance nor had paid the uninsured motorist fee that
would render the failure to have insurance permissible.

Burrell also alleges the government lacked probable cause to issue
him a citation for obstructing justice because his actions did not meet
the statutory requirements of that offense. He urges that, under Vir-
ginia law, "a person must do more than merely render an arrest more
difficult or inconvenient than it might otherwise have been — by, for
example, speaking to an officer as he works — in order to be crimi-
nally liable." Wilson v. Kittoe, 337 F.3d 392, 399 (4th Cir. 2003) (cit-
ing Ruckman v. Commonwealth, 505 S.E.2d 388, 389 (Va. Ct. App.
1998)). In Wilson, however, the arrested party was merely speaking
to the officers and requesting to speak to the man whom they were
arresting, and was not "attempting to prevent [the officer] from carry-
ing out the arrest." Id. at 399-400. In contrast, Burrell was directly
attempting to prevent the officer from carrying out his duty under Vir-
ginia law, which is to provide, within 24 hours, a written report,
including insurance information of the parties, of any accident involv-
ing injury. Va. Code Ann. § 46.2-373(A). The officer thus had proba-
ble cause to issue him a summons for obstruction of justice.
7
Appellant relies heavily on Kastigar v. United States, 406 U.S. 441
(1972), for the principle that the Fifth Amendment privilege is available
outside the context of criminal proceedings. However, the plurality in
Chavez makes clear that Kastigar only establishes the "evidentiary privi-
lege that protects witnesses from being forced to give incriminating testi-
mony, even in noncriminal cases, unless that testimony has been
immunized from use and derivative use in a future criminal proceeding
before it is compelled." Chavez, 538 U.S. at 770-71. This privilege acts
to preserve the core Fifth Amendment right, but is not itself a Fifth
Amendment right. Id. at 771; see id. at 772 ("Rules designed to safeguard
a constitutional right, however, do not extend the scope of the constitu-
tional right itself . . . .").
 BURRELL v. COMMONWEALTH OF VIRGINIA 11
Because the officers had probable cause to issue the summonses on
each of the charges, the facts alleged do not establish a violation of
the Fourth Amendment’s prohibition on unreasonable seizure.
Accordingly, as to this claim, the officers are entitled to qualified
immunity.

CONCLUSION

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED