                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-1887


ALAN J. CILMAN,

                  Plaintiff - Appellee,

          v.

M.A. REEVES, Police Officer, Vienna Police Department,

                  Defendant - Appellant,

          and

THE TOWN OF VIENNA, VIRGINIA; DOES 1-10, employees of the
Vienna Police Department,

                  Defendants.



                                No. 09-1920


ALAN J. CILMAN,

                  Plaintiff - Appellant,

          v.

M.A. REEVES, Police Officer, Vienna Police Department,

                  Defendant - Appellee,

          and

THE TOWN OF VIENNA, VIRGINIA; DOES 1-10, employees of the
Vienna Police Department,

                  Defendants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-01099-GBL-JFA)


Argued:   September 23, 2011          Decided:   November 4, 2011


Before MOTZ, KEENAN, and DIAZ, Circuit Judges.


Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


Julia Bougie Judkins, BANCROFT, MCGAVIN, HORVATH & JUDKINS, PC,
Fairfax, Virginia, for M.A. Reeves.    Alan J. Cilman, Fairfax,
Virginia, for Alan J. Cilman.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Alan     J.    Cilman       brought      this      suit       against       Officer    M.A.

Reeves and the Town of Vienna, Virginia alleging deprivation of

his   civil    rights    in       violation        of    42    U.S.C.    §    1983,      illegal

search and seizure in violation of Va. Code Ann. § 19.2-59, and

various state law torts.                 For the reasons set forth within, we

affirm    in    part,        reverse      in    part,         and    remand       for    further

proceedings consistent with this opinion.



                                               I.

      On October 2, 2004, Cilman went to Neighbors Restaurant in

Vienna, Virginia for dinner, drinks, and to watch a football

game on television.               Cilman arrived at Neighbors between 6:00

and 6:30 pm.         Shortly after midnight, he left Neighbors and got

into his car to drive home.                 Officer Reeves, who was patrolling

an adjacent apartment complex, noticed Cilman’s car progressing

through the parking lot at a “high rate of speed.”

      Officer Reeves proceeded to follow Cilman’s car, suspecting

that the driver could be driving under the influence of alcohol.

Officer      Reeves     testified          that         he    observed        a     number    of

infractions         during    his      pursuit        that      he    believed       gave    him

probable cause to arrest Cilman for driving under the influence,

including failing            to   stop    at   stop      signs,       failing       to   signal,

driving down the middle of the road, and accelerating quickly in

                                               3
turns.      After    following    Cilman    for   several      blocks,    Officer

Reeves testified that he turned on his police lights, and soon

also   activated     his   sirens.     Instead    of   pulling    over,    Cilman

proceeded to drive the extra two blocks to his home.                       Cilman

appeared to notice that he was being followed by police and

accelerated as a result.             According to Officer Reeves, Cilman

was driving so quickly that his car “bottomed out” when Cilman

turned into his driveway, causing sparks from contact with the

pavement.     Cilman testified that he noticed a vehicle following

him purposefully but stated that Officer Reeves did not activate

his lights until Cilman had already turned into his driveway.

       Officer Reeves stopped in front of Cilman’s driveway and

got out of his police cruiser just as Cilman was briskly walking

toward his front door.          Officer Reeves told Cilman to stop and

that   he   was   under    suspicion   of   driving    under    the   influence.

Cilman refused, telling the officer “this is my property, please

leave.”      Cilman then entered the house and locked the door.

Officer Reeves testified that Cilman’s speech seemed slurred.

Both Cilman and Officer Reeves agree that the officer did not

tell Cilman he was under arrest at that time.

       Officer Reeves called for backup and parked his car a few

houses down the street to wait for other officers.                        When he

heard the sirens of approaching police cars a few minutes later,

Officer     Reeves   returned    to    Cilman’s    door.       Officer     Reeves

                                        4
testified that he banged on the door and asked Cilman to open

up.   Cilman testified that no conversation took place.                             Officer

Reeves then kicked in Cilman’s front door and placed him under

arrest.

