USCA4 Appeal: 21-1960 Doc: 41 Filed: 02/22/2024 Pg: 1 of 25
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1960
BIKACHI AMISI,
Plaintiff – Appellee,
v.
LAKEYTA BROOKS,
Defendant – Appellant,
and
BRYAN BROWN; ROY TOWNSEND, JR.,
Defendants.
No. 21-1962
ROY TOWNSEND, JR.,
BRYAN BROWN; LAKEYTA BROOKS, USCA4 Appeal: 21-1960 Doc: 41 Filed: 02/22/2024 Pg: 2 of 25
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. David J. Novak, District Judge. (3:20−cv−00218−DJN)
Argued: September 22, 2023 Decided: February 22, 2024
Before DIAZ, Chief Judge, and AGEE and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Agee and Judge Harris joined.
ARGUED: Carlene Booth Johnson, PERRY LAW FIRM, PC, Dillwyn, Virginia; Alexander Francuzenko, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellants. Danny Zemel, THE KRUDYS LAW FIRM, Richmond, Virginia, for Appellee. ON BRIEF: Thea A. Paolini, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Lakeyta Brooks. Mark J. Krudys, THE KRUDYS LAW FIRM, Richmond, Virginia, for Appellee.
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DIAZ, Chief Judge:
When Bikachi Amisi arrived at Riverside Regional Jail for her first day as a contract
jail nurse, Officer Lakeyta Brooks mistook her for an inmate and strip searched her. Amisi
sued Brooks and two other jail employees under 42 U.S.C. § 1983 for violating her Fourth
Amendment rights. She also brought several tort claims under Virginia state law.
The district court denied the defendants’ motions for summary judgment. It held
that Brooks and her supervisor, Officer Roy Townsend, were entitled to neither qualified
immunity nor good-faith immunity under Virginia law. It also held that the Virginia
Workers’ Compensation Act’s exclusivity provision didn’t bar the defendants from suit.
Finding no error, we affirm.
I.
A.
Though the parties agree on some basic facts, most of the material facts are disputed.
Everyone agrees that when Amisi arrived at the jail, she didn’t know where to go for her
nurse orientation. While in the parking lot, Amisi found Sergeant Bryan Brown and asked
for help. She wore scrubs and carried a water bottle and her lunch.
Brown directed Amisi to enter the back door of the jail’s Pre-Release Center, which
houses “weekender” inmates serving non-consecutive sentences. When weekenders arrive
at the Center, they have “orientation” and complete the jail’s intake process, including strip
and pat-down searches. The Center takes weekenders’ personal property, disposing of or
storing it as appropriate.
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The back door of the Center serves as the inmate intake entrance. It has two locked
doors with a sallyport in between. The outer door is operated by the Primary Control
Officer, a role Brown then held. The inner door is operated by the Intake Officer, who’s
stationed in the intake area, just inside the inner door. Amisi rang the buzzer, entered
through both doors, and met Intake Officer Roy Townsend. Townsend told Amisi to take
a seat in the Intake Area.
Before taking custody of a weekender, Pre-Release Center staff must verify that the
inmate is legally committed to the facility. The Center’s then-Weekend Coordinator,
Nichole Roney, prepared files for the weekenders expected to attend orientation on each
day. But sometimes inmates showed up on the wrong day, or their paperwork was slow to
arrive from the court. Roney tried to accommodate these individuals by letting them
participate in orientation even when they weren’t scheduled.
Townsend didn’t have a file for Amisi. He called Roney, who also didn’t have
paperwork for her. Roney told Townsend she would come speak with Amisi.
While Amisi was waiting, Brooks entered the intake area, having just searched an
incoming inmate. Brooks directed Amisi to follow her into the women’s locker room, and
Amisi did. While in the locker room, Brooks and Amisi discussed Amisi’s food and water
bottle, and Brooks told Amisi to throw away her food. Brooks also strip searched Amisi
and conducted a pat-down search after she re-dressed. Amisi then returned to the intake
area.
Eventually, Roney arrived, learned Amisi worked for the jail’s health contractor,
and called a nurse who told her Amisi should be in the main jail for nurse orientation. The
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nurse retrieved Amisi from the Pre-Release Center, and Amisi completed her eight-week
contract.
The rest of the facts are disputed, both between Amisi and the defendants, and
between the defendants themselves.
First, the parties dispute what happened before Brooks took Amisi to the locker
room. Townsend claims he asked Amisi multiple times to confirm that she was at the
Center for weekender orientation. He says he asked her to sit while he verified that she
should be there and then began reviewing his files and calling Roney. Townsend says he
didn’t see Brooks take Amisi to the locker room and only realized Amisi was missing the
next time he looked up.
