*1 Fаrrow, III, indi County; J. MICHAEL, Walter NIEMEYER, and Before capacity as vidually in his official and GREGORY, Judges. Circuit Sheriff; County Deputy Wil a Martin PER by unpublished Affirmed individually Jr., and Waters, liam R. opinion. CURIAM capacity as a William in his official officer; police ston North Carolina binding opinions are not Unpublished individually her Cox, and in Melanie Local Rule in this circuit. See precedent capacity as a Williamston official 36(c). officer; police Charlie North Carolina PER CURIAM: individually Brown, in his official the district appeals Storch Jill Charlene North Car capacity as a Williamston bankruptcy affirming the court’s order Forney, III, officer; police Elvie olina re- her motion for denying court’s order capaсi individually and in his official annulling the of the order consideration ty North Carolina aas Williamston proper- stay respect automatic with McFarland, officer; indi police Scott Road, Balti- ty at 8524 Willow Oak located capacity vidually as and in his official more, Maryland. We have reviewed Sheriff; County Deputy Bri a Martin Ac- find no reversible error. record and Edmondson, individually and in his for the reasons stated cordingly, we affirm County capacity a Martin official as Storch, Nos. court. In re: by the district Hardison, Sheriff; indi Brian CA-05-107-1-JFM; BK-04-26509-1 capacity vidually as and in his official (D.Md. 2005). with Apr. dispense We North Carolina a Williamston legal argument oral because the facts and Cowan, individually officеr; Travis adequately presented are contentions capacity as a Wil and in his official argu- the court and the materials before police offi liamston North Carolina process. the decisional ment would aid individually cer; Stacey Pippin, and in capacity AFFIRMED. as a his official Williamston officer; David North Carolina individually Cross, and in his official County Deputy capacity a Martin as City Williamston, Sheriff; The Defendants-Appel Carolina, North lees, Pittman, individually and in his Donnie RODGERS, by Tarik K. OF
ESTATE County capacity Man official as through Mi his administrators County, ager Martin North Car Rodg chael and Brenda RODGERS olina; County, North Car Martin ers; Rodgers, parent Michael as of the olina, Defendants. decedent; Rodgers, parent Brenda decedent, Plaintiffs-Appellants, No. 05-1382. Appeals, United States Court SMITH, individually and in his Steve Fourth Circuit. capacity of Police of official as Chief 1, 2005. Argued: Dec. City Police De of Williamston June Decided: Carolina; partment, Keith North
Roach, individually and in his official
capacity for Martin as the Sheriff
WILKINS, Judge: Chief (the Estate Tarik K. Estate) rights civil brought this federal (West 2003), action, § see U.S.C.A. *3 Fourth Amend- claiming violations of the of Tarik with the death ment connection now ap- The Estate Rodgers (Rodgers). grant- court peals a decision of the district summary on the basis of ing judgment, of the defen- qualified immunity, to certain below, For set forth dants.1 the reasons we affirm.
I. Smallwood, ARGUED: Louise Teresa facts, in the pertinent The viewed
Windsor, Carolina; Arling- Robert North Estate, favorable see most Wilson Pennsylvania, Berry, Harrisburg, ton for (4th Cir.2005), 465, Flynn, 429 F.3d Appellants. Gary BRIEF: ON S. Par- April are follows. Mar- On sons, Dixon, Bailey Raleigh, & North Car- County, depu- tin North Carolina Sheriff’s olina; Womble, Davis, Carlyle, Mark Allen Rodgers. ty restraining served a order on Rice, Sandridge Raleigh, & North Car- prohibited Rodgers from com- The order olina, Appellees. for ON BRIEF: K Angela ing girlfriend, into contact with Lawrence, Baltimore, Jameson Maryland, Freeman, and children. their two Parsons, Appellants. Bailey for B. Gavin approximately evening, At 10:00 that Dixon, L.L.P., Carolina, Raleigh, & North house Rodgers drove to Freeman’s Smith, Waters, Appellees S. W.R. M. He drove gunpoint. abducted her at her Cox, Brown, Forney, Hardison, C. E. B. T. area, they to a remote discussed the where & City Cowan of Williamston. resolving their protective order. After dif- ferences, they in consensual engaged sex. WILKINS, Judge, Before Chief Rodgers was his conduct that upset about GREGORY, Judge, and Circuit WALTER evening and aloud to Freeman wondered KELLEY, JR., D. United States District explain how he was himself to going Judge of Virginia, for the Eastern District At their children. one asked sitting by designation. him, Freeman to but she shoot refused. Around