      Officer Reeves ultimately arrested Cilman for being drunk

in public and for evasion without force.                        The officer offered

somewhat     diverging     explanations        as   to    why     he    did   not    arrest

Cilman for driving under the influence.                     At his deposition and

in the police incident report, Officer Reeves stated that he did

not do so because he lost sight of Cilman when Cilman entered

his   home   and    thus   believed       he   could      not     arrest      Cilman    for

driving under the influence.              At trial, Officer Reeves testified

that he planned to arrest Cilman for driving under the influence

when he kicked in Cilman’s door, but because Cilman said he had

consumed alcohol while inside the house, Officer Reeves changed

the charge, believing that drunk driving could not be proven

under those circumstances.

      All    criminal      charges        against        Cilman        were   ultimately

dismissed.       Cilman then filed this action against Officer Reeves

and the Town of Vienna on five claims:                   deprivation of his civil

rights in violation of 42 U.S.C. § 1983, illegal search and

seizure     in   violation     of   Va.    Code     Ann.    §     19.2-59,     malicious

prosecution, false arrest, and gross negligence.                         Officer Reeves

and   Vienna     moved   for   summary      judgment.           The     district      court

                                           5
denied the officer’s motion but granted Vienna’s.                             We affirmed

the   denial     of     Officer    Reeves’         motion    and       dismissed    Cilman’s

cross-appeal as to Vienna as interlocutory.                             Cilman v. Reeves,

266 Fed. Appx. 270 (4th Cir. 2008).

      After remand, Cilman moved for summary judgment on all five

claims    against       Officer       Reeves.        The     district      court     granted

Cilman’s       motion    in     part,    ruling       that       the    officer     violated

Cilman’s   clearly           established       Fourth   Amendment         rights    when    he

kicked in Cilman’s door without a warrant, and that, therefore,

the officer was liable, as a matter of law, for violations of

§ 1983    and    Va.     Code     Ann.     §    19.2-59.           The    district     court

otherwise denied Cilman’s motion for summary judgment.                                Cilman

dropped the gross negligence claim before trial.                           Thus, only the

state tort claims, and the issues of causation and damages for

the constitutional and statutory violations went to trial.

      At the conclusion of the trial, the jury found in favor of

Officer    Reeves        on     all     issues.            The     jury     awarded       zero

compensation and punitive damages to Cilman on his § 1983 and

Va. Code Ann. § 19.2-59 claims and found in favor of Officer

Reeves on the malicious prosecution and false arrest claims.                               It

also answered in the affirmative a special interrogatory asking,

“Do you find:           With respect to the false arrest and malicious

prosecution [t]hat the defendant Officer Reeves acted in good

faith    and    with     a    reasonable       belief       in   the     validity    of    the

                                               6
plaintiff’s          arrest.”        Following       the     jury’s          verdict,      Officer

Reeves moved to set aside the grant of summary judgment as to

liability to Cilman on the constitutional and statutory claims,

and to have judgment entered in the officer’s favor on those

claims.     For        his    part,      Cilman     moved        for    a   new     trial.      The

district court denied both motions.

     On appeal, Officer Reeves challenges the grant of summary

judgment        in     favor        of     Cilman      as        to     liability          on   the

constitutional          and    statutory       claims,       and        the    denial      of   his

motion    for    a     judgment      as    a   matter       of    law       on those      claims. 1

Cilman cross-appeals the grant of summary judgment in favor of

Vienna,    the         lack     of       clarifying         language          in     a     special

interrogatory          given    to       the   jury,    and        the      district       court’s

refusal to give the jury one of Cilman’s proposed instructions.



                                               II.

     We    first       address       the    district        court’s         grant    of    summary

judgment    in       favor     of   Cilman     on    liability          for    his    42     U.S.C.

§ 1983 and Va. Code Ann. § 19.2-59 claims.                              We review de novo a

district court’s grant of summary judgment.                             Pueschel v. Peters,

     1
       Although the jury awarded zero damages on these claims,
Officer Reeves appeals the finding of liability because Virginia
law provides that “[a]ny officer found guilty of a second
offense under this section shall, upon conviction thereof,
immediately forfeit his office.” Va. Code Ann. § 19.2-59.