Amisi meanwhile insists that when she arrived in the intake area, she told Townsend
she “was a nurse” and it was her “first day to work there.” Amisi v. Riverside Reg’l Jail
Auth., 555 F. Supp. 3d 244, 255 (E.D. Va. 2021). She also says she told him it was her
“orientation day,” and that she had “an appointment.” Id. Amisi agrees Townsend asked
her to wait. But he didn’t explain that he would try to verify she was in the right place, and
she claims she never saw Townsend on the phone. Amisi says that Brooks spoke to
Townsend, and Townsend pointed at her before Brooks took her to the locker room.
Brooks then asked Amisi to follow her to the locker room without confirming Amisi was
a weekender.
Complicating the picture, Brooks claims she asked both Amisi and Townsend if
Amisi was there for weekender orientation and both responded affirmatively. Brooks says
Townsend also gestured to Amisi and said, “The weekender for orientation is sitting on the
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bench.” Id. And Townsend was “right there” when Brooks took Amisi to the locker room
and never asked Brooks to wait. Id.
The parties also dispute what happened after Brooks took Amisi into the locker
room. Brooks claims that she confirmed with Amisi she was a weekender. Brooks then
asked Amisi, “How many weekends she was doing?” and Amisi said eight. Id. Brooks
admits Amisi asked whether nurses had to be strip searched, but claims she told Amisi in
response that “we have all type of people that work here that do weekend time.” 1 J.A. 757.
Brooks and Townsend dispute the content of a conversation they had during the
search. Townsend says Brooks left the locker room to ask whether the Center held food
for inmates and whether they could hold a water bottle “for somebody.” Amisi, 555 F.
Supp. 3d at 255. Townsend says he didn’t know who Brooks was talking about and
couldn’t see or hear what was happening in the locker room. Brooks, however, claims that
she asked Townsend if Amisi could keep her food, Townsend said no, and then Townsend
took Amisi’s water bottle to the intake desk.
Amisi describes her interaction with Brooks differently. She says she complied with
Brooks’s order to follow her and did so because she thought they were going to her nurse
orientation. Amisi also recounts a more detailed conversation about her lunch. She claims
she asked Brooks why she couldn’t bring food as she would “be working for 12 hours” and
Brooks’s statement makes no sense—she likely meant that it was common for 1
working people to serve time as weekenders, regardless of their professions.
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then suggested, “Maybe I can keep it and at the end of the day when I leave, I can take it
home with me.” Id. at 256. She expressed surprise that the jail would be feeding her.
Amisi also asserts that she specifically asked about searching employees. She
claims, for example, that when Brooks told her to remove her clothes she said, “Why should
I take my clothes off?” Id. She questioned whether they had “to search people who work
here.” Id. And she told Brooks she was a nurse and would “be working” at the jail, before
asking, “[E]very day I come here, I have to take my clothes off?” Id.
Amisi says that before the search, she asked Brooks whether she could call her
staffing agency, saying she wouldn’t have accepted the job had she known about the strip
search policy. But Brooks wouldn’t let her, reiterating that she needed to undress.
Other jail employees testified that Brooks was required under jail policy to ensure
Amisi was there for weekender orientation before searching her.
B.
Amisi sued Brooks, Townsend, and Brown, alleging that they violated her Fourth
Amendment right to be free from unreasonable searches and seizures. She also brought a
variety of Virginia state law tort claims.
The defendants moved for summary judgment, challenging Amisi’s claims on the
merits and asserting qualified immunity and Virginia good-faith immunity. They also
asserted that the Virginia Workers’ Compensation Act barred Amisi’s state-law claims.
The district court denied their motions on all grounds.
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This appeal followed. 2
II.
Brooks and Townsend first argue that the district court erred in denying them
qualified immunity on Amisi’s § 1983 claim. We disagree.
“Qualified immunity protects officers who commit constitutional violations but
who, in light of clearly established law, could reasonably believe that their actions were
lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc) (cleaned up). We
may immediately review a district court’s summary judgment denial of qualified immunity
since qualified immunity “is effectively lost if a case is erroneously permitted to go to
trial.” Hulbert v. Pope, 70 F.4th 726, 732 (4th Cir. 2023) (first citing Williams v.
Strickland, 917 F.3d 763, 767 (4th Cir. 2019); and then citing Mitchell v. Forsyth, 472 U.S.
