RICHMOND, Virginia – A federal appeals court has reversed a lower court decision in two consolidated cases filed by the estate of a man killed by an officer and his girlfriend who says she was shot without reason.
In an August 1 published opinion, the U.S. Court of Appeals for the Fourth Circuit reversed lower court decisions in two related lawsuits filed in 2021 by Taylor Quinn and by the estate of Eric Toon against the West Virginia State Police, the Kanawha County Sheriff’s Department and others. The lawsuits were filed by Taylor Quinn and the estate of Eric Toon. It reversed a warrantless entry claim as well as Quinn’s excessive force and state law battery claims against Lt. Christopher K. Zerkle and her state law trespass claim against Kanawha County deputies.
The Fourth Circuit also affirmed the District Judge Irene Berger’s decision regarding an excessive force claim and failure to intervene claim brought by Toon’s estate. Finally, the court remanded the case for further proceedings consistent with its opinion.
In her original complaint, Quinn alleged she was shot without reason by a state Trooper in the incident that left her boyfriend dead. Other listed defendants are the Kanawha County Sheriff’s Department members Sgt. Paxton Lively, Sgt. Rick Keglor, Deputy Brandon Kay and Deputy Jamie Miller. Toon’s estate filed a related lawsuit soon after, and the cases were consolidated before Berger.
Zerkle and the Kanawha deputies both moved to dismiss, and Berger granted their motions in part and denied in part. After discovery, Zerkle and the Kanawha deputies then moved for summary judgment on the remaining claims. Berger granted both motions, and the plaintiffs appealed to the Fourth Circuit.
“Because we conclude that factual disputes preclude summary judgment on appellants’ (Quinn and the Toon estate) warrantless entry claims and Quinn’s excessive force, battery and trespass claims, we reverse the district court’s decision as to those claims,” states the Fourth Circuit majority opinion written by Circuit Judge Roger Gregory. “Without determining whether the officers are entitled to qualified immunity as the district court held, we affirm the court’s decision on all remaining claims on the grounds that there are no material disputes of fact and therefore appellees (defendants) are entitled to judgment as a matter of law as to those claims.”
According to the complaints, Quinn was at her home outside of Charleston city limits on Aug. 1, 2019. She shared the home with Toon. It says Zerkle was alerted of a domestic disturbance involving a man and a woman near a gas station off the Tuppers Creek exit of Interstate 77 in Sissonville. The complaints say Zerkle blocked a roadway near Quinn’s home with his unmarked cruiser and saw Toon and another person riding a motorcycle past him without a helmet.
“The only three eyewitnesses still living reported that the motorcycle operated by Eric Toon, now deceased, did not impact defendant Zerkle's cruiser,” the complaints state. “Defendant Zerkle stated in the incident report that the motorcycle operated by Eric Toon did impact his left front tire, perhaps one of four places on a vehicle which would not reveal damage if impacted, and then instituted a high speed chase down Falcon Drive, a two lane residential street.
“Defendant Zerkle fabricated this story about the motorcycle hitting his vehicle in an attempt to justify the outrageous police misconduct that ensued. The high speed pursuit initiated by defendant Zerkle then proceeded onto Rt. 21 and into (Charleston) city limits … over the Patrick Street Bridge and onto the interstate highway system.”
Shortly thereafter, Quinn says Toon returned home and got into bed with her.
“At some point later in the morning, approximately fourteen (14) law enforcement officers, plus several K-9 officers descended upon (their residence) and attempted to unlawfully gain entry into her home without a search warrant,” the complaints state. “The officers learned that Eric Toon lived (there) from the male suspect in the domestic dispute earlier that morning.
“Therefore any ‘tracking’ by the K-9 units was a pretext and superfluous.”
The complaints say five members of the sheriff’s department responded, even though at least one said the “pursuit had been cancelled.” Toon wasn't charged with anything following the motorcycle incident, and there was no warrant for his arrest. The complaints also say Miller’s K-9 partner Max began tracking the area and located a helmet. Zerkle located “a brand new cellphone at the corner of the house” as well.
“The K-9's initial tracking effort did not produce a ‘hit’ on the … residence,” the complaints state. “Defendant Zerkle spoke to the K-9 officer, defendant Miller, and asked him to try tracking again based on the helmet and the ‘brand new cell phone’ he found, the second time the K-9 tracked to the front of the 116 Lotus Drive residence and signaled a ‘hit.’
“Defendant Miller then reported that he ‘had enough to try and make entry.’”
The complaints say the sheriff’s department members breached the front door and unlawfully entered the home, flushing the residents “out of a side window, where one was shot and killed, and the plaintiff, who was in fear for her life, was severely injured.”
The lawsuits say Toon went out the window first and “was shot and killed as he lay on the ground.”
“Defendant Zerkle shot Mr. Toon once in the neck and once in the head as he lay dying (and/or dead),” the complaints state. “Quinn went out the window after Eric Toon. She was shot by defendant Zerkle after Eric Toon was shot. Ms. Quinn was unarmed, unwanted, and not suspected of committing any crime.”
Media reports of the incident say Toon was carrying a rifle when he jumped out of the window of the house.
Quinn says she was severely injured, required extensive hospitalization, and continues to incur medical expenses. She says she suffered permanent injury to her shoulder and nerve damage to her right arm and right hand as well as pain and suffering, mental anguish and disfigurement.
Quinn accuses the defendants of negligence, recklessness, malicious conduct as well as violating conduct and emotional distress.
She seeks compensatory damages for her injuries and lost earning capacity, pain and suffering, medical expenses and other losses, including punitive damages. She also seeks pre- and post-judgment interest, attorney fees and court costs.
Quinn and Toon’s estate are being represented by Jesse Forbes and Jennier N. Taylor of Forbes Law Offices and by L. Dante diTrapano and Amanda J. Davis of Calwell Luce diTrapano. The defendants are being represented by Sylvester Allen Hill Jr. and Allison Marie Subacz of Cipriani & Werner and by Michael Mullins and Robert L. Bailey of Steptoe & Johnson.
U.S. Court of Appeals for the Fourth Circuit case numbers 22-2187 (Quinn) and 22-2188 (Toon estate); U.S. District Court for the Southern District of West Virginia case numbers 2:21-cv-421 (Quinn) and 2:21-cv-427 (Toon estate)