                                                7
577 F.3d. 558, 563 (4th Cir. 2009).                 “[I]n ruling on a motion

for summary judgment, the nonmoving party's evidence is to be

believed,      and    all    justifiable   inferences      are     to       be   drawn   in

[that party’s] favor.”              Hunt v. Cromartie, 526 U.S. 541, 552

(1999)    (internal         quotation   omitted).        Although       a    warrantless

entry     of   a     home    to   effectuate   an   arrest       is     presumptively

unlawful, Payton v. New York, 445 U.S. 573, 586 (1980), such an

entry is permitted if an officer has a combination of probable

cause and exigent circumstances.               See Payton, 445 U.S. at 583-

90.

      In granting summary judgment as to liability in favor of

Cilman on his constitutional and statutory claims, the district

court relied principally on Welsh v. Wisconsin, 466 U.S. 740

(1984).        The   court     concluded   that,    in    Welsh,      “[t]he      Supreme

Court has held that police may not make a warrantless entry into

a home to make an arrest for DUI,” and that “suspicion of drunk

behavior cannot, as a matter of constitutional law, create an

emergency that justifies warrantless entry.”                  In so holding, the

district court erred. 2


      2
       Our prior affirmance of the denial of summary judgment on
qualified immunity grounds to Officer Reeves is not at odds with
this holding.   Then, a material dispute of fact as to whether
Cilman’s driving was sufficiently erratic so as to warrant his
arrest precluded a grant of summary judgment to Officer Reeves.
Indeed, the district court itself noted that “a genuine issue of
material fact” prevented the grant of summary judgment.    To be
(Continued)
                                           8
     Contrary to the district court’s contention, Welsh does not

establish       a    categorical            rule     that      police      may   never   make     a

warrantless entry into a home to effect an arrest for driving

under the influence.                  The Welsh Court held only that, because

Wisconsin      treated       a    DUI       as   a     civil     non-jailable      offense      for

which    the    maximum          penalty         was     a    fine    of   $200,   no    exigent

circumstances justified the warrantless entry at issue there.

Welsh,    466       U.S.    at    753-54.            The      Court   emphasized      that    “the

penalty    that       may    attach         to     any       particular     offense     seems    to

provide    the       clearest         and    most        consistent        indication    of     the

State’s     interest             in     arresting             individuals        suspected       of

committing that offense.”                   Welsh, 466 U.S. at 754 n.14; see also

id. at 754 (“[The penalty] is the best indication of the State’s

interest in precipitating an arrest.”).

     Unlike the Wisconsin law at issue in Welsh, driving under

the influence in Virginia is a Class 1 misdemeanor punishable by




sure, the court also denied the motion because it believed that
Welsh compelled a ruling that a warrantless entry into a
suspect’s home to make an arrest for a non-violent traffic
offense   always  constitutes   a   clearly  established  Fourth
Amendment violation.    Our affirmance, in two paragraphs, “for
the reasons stated by the district court” does not, however,
signal wholesale adoption of the entire rationale offered by the
district court, particularly when that rationale was at odds
with the court’s holding that a genuine issue of material fact
prevented the grant of summary judgment.      When Cilman later
moved for summary judgment, this same factual dispute required
the court to deny that motion.


                                                     9
up to a year in jail and a $2500 fine.               Va. Code Ann. § 18.2-

270(A); id. § 18.2-11.       A conviction may also result in a one-

year driver’s license suspension, id. § 18.2-271, and require

the   offender    to   complete   a   mandatory     alcohol    safety   action

program.    Id. § 18.2-271.1.          If the blood alcohol level is

determined to be above .15, Virginia law imposes a five day

mandatory jail term.      Id. § 18.2-270(A)(i). 3

      Although the Supreme Court later observed that “Welsh drew

a   distinction   between   jailable       and   nonjailable   offenses,   not

between felony and misdemeanor offenses,” Illinois v. McArthur,

531 U.S. 326, 335–36 (2001), in Welsh itself, the Court left

open the possibility that the Fourth Amendment could impose a

wholesale ban on warrantless home arrests for minor offenses.