511, 526 (1985)).
Our review is limited though, so we can’t consider Brooks’s and Townsend’s
challenges to the district court’s view of the facts. See Mitchell, 472 U.S. at 528. But we
may still decide whether Brooks and Townsend are entitled to qualified immunity,
“considering the facts as the district court viewed them as well as any additional undisputed
facts.” Danser v. Stansberry, 772 F.3d 340, 345 (4th Cir. 2014). We review the district
court’s denial of qualified immunity de novo. Putman v. Harris, 66 F.4th 181, 186 (4th
Cir. 2023).
2 Brown isn’t a party to this appeal.
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To defeat qualified immunity, Amisi must show that (1) the officer violated one of
her constitutional rights, and (2) the “right at issue [was] clearly established.” Thompson
v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (cleaned up). If Amisi fails at either prong,
Brooks and Townsend are entitled to summary judgment.
As did the district court, we address Brooks’s and Townsend’s qualified immunity
defenses separately.
Brooks argues that a reasonable officer in her position wouldn’t have understood
that seizing and strip searching Amisi violated her Fourth Amendment rights. 3 Brooks
contends she wasn’t on notice that she was violating Amisi’s rights because she believed
Amisi was an inmate and inmate strip searches are constitutional if conducted reasonably.
And regardless, Brooks says, Amisi’s right to be free from strip searches wasn’t clearly
established.
1.
We begin with the alleged constitutional violation. For that, we must determine
whether the strip search was unreasonable. When “analyzing the reasonableness of a
physically intrusive search, we must balance the government’s need for the particular
search against the invasion of personal rights.” Leverette v. Bell, 247 F.3d 160, 166 (4th
Cir. 2001) (cleaned up).
3 Unlike Townsend, Brooks doesn’t distinguish the reasonableness of the search with the reasonableness of the seizure, so we’ll consider them in tandem.
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The calculus differs for prison employees, who have a diminished expectation of
privacy by nature of their employment. Id. at 168. But employees don’t abandon their
Fourth Amendment rights when they enter the prison gate. We’ve held that a body cavity
or strip search of a prison employee is reasonable only if officials have “reasonable and
individualized suspicion” the employee is carrying contraband. Id.; see also Braun v.
Maynard, 652 F.3d 557, 561 (4th Cir. 2011).
Brooks doesn’t suggest that she suspected Amisi of having contraband. Instead, she
argues the prison-employee cases “are inapposite” because they “ignor[e] the central issue
of this case—that Amisi was not a known employee, but an employee mistaken for an
inmate.” Appellants’ Br. at 34. Thus, says Brooks, we should look to the caselaw
involving inmates rather than employees. See id. at 32. And she points out that the
Supreme Court hasn’t required individualized suspicion for strip searches involving
inmates. Id.; see Bell v. Wolfish, 441 U.S. 520, 560 (1979).
But it doesn’t matter whether Brooks subjectively believed that Amisi was an
inmate if her belief was objectively unreasonable. See Kentucky v. King, 563 U.S. 452,
464 (2011) (“Our [Fourth Amendment] cases have repeatedly rejected a subjective
approach, asking only whether the circumstances, viewed objectively, justify the action.”
(cleaned up)). Just as we decline to grant qualified immunity when officers make
unreasonable mistakes of law, so too with unreasonable mistakes of fact. See Henry, 652
F.3d at 531–33.
In Henry, for example, an officer shot a fleeing suspected misdemeanant who he
had no grounds to believe was armed or dangerous. 652 F.3d at 532. On its face, that
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seizure was unreasonable. See id. at 531–32 (“A police officer who shoots a fleeing suspect
without ‘probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others’ violates that suspect’s Fourth Amendment
rights.” (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)). But the parties stipulated that
the officer believed he was firing his taser, not his gun.
We held that the officer’s belief he was holding his taser wasn’t objectively
reasonable, since the gun was heavier, was holstered on a different part of the officer’s
body, and had a thumb safety. Id. at 532–33. Because the officer’s mistake of fact was
unreasonable, and because it was clearly established that an officer couldn’t shoot a fleeing,
nonthreatening misdemeanant, we reversed the district court’s grant of qualified immunity.
Id. at 536.
Likewise, the record here supports a finding that Brooks’s mistake was
unreasonable, drawing all inferences in Amisi’s favor (as we do at the summary judgment
stage). See id.
