                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-1172


LAWRENCE W. TRULL,

                Plaintiff - Appellant,

           v.

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

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:08-cv-00460-HEH)


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


Before WILKINSON and NIEMEYER, Circuit Judges, and Patrick
Michael DUFFY, Senior United States District Judge for the
District of South Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Thomas Hunt Roberts, THOMAS H. ROBERTS & ASSOCIATES, PC,
Richmond, Virginia, for Appellant. Benjamin Adelbert Thorp, IV,
OFFICE OF THE COUNTY ATTORNEY, Henrico, Virginia, for Appellees.
ON BRIEF: Joseph P. Rapisarda, Jr., Karen M. Adams, OFFICE OF
THE COUNTY ATTORNEY, Henrico, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                                        I.

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

filed   a   Complaint       in   the    Circuit     Court    for      the     County   of

Henrico, Virginia asserting federal and state causes of action

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

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

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

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

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

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

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

2008 the district court granted Appellees motion to dismiss as

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

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

district court granted Appellees motion for summary judgment as

to the remaining claims and dismissed the suit.                            Appellant has

appealed.     We possess jurisdiction to hear this appeal pursuant

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



                                           II.

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

of Henrico police department responded to a 911 call reporting a

domestic    dispute     at   5403      Riverdale     Drive      in    the     County    of

                                            2
Henrico      (“the     residence”).             The          call    was    placed    from     that

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

Picchi      were      married         and   lived        at     the    residence      together.

Prior to arriving at the residence, the officers understood that

the caller alleged that her husband had threatened to have her

removed from the home.

      When     the     officers         arrived,         Picchi       invited     them    in   and

explained that Trull had contacted his daughter to have Picchi

removed       from     the      house.        There           were     no    signs    that     the

altercation          between      Picchi        and          Trull    had     been    physical.

Additionally, she informed the officers that an antique firearm

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

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

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

unable to locate the firearm.

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

arrived       at    the    residence,         he        was    inside       the   main    hallway

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

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

unwillingness to exit the bathroom and explained that he was in

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

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

force was such that the door was not damaged.



                                                   3
       Trull    alleged    in     his    Complaint         that    when    the    officers

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

He    maintains   that     he    was     so    frightened     that    he       urinated    on

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

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

bathroom pursuant to the officers’ directions.

       After    exiting     the    bathroom,         Trull        proceeded      into     the

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

the residence and suggested that he could stay with his family

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

because his daughter’s home was not wheelchair accessible.

       At some point, the officers became aware that Trull was

experiencing       worrisome           medical       symptoms        including          chest

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

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

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

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

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

continued to speak with him during this time.

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

hospital.       The officers were clear that they thought he should

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

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

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

                                              4
hospital.       He was never handcuffed, he did not attempt to leave

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

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

wheelchair.

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

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

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

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

ambulance, or accompany him to the hospital.                         Approximately 30

minutes after he exited the bathroom, Trull departed from the

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



                                           III.

                                               A.

       Appellant        appeals        from        the   district        court’s    order

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

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

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

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

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

we    accept     as   true   the       facts       alleged   in   the    complaint     and

determine whether they support a plausible claim for relief.

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

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

                                               5
facts making them plausible are insufficient to survive a motion

to dismiss.        See id.

                                         B.

       We    first   address      Appellant’s    argument       that     the   district

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

the entry into the bathroom violated the Constitution.                          We find

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

exigent circumstances.

       The       exigent     circumstances      exception          to    the    warrant

requirement        “basically      encompasses        officer      safety      and     the

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

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

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

officers have a “reasonable suspicion” that such circumstances

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

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

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

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

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

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

circumstances that overcome the presumption of unreasonableness

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

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



                                         6
     With    that       framework      in   mind,       the    issue    is    whether      the

officers’    entry       into   the    bathroom         can    be    justified     based    on

exigent    circumstances.             Specifically,           whether   based      upon    the

facts    known     to    the    officers         at    the    time    they    entered      the

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

     The officers were at the residence responding to a domestic

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

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

gun somewhere in the residence.                      The officers were justified in

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

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

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

Under these circumstances, the officers were also correct in

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

entry     into     the     bathroom         was       justified        by    the     exigent

circumstances.

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

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

Fourth     Amendment       rights      by       entering      the     bathroom     when     he

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

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

disagree    with        that    reading         of    Randolph,       because      here    the

officers    were    investigating           a    domestic      situation      rather      than

conducting a search for evidence of a crime.

                                                7
     In Randolph, Janet Randolph called the police to report a

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

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

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

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

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

and found evidence they sought to use against Randolph in a

criminal prosecution.            Id.   The Court held that the evidence

should be suppressed, because the search violated his Fourth

Amendment right to be free from unreasonable search and seizure.