      3
       Cilman argues that Officer Reeves only arrested him for
the lesser charge of being “drunk in public,” a Class 4
misdemeanor for which the penalty is a fine of no more than
$250, and thus Officer Reeves did not think he had committed a
serious crime.   This argument does not help Cilman because in
assessing Officer Reeves’ acts we consider not his subjective
beliefs but whether his acts were objectively reasonable.   See
Whren v. United States, 517 U.S. 806, 813 (1996).        Viewed
objectively, Reeves had probable cause to arrest Cilman for
driving under the influence. Virginia law does not require that
a person be within an officer’s view at all times prior to an
arrest for driving under the influence; nor does imbibing
alcohol in one’s home save a wrongdoer from a DUI conviction.
Instead, Virginia law provides that an officer may arrest a
person “whether or not the offense was committed in such
officer’s presence.”    Va. Code Ann. § 19.2-81(D); see also
Cutright v. Commonwealth, 601 S.E.2d 1, 3 (Va. Ct. App. 2004)
(noting that a police officer’s observations can support a DUI
conviction even in the absence of a blood alcohol test).


                                      10
Welsh, 466 U.S. at 749 n.11 (“Because we conclude that, in the

circumstances         presented     by    this      case,   there    were    no    exigent

circumstances sufficient to justify a warrantless home entry, we

have no occasion to consider whether the Fourth Amendment may

impose an absolute ban on warrantless home arrests for certain

minor    offenses.”).          We    need      not     here   determine      the    exact

parameters       of    the   rule   set       forth   in    Welsh    because      even   if

Officer    Reeves      did   violate      Cilman’s      Fourth      Amendment      rights,

those rights were not “clearly established.”

     No controlling Supreme Court or Fourth Circuit precedent

speaks to a person’s right to be free from a warrantless entry

into his home in circumstances like those in the case at hand.

Numerous out-of-circuit cases do address this issue, but courts

have divided on this question.                     Some hold that commission of a

misdemeanor drunk driving offense subject to a possible jail

term does not justify a warrantless home arrest.                             Hopkins v.

Bonvicino, 573 F.3d 752 (9th Cir. 2009); Patzner v. Burkett, 779

F.2d 1363 (8th Cir. 1985); State v. Saale, 204 P.3d 1220 (Mont.

2009); Norris v. State, 993 S.W.2d 918 (Ark. 1999); State v.

Flegel, 485 N.W.2d 210 (S.D. 1992).                     Others, however, hold to

the contrary.          See, e.g., People v. Thompson, 135 P.3d 3 (Cal.

2006);    City    of    Middletown       v.    Flinchum,      765   N.E.2d    330   (Ohio

2002); State v. Legg, 633 N.W.2d 763 (Iowa 2001); State v. Paul,

548 N.W.2d 260 (Minn. 1996); Cherry v. Commonwealth, 605 S.E.2d

                                              11
297, 306 (Va. App. 2004); Stark v. New York State Dep’t of Motor

Vehicles, 104 A.D.2d 194, 196 (N.Y. App. 1984).                  In light of the

divergence in these holdings, we can only conclude that Officer

Reeves    was   entitled   to    qualified       immunity.       See    Malley     v.

Briggs, 475 U.S. 335, 341 (1986) (“[I]f officers of reasonable

competence could disagree on [the] issue, immunity should be

recognized.”).         Accordingly,        the      district    court    erred     in

granting   summary     judgment    to    Cilman      on   liability     as    to   the

§ 1983 and Va. Code Ann. § 19.2-59 claims. 4



                                        III.

     Next,      we   consider    whether      the    district   court    erred     in

denying    Officer     Reeves’     post-trial        motion     to    enter    final

judgment as a matter of law in his favor on liability as to the

§ 1983 and Va. Code Ann. § 19.2-59 claims.

     4
        Although Virginia law does not recognize qualified
immunity, the district court also erred in granting partial
summary judgment on Cilman’s Va. Code Ann. § 19.2-59 claim. See
Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).         Under
Virginia’s   sovereign  immunity  doctrine,  a   police   officer
performing discretionary functions is entitled to sovereign
immunity if he did not commit “gross negligence.”       Colby v.
Boyden, 400 S.E.2d 184, 186 (Va. 1991). “[G]ross negligence is
the ‘absence of slight diligence, or the want of even scant
care.’”   Id. at 189 (quoting Frazier v. City of Norfolk, 362
S.E.2d 688, 691 (Va. 1987)). Given the division in authority as
to whether a warrantless entry in to the home is lawful under
the circumstances of this case, Officer Reeves could not be
found grossly negligent in presuming his actions were lawful.
This is perhaps why Cilman dropped his gross negligence claims
before trial.