Amisi told Brooks she was a nurse and asked if employees of the jail needed to be
strip searched. She asked if she could call her staffing agency before proceeding with the
search, and expressed surprise to Brooks both that she needed to throw away her lunch and
that the jail would be feeding her. While Brooks disputes these facts, that’s for a jury to
decide, not us. We decide only whether those facts are material, which they are.
As the district court said, the accuracy of Amisi’s account “proves nearly dispositive
as to the issue of the reasonableness of Brooks’[s] belief.” Amisi, 555 F. Supp. 3d at 271.
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Taking Amisi’s account as true, Brooks acted unreasonably when she mistook Amisi for
an inmate, not an employee.
2.
Still, even if Brooks violated Amisi’s Fourth Amendment rights, Brooks is
nonetheless entitled to summary judgment if those rights weren’t clearly established. “A
clearly established right is one that is ‘sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7,
11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
We look to the “decisions of the Supreme Court, this court of appeals, and the
highest court of the state in which the case arose to determine whether a reasonable officer
would know that his conduct was unlawful in the situation he confronted.” Yates v. Terry,
817 F.3d 877, 887 (4th Cir. 2016) (internal citations omitted). These cases “must have
placed the . . . constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011) (cleaned up). But a right doesn’t necessarily need to have been “recognized by
a court in a specific context” to be clearly established. Meyers v. Baltimore County., 713
F.3d 723, 734 (4th Cir. 2013).
Here, it was clearly established when Brooks strip searched Amisi (a prison
employee) that she couldn’t do so without individualized suspicion that Amisi possessed
contraband. See Leverette, 247 F.3d at 168; Braun, 652 F.3d at 557. Brooks claims that
our cases are distinguishable because Amisi wasn’t a “known prison employee[]”; thus she
wasn’t on notice that searching Amisi would violate her rights. Appellants’ Reply Br. at
20. But that’s immaterial because Brooks’s mistake was unreasonable.
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Returning to Henry, the officer claimed that, even if he unreasonably believed he
fired his taser, it wasn’t clearly established that an officer violates the Constitution when
he mistakenly shoots his gun at a nonviolent misdemeanant. 652 F.3d at 534. We rejected
that argument because the officer’s subjective beliefs and intentions “have no place in our
constitutional analysis.” Id. A “reasonable officer” would have known that the shot
violated the suspect’s rights. Id.
So too here. We must determine only whether a reasonable officer would have
known that Amisi was an employee, not an inmate. As we’ve explained, a reasonable
officer would. And a reasonable officer would have been on notice that strip searching
Amisi, an employee, without individualized suspicion violated her Fourth Amendment
rights.
Taking the facts in the light most favorable to Amisi, the record supports a finding
that Brooks violated her clearly established rights. Accordingly, the district court properly
denied Brooks qualified immunity.
Unlike Brooks, Townsend doesn’t concede that he seized or searched Amisi. But
even if he did, he argues that the theory of liability asserted against him for each claim
wasn’t clearly established. We disagree, so we likewise affirm the district court.
We’ll begin with the seizure claim against Townsend. A seizure occurs when, under
the totality of the circumstances, the officer’s “conduct would have communicated to a
reasonable person that he was not at liberty to ignore the [officer’s] presence and go about
his business.” United States v. Bowman, 884 F.3d 200, 211 (4th Cir. 2018) (cleaned up).
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In conducting this analysis, we consider “the time, place, and purpose” of the
encounter. Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 461 (4th Cir. 2013)
(cleaned up). We also look to the number of officers, whether they were in uniform or
displayed weapons, whether they touched the person or tried to block or restrain their
movement, and whether they acted as if they suspected the person of illegal activity. Id.
Amisi willingly entered the jail. And Townsend is correct that a “consensual
encounter” isn’t a seizure within the meaning of the Fourth Amendment. Id. at 460
(cleaned up). But even so, the record could still support a finding that Townsend seized
her later.
Townsend directed Amisi to sit down in the secured intake area, which she couldn’t
leave without the help of another officer. And when Brooks approached, Townsend
pointed at Amisi, and Brooks immediately took her into the locker room. True, Amisi
never tried to leave the intake area, and Townsend never physically restrained her. But the
record supports a finding that Townsend’s actions would have led a reasonable person to
believe that she wasn’t free to leave.
Moreover, it’s undisputed that Brooks refused to let Amisi leave to call her agency
when she asked. And Brooks gave Townsend Amisi’s lunch and water bottle from the
locker room. As the district court explained, Townsend waited outside during the search.
He presumably understood that Brooks was strip searching Amisi in the locker room, as
she did with other female inmates, so he knew Amisi wasn’t free to leave.