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

third    party    has    no   recognized      authority       in   law    or    social

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

disputed invitation, without more, gives a police officer no

better   claim     to    reasonableness      in    entering    than      the    officer

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

     The Court noted that a search for evidence based on consent

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

to   enter   a    home    for    purposes     of    investigating        a     domestic

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

stated the distinction as follows:

     But this case has no bearing on the capacity of the
     police to protect domestic victims. The dissent's
     argument rests on the failure to distinguish two
     different issues: when the police may enter without
     committing a trespass, and when the police may enter

                                         8
       to search for evidence. No question has been raised,
       or reasonably could be, about the authority of the
       police to enter a dwelling to protect a resident from
       domestic violence; so long as they have good reason to
       believe such a threat exists, it would be silly to
       suggest that the police would commit a tort by
       entering, say, to give a complaining tenant the
       opportunity to collect belongings and get out safely,
       or to determine whether violence (or threat of
       violence) has just occurred or is about to (or soon
       will) occur, however much a spouse or other co-tenant
       objected. . . .

Id. at 118.

       In   this    case,   the      situation          contemplated         in     Randolph

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

of a domestic disturbance.             There was no outward evidence that

there was any violence, but a definite determination could not

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

fall    outside     the   holding      in       Randolph,    but       are    within       the

situation    contemplated       in    the       above    quoted    portion          of    that

opinion.

       Additionally,      the   need    for       the     officers      to        enter   the

bathroom     to    interview    Trull       is    supported       by    Virginia          law.

Virginia    Code     section    19.2-81.3         provides    the       framework         that

officers are required to follow when dealing with a domestic

situation.         The statute does not speak in terms of creating

duties, but does provide specific actions that officers should

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

as follows:


                                            9
     B. A law-enforcement officer having probable cause to
     believe that [an assault and battery or violation of a
     protective order] has occurred shall arrest and take
     into custody the person he has probable cause to
     believe, based on the totality of the circumstances,
     was the predominant physical aggressor unless there
     are special circumstances which would dictate a course
     of action other than an arrest. The standards for
     determining who is the predominant physical aggressor
     shall be based on the following considerations: (i)
     who was the first aggressor, (ii) the protection of
     the health and safety of family and household members,
     (iii) prior complaints of family abuse by the
     allegedly abusing person involving the family or
     household members, (iv) the relative severity of the
     injuries   inflicted  on   persons  involved   in  the
     incident, (v) whether any injuries were inflicted in
     self-defense, (vi) witness statements, and (vii) other
     observations.

     C. Regardless of whether an arrest is made, the
     officer   shall  file   a   written  report   with   his
     department, which shall state whether any arrests were
     made, and if so, the number of arrests, specifically
     including any incident in which he has probable cause
     to believe family abuse has occurred, and, where
     required, including a complete statement in writing
     that there are special circumstances that would
     dictate a course of action other than an arrest. The
     officer shall provide the allegedly abused person,
     both orally and in writing, information regarding the
     legal   and  community   resources  available   to   the
     allegedly abused person. Upon request of the allegedly
     abused person, the department shall make a summary of
     the report available to the allegedly abused person.

Va. Code § 19.2-81.3.

     The record does not show the officers had evidence of any

violence at the scene.            However, courts have recognized that

domestic     situations       can     escalate      quickly:     “[d]omestic

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

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

                                      10
Commonwealth, 572 S.E.2d 493, 496 (Va. Ct. App. 2002) (quoting

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

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

court noted that Virginia Code section 19.2-81.3 created officer

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

protecting    against       domestic       violence,       the    General       Assembly

increased the duties of law-enforcement officers when responding

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

     Therefore, as the officers’ entry into the bathroom was

justified     by      the        exigent        circumstances,           Randolph      is

distinguishable, and Virginia statutory law further supports the

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

Trull’s constitutional rights by entering the bathroom.

                                           C.

     Next,    Trull     argues      that     the      district      court    erred    in

dismissing    his    claim    that     the      officers     violated       his   Fourth

Amendment rights by using excessive force when they entered the

bathroom.      The    Complaint        alleged        that    the    door       hit   his

wheelchair “knocking Trull and his wheelchair violently across

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

urinated upon himself and causing him to experience high blood

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

Complaint ¶ 14, in Joint Appendix at 10.