                                         12
        A trial court must enter a final judgment as a matter of

law if “there can be but one reasonable conclusion as to the

verdict.”         Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986).      Judgment as a matter of law is appropriate if there is

not “sufficient disagreement to require submission to a jury”

and the evidence “is so one-sided that one party must prevail as

a matter of law.”             Id. at 251-52.

        In   this        case,      although       the     jury’s          verdict     did      not

specifically        address         liability       as    to    the    constitutional           and

statutory claims, it did sufficiently resolve the disputed facts

in favor of Officer Reeves.                       For the jury not only rejected

Cilman’s false arrest and malicious prosecution claims; it also

expressly answered in the affirmative a special interrogatory

that asked, “Do you find:                   With respect to the false arrest and

malicious prosecution [t]hat the defendant Reeves acted in good

faith    and      with    a    reasonable       belief         in    the    validity       of   the

plaintiff’s arrest.”                The only reasonable conclusion from this

verdict      is    that       the    jury    concluded          that       Cilman    did     drive

erratically,        justifying         Officer      Reeves’          subsequent      arrest      of

Cilman.

     Cilman        objects          strenuously      to        the    application       of      the

special      interrogatory            to    the     constitutional            and     statutory

claims, and argues that the special interrogatory was limited to

the false arrest and malicious prosecution claims.                                  Although he

                                               13
is   correct   that    the     special    interrogatory        included   limiting

language,      the     state      tort         claims    and    deprivation       of

constitutional and statutory rights claims all arise out of the

same set of facts.        Given that the jury in this case determined

that Officer Reeves acted in good faith and with a reasonable

belief    in   the    validity    of     the    arrest   for    the   purposes    of

Cilman’s state tort claims, a subsequent jury could not conclude

that Cilman obeyed all traffic signals and displayed no drunk

behavior for the purpose of the constitutional and statutory

claims.     Returning this case for a second jury trial would be

futile in light of the jury verdict in this case.                        Therefore,

Officer Reeves was entitled to judgment as a matter of law on

the constitutional and statutory claims.



                                         IV.

      We now turn to Cilman’s cross-appeal.

                                          A.

      Cilman    initially      appeals     the    district     court’s    grant   of

summary judgment to Vienna.              Unlike Officer Reeves, Vienna is

not entitled to qualified immunity based upon the good faith

actions of its employees, see Owen v. City of Independence, 445

U.S. 622, 638 (1980), and so we must determine whether, in this

circumstance, Vienna should be held liable for the actions of

Officer Reeves.

                                          14
      Three        elements     establish    supervisory     liability      under

§ 1983:

      (1) that the supervisor had actual or constructive
      knowledge that his subordinate was engaged in conduct
      that posed ‘a pervasive and unreasonable risk’ of
      constitutional injury to citizens like the plaintiff;
      (2) that the supervisor’s response to that knowledge
      was so inadequate as to show ‘deliberate indifference
      to or tacit authorization of the alleged offensive
      practices,’; and (3) that there was an ‘affirmative
      causal link’ between the supervisor’s inaction and the
      particular constitutional injury suffered by the
      plaintiff.

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).

      Even assuming that Vienna failed to train Officer Reeves,

Cilman must show that the failure to train was the result of a

“deliberate indifference” on the part of the city.                   See Doe v.

Broderick, 225 F.3d 440, 456 (4th Cir. 2000).                As in Broderick,

“[t]here      is    simply    nothing   in   the   record   to    suggest    that

[Vienna’s] lack of instruction of its officers . . . was the

result of an affirmative, conscious decision.”              Id.

      Cilman argues that the police department had not adequately

responded to past complaints involving searches and seizures,

had   not      disciplined       its    officers    for     Fourth    Amendment

violations,        and   even    affirmatively     instructed     officers     to

violate the Fourth Amendment.            But, to support this contention,

Cilman offered only isolated and unconnected incident reports

and complaints.          Even if we agreed that these incidents show

violations of the Fourth Amendment, we have previously held that

                                        15
such   “isolated,      unprecedented    incidents”      do    not     suffice    to

create municipal liability.         Id. at 456.