Like Brooks, Townsend argues that his mistake about Amisi’s status entitles him to
qualified immunity, as in Turner v. Kight, 121 F. App’x 9 (4th Cir. 2015) (per curiam). In
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Turner, we held that the district court correctly granted qualified immunity to a corrections
officer who mistakenly subjected the plaintiff, a temporary detainee, to a strip search. Id.
at 16. We held that the officer’s “mere negligence or carelessness” didn’t constitute a
constitutional violation, even though the officer failed to confirm the plaintiff’s status
before searching her. Id. In other words, the officer’s mistake was reasonable. Id.
Turner thus concerns reasonable mistakes, while the record here suggests the
opposite. Amisi says that she told Townsend she was an employee reporting for work.
And Townsend didn’t see Amisi’s name on his list of weekender inmates, nor could Roney
confirm that Amisi was a weekender. These facts (if proven) suggest that Townsend’s
mistaken belief was unreasonable.
Taking the facts in the light most favorable to Amisi, Townsend may also be liable
for causing Amisi to be unreasonably searched. Section 1983 creates liability not just for
a state actor who directly deprives a plaintiff of her rights, but one who “causes” such a
deprivation. 42 U.S.C. § 1983. We’ve recognized this “effective causation” liability
theory in several cases. See Sales v. Grant, 158 F.3d 768, 776 (4th Cir. 1998); Raub v.
Campbell, 785 F.3d 876, 881 n.6 (4th Cir. 2015); Meeker v. Edmundson, 415 F.3d 317,
322–23 (4th Cir. 2005); see also Malley v. Briggs, 475 U.S. 335, 337 (1986) (recognizing
that an officer who submits a search warrant affidavit without reasonable grounds for
probable cause can be liable under § 1983, even if he doesn’t personally make the unlawful
arrest).
Under this theory, an officer is liable if he “is the effective cause of another’s direct
infliction of the constitutional injury.” Sales, 158 F.3d at 776. The “requisite causal
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connection can be established . . . by setting in motion a series of acts by others which the
actors know or reasonably should know would cause others to inflict the constitutional
injury.” Id. (quoting Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 560–61 (1st Cir.
1989)).
We’ve previously said that this doctrine doesn’t apply in one context: excessive
force. See Gandy v. Robey, 520 F. App’x 134, 142 (4th Cir. 2013) (finding the effective
causation theory “highly dubious” in the excessive force context). Townsend argues that
Gandy also limits the effective causation theory in the broader Fourth Amendment context,
but we can’t agree.
In Gandy, we recognized that for excessive force claims, we look to the “moment”
the force is employed, where an officer’s actions to “set in motion” the use of force
beforehand wouldn’t be relevant. See 520 F. App’x at 142. But that holding is unique to
excessive force. For a suspicion-less search, unlike excessive force, the officers’ actions
before the offending conduct are no doubt relevant. And were we to extend Gandy to the
entire Fourth Amendment context, we would read the causation language out of § 1983.
Turning back to the record, Townsend set Brooks’s unreasonable search in motion.
As the district court found, Townsend pointed at Amisi and signaled to Brooks to take her
into the locker room. And he knew that Brooks performed strip searches of incoming
inmates in that locker room. Given these facts, a jury could find that Townsend either
knew or “reasonably should” have known that his actions would cause Brooks to
unreasonably search Amisi. See Sales, 158 F.3d at 776.
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What’s more, Amisi’s right to be free from unreasonable strip searches was clearly
established when Townsend set the search in motion. To repeat, we’ve recognized that an
officer may subject a prison employee to a body cavity search if he has reasonable
suspicion the employee possesses contraband, and it’s undisputed that Townsend had no
such suspicion. See Leverette, 247 F.3d at 168; Braun, 652 F.3d at 557. And again, unlike
in Turner, a jury could find that Townsend’s belief that Amisi was an inmate was
unreasonable.
In sum, because a reasonable officer would have been on notice that the strip search
he caused would violate Amisi’s constitutional rights, Townsend isn’t entitled to qualified
immunity.
III.
Brooks and Townsend next argue that the exclusivity provision of the Virginia
Workers’ Compensation Act bars Amisi’s state-law claims. We disagree.
The Virginia Workers’ Compensation Act provides a remedy for injuries resulting
“from an accident arising out of and in the course of the injured employee’s employment.”