                                           11
       In Sigman v. Town of Chapel Hill, this court affirmed a

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

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

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

judgment was not totally clear as to whether the decedent was

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

that    difference     in   the    witness     testimony      created    a    material

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

reasonably perceived and whether his action was reasonable in

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

whether they undertook an objectively reasonable investigation

with    respect   to    that      information     in    light    of     the   exigent

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

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

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

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

hospital.      However, given the circumstances, it was appropriate

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

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

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

       Therefore, based on the information known to the officers

and in light of the exigent circumstances, they undertook an

objectively reasonable course of action.



                                          12
                                              D.

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

constitutional claims, Trull also appeals the dismissal of his

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

properly dismissed that claim.

       Trespass      is   the    “unauthorized        entry     onto   property         that

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

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

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

for   trespass       cannot     be    successful.       As    discussed      above,      the

officers lawfully entered the house and lawfully entered the

bathroom.

                                              E.

       In addition to the claims against the officers, Appellant

maintains that the County of Henrico is liable for its failure

to    train    the   police     officers      correctly.        The    district     court

dismissed Appellant’s claim seeking a declaratory judgment that

the     officers      violated         Trull’s      rights     under    the       Virginia

Constitution.        On   appeal       Appellant     argues    that    the    county      is

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

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

rights, his claim cannot be successfully maintained.

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

under    certain      limited        circumstances,     a    municipality      could      be

                                              13
held liable for a failure to train police.                        489 U.S. 378, 388

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

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

to train amounts to deliberate indifference to the rights of

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

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

the deprivation of a constitutional right, because the “first

inquiry in any case alleging municipal liability under § 1983 is

the question whether there is a direct causal link between a

municipal    policy      or       custom    and     the    alleged      constitutional

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

deprivation of a constitutional right, this claim fails.



                                            IV.

                                            A.

      Appellant      also     appeals      from     the   district      court’s    order

granting summary judgment in favor of the Appellees.                        We review

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

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

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

summary judgment de novo”).

      In reviewing a district court’s grant of summary judgment

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

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

                                            14
cert.    denied      552   U.S.    1243       (2008)   (“We       review    the   district

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

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

drawing    all       reasonable        inferences      in    her    favor”)       (internal

citation omitted).

     Summary         judgment     is    appropriate         “if    the    pleadings,   the

discovery and disclosure materials on file, and any affidavits

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

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

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

burden of showing that there is no genuine issue of material

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

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

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

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

follows:

     the nonmoving party would on trial carry the burden of
     proof, he is therefore entitled . . . to have the
     credibility of his evidence as forecast assumed, his
     version of all that is in dispute accepted, all
     internal conflicts in it resolved favorably to him,
     the most favorable of possible alternative inferences
     from it drawn in his behalf; and finally, to be given
     the benefit of all favorable legal theories invoked by
     the evidence so considered.

Charbonnages, 597 F.2d at 414.




                                              15
                                              B.

     Trull    argues       that    the    district      court   erred   in    granting

summary judgment as to his claim that the officers violated his

constitutional rights by having him come into the kitchen to

continue the investigation, and also by their actions relating

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

summary    judgment    was       inappropriate      because     genuine      issues    of

material     fact    existed      as     to    whether    the   officers’      actions

resulted in an unconstitutional seizure.

     In United States v. Mendenhall, the Supreme Court explained

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

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

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

there any foundation for invoking constitutional safeguards. Id.

The purpose of the Fourth Amendment is not to eliminate all

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

arbitrary and oppressive interference by enforcement officials

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

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

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

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

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

under the Constitution require some particularized and objective

justification.”       Id.

                                              16
      Appellees admit that a seizure occurred when the officers

ordered Trull out of the bathroom and briefly detained him in

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

did     not   violate       the    Fourth      Amendment’s     protection        from

unreasonable     seizure.          The    officers     were        investigating     a

domestic situation and still searching for a gun.                       This brief

seizure amounted to little more than initial questioning of the

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

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

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

yet located the firearm.             As such, the exigent circumstances

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

we affirm because the brief seizure was reasonable.

      Additionally, the district court correctly held that the

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

seizure ended when the questioning was completed and Trull was

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

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

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

the officers forced Trull to go to the hospital by physical

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

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

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

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

                                          17
                                        C.

     We also affirm the district court’s order granting summary

judgment as to the claims for assault and battery and false

imprisonment.     The   assault       and     battery    claim   was     properly

disposed of at summary judgment, because the court correctly

decided that the seizure was reasonable and did not violate the

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

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

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

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

Therefore,   we   affirm     summary    judgment    as   to   these    state   law

claims.



                                        V.

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

orders.      Because    we    find     that   no   constitutional      violation

occurred, we need not address qualified immunity.

                                                                         AFFIRMED




                                        18