       Nor do we find persuasive Cilman’s contention that Vienna

“ratified” and “aid[ed] and abet[ed]” Officer Reeves’ misconduct

by   filing     “specious”    new   charges   “to    help     cover    or   lessen

Reeves’ misconduct.”         Because Cilman did not raise this argument

in the district court, it is waived.              Moreover, Cilman points to

no official policy or custom maintained by Vienna that mandates

or condones conduct in violation of the Fourth Amendment.                       See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).                     We

agree with the district court that Cilman has not “set forth

sufficient facts to establish that the supervising officials had

knowledge, actual or constructive, that Town of Vienna police

officers were engaged in conduct that . . . posed a pervasive

and unreasonable risk of constitutional injury to citizens like

the plaintiff.”

                                       B.

       Cilman   also   maintains    that    the    district    court    made    two

trial errors.

       First, he contends that the district court erred in not

clarifying that the special interrogatory applied only to the

false arrest claim and not to the constitutional and statutory

claims.       This argument is meritless.            In fact, the district

court did include the clarifying language that Cilman requested.

                                       16
The special interrogatory reads in its entirety:                           “Do you find:

With    respect       to   the    false       arrest    and    malicious        prosecution

[t]hat      the     defendant     Reeves      acted    in     good   faith      and    with   a

reasonable belief in the validity of the plaintiff’s arrest.”

Of course, as explained above, this clarifying language does not

preclude the conclusion that Officer Reeves had probable cause

to arrest Cilman for driving under the influence for the purpose

of the constitutional and statutory claims.

       Second, Cilman contends that the district court erred in

refusing to give the jury Instruction Q, which reads:                                  “Reeves

must show by a preponderance of the evidence that at the time he

arrested plaintiff Alan Cilman he had probable cause for each

element of the offense.”                 Instead, the trial court instructed

the    jury    as    follows:          “Probable      cause    to    institute        criminal

proceedings         against      the    plaintiff      existed       if   the    facts     and

circumstances known to defendant and on which he acted were such

that a reasonable and prudent man acting on the same facts and

circumstances would have believed the plaintiff guilty.”

       We     review    challenges       to    jury    instructions        for    abuse       of

discretion.         Nelson v. Green Ford, Inc., 788 F.2d 205, 208 (4th

Cir. 1986).         When considering an objection to jury instructions,

we determine if the jury instructions, taken as a whole, fairly

state controlling law.             Barber v. Whirlpool Corp., 34 F.3d 1268,

1279 (4th Cir. 1994).

                                               17
     The district court’s instruction fairly stated controlling

law; indeed, it is almost verbatim the definition of probable

cause used by the Supreme Court of Virginia.                                    See Stamathis v.

Flying    J,    Inc.,          389    F.3d     429,      437        (4th   Cir.      2004)      (“Under

Virginia law, ‘probable cause is defined as knowledge of such

facts    and    circumstances            to    raise       the       belief     in     a    reasonable

mind,     acting          on    those        facts       and     circumstances,             that       the

plaintiff is guilty of the crime of which he is suspected.’”

(quoting Stanley v. Webber, 260 Va. 90, 96 (2000))).                                        Therefore,

the district court did not err in refusing to give Cilman’s

instruction.



                                                    V.

     For the foregoing reasons, we reverse the district court’s

partial    grant       of      summary       judgment          in    favor      of   Cilman       as    to

liability on his 42 U.S.C. § 1983 and Va. Code Ann. § 19.2-59

claims,    and       we    remand       to    the     district         court      to   enter       final

judgment as a matter of law in favor of Officer Reeves on these

claims.         We    affirm          the     district         court’s       grant         of   summary

judgment       in    favor       of    Vienna.            Finally,         we    reject         Cilman’s

remaining cross-appeal contentions.

                                                                                AFFIRMED IN PART,
                                                                                REVERSED IN PART,
                                                                                     AND REMANDED



                                                    18