Simms v. Ruby Tuesday, Inc., 704 S.E.2d 359, 362 (Va. 2011) (citing Va. Code Ann. §
65.2-101). When the Act applies, it “provides the sole and exclusive remedy available
against the employer,” Butler v. S. States Co-op., Inc., 620 S.E.2d 768, 772 (Va. 2005), as
well as the injured employee’s coworkers, see Pfeifer v. Krauss Constr. Co., 546 S.E.2d
717, 719 (2001). See also Va. Code Ann. § 65.2-307(A).
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Before turning to the merits, we must decide whether we may consider defendants’
argument in this interlocutory appeal. Amisi urges us not to, arguing that we lack
jurisdiction to consider it now.
Ordinarily, our jurisdiction is limited to final decisions of the district court, so we
would generally lack jurisdiction to review a denial of summary judgment. Williams v.
Strickland, 917 F.3d 763, 767 (4th Cir. 2019). But the “collateral order doctrine” extends
our jurisdiction to “a small class of collateral rulings” that are considered final even though
they don’t end the litigation. Davis v. City of Greensboro, 770 F.3d 278, 281 (4th Cir.
2014) (cleaned up). This doctrine covers “only decisions that are conclusive, that resolve
important questions separate from the merits, and that are effectively unreviewable on
appeal from the final judgment in the underlying action.” Id. (cleaned up).
Decisions denying immunity are often immediately appealable collateral orders.
Nero v. Mosby, 890 F.3d 106, 121 (4th Cir. 2018) (exercising jurisdiction over denial of
absolute prosecutorial immunity and Maryland statutory immunity); Mitchell v. Forsyth,
472 U.S. 511, 530 (1985) (federal qualified immunity); Nixon v. Fitzgerald, 457 U.S. 731,
742–43 (1982) (federal absolute immunity). Yet “only a claimed immunity from suit, not
a mere defense to liability,” falls under the exception. Nero, 890 F.3d at 121 (cleaned up).
The exclusivity provision in the Virginia Workers’ Compensation Act provides total
immunity from suit. The Act gives workers “the right to assert no-fault liability against
their employers” in exchange for giving up “the right to sue their employers in tort . . . a
right that they had possessed under the common law.” Lopez v. Intercept Youth Servs.,
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Inc., 861 S.E.2d 392, 394 (Va. 2021); see also Gibbs v. Newport News Shipbuilding &
Drydock Co., 733 S.E.2d 648, 652 (Va. 2012) (The Act provides “no-fault compensation
for workers in exchange for immunity for employers from actions at common law.”
(emphasis added)); Whalen v. Dean Steel Erection Co., 327 S.E.2d 102, 106 (Va. 1985)
(“[T]he law relieves the employer of exposure to actions at law from employees sustaining
such injuries.” (emphasis added)). Since Virginia law treats the exclusivity provision as
conferring immunity from suit, the denial of summary judgment on this claim is a collateral
order that we may review.
Amisi’s counterarguments are unavailing. She points to decisions from the
Supreme Court of Virginia describing the Act’s exclusivity provision as an “interlocutory”
issue that isn’t immediately appealable. See Appellee’s Br. at 31–32 (collecting cases).
From this, Amisi infers that Virginia law views the exclusivity provision as conferring
immunity from liability, not suit. Cf. Black v. Dixie Consumer Prod., 835 F.3d 579, 583
(6th Cir. 2016) (holding that Kentucky treated workers compensation exclusivity provision
as an immunity from suit “by permitting interlocutory appeals from the denial of [that]
immunity”).
But that argument ignores Virginia’s unique appellate landscape. Unlike in the
federal system, Virginia doesn’t allow interlocutory appeals as of right of any immunity
from suit—including legislative or even sovereign immunity. See Payne v. City of
Charlottesville, 102 Va. Cir. 399C, 2019 WL 11838789, at *8 n.8 (Va. Cir. Ct. 2019)
(encouraging defendants to file an interlocutory appeal of denial of legislative immunity
under permissive appeal statute), rev’d, 856 S.E.2d 203 (Va. 2021); Commonwealth v.
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Muwahhid, 887 S.E.2d 801, 803 n.1 (Va. Ct. App. 2023) (describing how the Virginia
Legislature passed a law making sovereign immunity immediately appealable in 2022, but
then repealed the law six months later). Instead, the Court of Appeals may only hear an
interlocutory appeal of a general civil matter if it fulfills certain statutory requirements.
Va. Code Ann. § 8.01-675.5 (West). And even then, the Court of Appeals retains discretion
over whether it will entertain the interlocutory appeal. Id.
