Judge Hears Motion to Dismiss Va. ABC Lawsuit

A federal judge said Tuesday that he will rule in about two weeks on whether a jury will get to consider a $40 million lawsuit filed by a University of Virginia student who fled in terror when her vehicle was swarmed by state Alcoholic Beverage Control agents who mistook her just-purchased carton of sparkling water for beer.

After a half-hour hearing, U.S. District Judge Henry Hudson dismissed Elizabeth K. Daly's two civil rights claims against the state. That leaves 10 remaining claims of malicious prosecution, conspiracy, false arrest and assault and battery against the seven undercover ABC agents involved in the late-night arrest outside a Charlottesville supermarket in April 2013.

Daly was charged with eluding police and assaulting a police officer after she drove away in a panic, grazing two of the agents with her SUV. The arrest provoked a public outcry, and the charges were dropped.

According to the complaint, badges worn around the casually dressed agents' necks were not clearly visible and the defendants did not verbally identify themselves as officers. The agents banged on the vehicle and shouted demands that Daly roll down the window and that she not start the engine. Daly, who claims she was frightened, did not comply.

"They didn't even advise my client why they were knocking,'' Daly's attorney, James B. Thorsen, told Hudson. "It was all, 'Roll down your window, do this, do that.' For what?''

One agent tried to break the window with his flashlight, and after another officer pulled a gun, one of Daly's two passengers shouted that the badges were fake and implored the driver to "go, go, go,'' the lawsuit says.

"They panicked. They were terrified,'' Thorsen said.

Catherine Crooks Hill, a senior assistant attorney general, did not dispute that Daly and her friends were afraid but maintained that the agents had a right to approach them to inquire about possible criminal activity.

"It's not all about Ms. Daly,'' Hill said. "You have to consider what a reasonable officer might believe under the circumstances.''

She said it was reasonable for the officers to believe their badges were visible, and for their suspicions to be aroused by the three students' erratic behavior and refusal to obey orders.

"The agents did nothing unlawful here, Ms. Daly did,'' she said.

Hudson expressed doubts about the viability of the conspiracy claim and whether assault and battery could be proven since the officers did not touch Daly. However, he also said that "absent an articulable suspicion, a citizen has a right to walk away'' from an inquisitive police officer.