If Virginia permitted interlocutory appeals of other immunities from suit, its
decision to bar interlocutory appeals of denials of the exclusivity provision might speak to
whether the provision conferred immunity from suit. But it doesn’t, and we’re bound to
apply federal procedural rules to determine our jurisdiction. Nero, 890 F.3d at 122.
Amisi next says that the exclusivity provision doesn’t provide immunity because
Brooks and Townsend “face[] suit in a different forum, namely, the Virginia Workers’
Compensation Commission.” Appellee’s Br. at 32. Yet the availability of an
administrative remedy doesn’t change that employers are spared from defending
themselves in court. Allowing Amisi’s suit to proceed would permanently deprive the
defendants of that benefit.
Further, Virginia courts have treated the exclusivity provision as jurisdictional. See
Lucas v. Biller, 130 S.E.2d 582, 587 (Va. 1963) (dismissing suit against employer under
predecessor exclusivity provision because “the [Workers’ Compensation] Act has deprived
all trial courts of jurisdiction over such matters”); Evans v. Hook, 387 S.E.2d 777, 780 (Va.
1990) (affirming dismissal of suit for lack of subject matter jurisdiction). Were the
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exclusivity provision a defense to liability, courts would treat it as an affirmative defense,
not a jurisdictional bar to suit.
We acknowledge that the Supreme Court of Virginia has, in dicta, suggested that
the Act merely allows immunity from liability. See Roller v. Basic Const. Co., 384 S.E.2d
323, 325 (Va. 1989) (“In exchange, employers under the canopy of the Act are sheltered
from common-law liability in tort.” (cleaned up)). But the greater (and more recent) weight
of authority holds that the immunity extends to avoidance of suit. See generally David
White Crane Serv. v. Howell, 714 S.E.2d 572, 575 (Va. 2011) (recognizing that the
provision confers “immunity from a common-law action in tort”); Hudson v. Jarrett, 606
S.E.2d 827, 829 (Va. 2005) (“An employee subject to the provisions of the Workers’
Compensation Act cannot file an independent tort action against his employer or any fellow
employee for injuries received in the course of employment.” (cleaned up)).
Satisfied that we have jurisdiction over the district court’s state law decision, we
turn to the merits.
C.
For an injury to come within the scope of the Virginia Workers’ Compensation Act,
it must (1) result from an accident (2) arising out of and (3) in the course of the injured
employee’s employment. Combs v. Va. Elec. & Power Co., 525 S.E.2d 278, 508 (Va.
2000).
Amisi concedes that her injuries resulted from an accident, but she disputes the
second and third elements. We agree that, at bottom, Amisi’s injuries didn’t “arise out of”
her employment, so we affirm the district court.
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“The phrase arising out of refers to the origin or cause of the [plaintiff’s] injury.”
County of Chesterfield v. Johnson, 376 S.E.2d 73, 74 (Va. 1989) (cleaned up). Virginia
determines whether an injury arises out of employment using the “actual risk” test. Simms,
704 S.E.2d at 363. “Actual risk” differs from “the positional risk test used in other
jurisdictions where simply being injured at work is sufficient to establish compensability.”
County of Chesterfield, 376 S.E.2d at 76.
Instead, an injury results from an “actual risk” only if it “can be seen to have
followed as a natural incident of the work.” Simms, 704 S.E.2d at 363 (cleaned up). By
contrast, the test “excludes an injury which cannot fairly be traced to the employment as a
contributing proximate cause,” nor one that comes from a hazard to which the worker
would have been exposed regardless of the employment. Id. The danger needn’t be
foreseeable, but it must “be peculiar to the work and not common to the neighborhood.”
Id. (cleaned up).
While a close question, we agree with the district court that Amisi’s injuries didn’t
“arise out of” her employment. First, the risk of an erroneous strip search was “common
to the neighborhood.” Id. Though Amisi may not have gone to the jail but for her
employment, she faced the same risk of an erroneous search as any visitor arriving to the
jail for the first time. See Hill City Trucking, Inc. v. Christian, 385 S.E.2d 377, 380 (Va.
1989) (declining to find that injuries arose out of employment where truck driver was
assaulted at 3:00 a.m. by robbers while driving on a dark unfamiliar road, and where (1)
there was no evidence that driver was targeted because of his employment, and (2) “anyone
traveling down the road at 3:00 a.m. was subject to the same risk”). cf. Combs, 525 S.E.2d
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at 510 (finding that employee was exposed to risk of negligent medical treatment “solely
because” she was an employee of the defendant company).
Amisi wouldn’t regularly be exposed to being searched while on the job, since by
her second day, she knew not to go to the Pre-Release Center. The one-time nature of the
risk distinguishes it from cases in which Virginia courts have found the Act applies even
where the public is also exposed.
The Supreme Court of Virginia, for example, held the Act applied when an
employee of a coin shop who “was required regularly to handle and carry large sums of
money in cash to a bank” was a victim of a bank robbery. R & T Invs., Ltd. v. Johns, 321
S.E.2d 287, 289 (Va. 1984). The court found that “the [employee’s] regular presence in a
branch bank, exposed her to a special risk of assault[.]” Id. at 290. And it rejected the
argument that the bank’s “customers were equally exposed to the robbers,” emphasizing
the repeated nature of the employee’s trips. Id.
Likewise, in Roberson v. Whetsell, the Court of Appeals of Virginia held that the
plaintiff’s “risk of being shot was peculiar to his employment” when he had to regularly
drive “pas[t] a public housing complex where gunfire was commonplace.” 463 S.E.2d 681,
683 (Va. Ct. App. 1995). While recognizing that the public also passes the complex, the
court noted that the plaintiff was required “to make repeated, regular trips through the
area.” Id. at 683–84 (quoting R&T Invs., 321 S.E.2d at 290).
Amisi’s case is also distinguishable from those where performing the employee’s
duties exposes the employee to a heightened risk. To illustrate, the Court of Appeals of
Virginia determined the Act applied to a greenhouse employee who was hit by a car while
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turning off a set of sprinklers located alongside a road—a duty of his employment. See
Green Hand Nursery, Inc. v. Loveless, 684 S.E.2d 818, 822–23 (Va. Ct. App. 2009).
The employer there argued that the employee’s injury was not peculiar to the work
being performed because the public too was exposed to the same risk. But the court held
that the employee’s duty (turning off the sprinklers) increased the risk to her “by diverting
attention from the danger of [an] approaching vehicle.” See id. at 823; see also Marion
Corr. Treatment Ctr. v. Henderson, 458 S.E.2d 301, 303 (Va. Ct. App. 1995) (holding that
correctional officer who slipped on stairs while observing guard tower was covered by Act
because the requirement that he observe the tower “increased his risk of falling on this
occasion and directly contributed to cause his fall and injury”). By contrast, nothing about
Amisi’s duties as a nurse increased her risk of being strip searched beyond that of any other
first-time jail visitor.
In sum, the requisite causal relationship doesn’t exist between Amisi’s job and her
risk of being strip searched, so the injury didn’t “arise out of” Amisi’s employment. Since
this element isn’t satisfied, we agree with the district court that the Virginia Workers’
Compensation Act’s exclusivity provision doesn’t bar Amisi’s state-law claims.
IV.
Townsend lastly argues that the district court erred in denying him immunity under
Virginia law for Amisi’s negligence, false imprisonment, and emotional distress claims.
We disagree.
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Under Virginia law, an officer is entitled to immunity if he acts “in good faith and
with [a] reasonable belief in the validity” of his conduct. See DeChene v. Smallwood, 311
S.E.2d 749, 751 (Va. 1984); see also Wingate v. Fulford, 987 F.3d 299, 312 (4th Cir. 2021)
(“Virginia law provides a defense to officers who subjectively believed in good faith that
their conduct was lawful and whose subjective beliefs were objectively reasonable.”
(cleaned up)). We’ve recognized that Virginia’s immunity doctrine “is congruent with the
federal qualified immunity defense.” Wingate, 987 F.3d at 312. The burden is on the
defendant to show the defense applies. Jordan v. Shands, 500 S.E.2d 215, 219 (Va. 1998)
(cleaned up).
Even if Townsend subjectively believed in good faith that his conduct was lawful,
his belief must be objectively reasonable. Wingate, 987 F.3d at 312. As we’ve explained,
Townsend acted unreasonably when he allowed Brooks to take Amisi into the locker room
to be strip searched while still awaiting confirmation that Amisi was an inmate. He also
acted unreasonably by participating in the strip search after Amisi was in the locker room.
Townsend’s arguments to the contrary rest on his belief Amisi was an inmate and
that he “was trying to help” her. See Appellants’ Br. at 41–45. But at the summary
judgment stage, we must take the district court’s factual findings as true and resolve all
disputed facts in Amisi’s favor. Taking Amisi’s account as true, Townsend’s immunity
defense under Virginia law fails for the same reasons as did his qualified immunity defense.
* * *
For these reasons, we affirm the district court’s judgment.
AFFIRMED