drove midnight, by unpublished opinion. Affirmed Chief any police Freeman’s if offi- home to see Judge majority WILKINS wrote the (Although Rodgers cers were had there. opinion, joined. Judge in which KELLEY present warned those Freemаn’s home Judge opinion GREGORY wrote police, not to call the had never- dissenting concurring part part. informed theless been contacted and Unpublished gun- are not had Freeman at opinions binding abducted Rodgers eventually passed a precedent point.) pa- in this circuit. See Local Rule (internal 36(c). trol car and off.” J.A. 93 “took previously against The 1. The claims other defendants. Estate district court dismissed appeal against other claims these defendants and the does those dismissals. omitted). quotation high-speed marks A grabbed Rodgers by Officer Brown chase County ensued that involved Martin shirt to him get out of the car. City Sheriff Walter Farrow and time, did not have but as Williamston, North Carolina officers vehicle, pulling Brown was him out of the Waters, Forney, William Elvie Melanie Rodgers grasped leaned back Cox, chase, and Charles Brown. The yelled firearm. Officer Brown “Gun!” and nearly which until continued 2:00 a.m. on away backed from the vehicle. Officer morning April joined was later Waters heard this and saw McFarland, plainclothes Scott narcot- emerging ers from his vehicle. Officer jurisdiction. ics officer from another weapon,2 Waters did not see a but he engaged officers in the chase were aware observed that had his hand *4 Rodgers had abducted Freeman and Farrow, however, Deputy under his shirt. that he was considered armed and danger- Rodgers did emerge observe from his vehi- ous. right cle with firearm his hand. Offi- deployed police cer Waters the Rodgers dog, which by stopping ended the chase lot, initially engaged abruptly parking Rodgers by in a the arm. Of- causing Officer ficer Rodgers point Waters to crash into the rear of Waters then saw the Rodgers’ (Officer Waters). firearm at him vehicle. Officer Waters exited his vehicle In the seconds, police dog. ensuing with his trained Depu- Officer Wa- Officer Waters and ters dog, mistakenly ty released the which fired weapons. Farrow their Bullets McFarland, biting attacked Officer him on from Officer Waters’ firearm struck leg. times, the left multiple killing ers him. commanding As Officer Waters was the of the surrounding Some events the McFarland, to release Officer shooting captured videotape by were on Rodgers was attempting to exit his vehicle Forney’s patrol camera located Officer door, through damaged the driver’s side recording begins vehicle. The as Officer and the other officers who had been in- Forney approach turns his vehicle to the volved in the chase approaching Forney stopped crash scene. Officer be- Freeman, Rodgers’ vehicle. who was still vehicle, hind Deputy placing Farrow’s thus automobile, in the passenger seat of the Deputy Farrow’s vehicle between the vid- Rodgers saying “holdup” heаrd as he tried eo camera Rodgers’ and Officer Wa- get to out. Id. at 109. had his ters’ vehicles. and, up point, hands at that nothing had However, recording, Deputy them. At 1:50:56 on the Freeman did not notice whether Farrow can seen in center of the weapon, which been be the console, screen, climbing up between his seat and the center the side of his vehicle Rodgers emerged open was still there. As from from behind the driver’s side door. (He car, the trying Freeman could see his left later testified that he was to side, right. stay way police dog.) not his out of the evidentiary dog, 2. The record contains the three items before while concerning Officer Waters' observаtions: the SBI statement indicates that he did not see (SBI) Investigation deployment. State Bureau of statement until Offi- after incident, (at shortly testimony deposition he made after the an affida- cer Waters’ least the record) portion vit sworn in late November and a tran- included in the does not di- script deposition testimony, given rectly topic. of his address this We assume the statement, October 2004. The affidavit indicates that truth of the SBI as that is most Officer Waters saw with a firearm favorable to the Estate. firearm can be seen ground, falls to the Deputy is to the left of Officer McFarland landing a few feet vehicle, leaving on the his hand and ground Farrow’s crouched 1:51:08, Rodgers is on thе away. in his hand. At At with firearm unarmed, 1:51:01, and Officer Wa- ground comes into view and now Officer Waters 1:51:10-11,three more again. screen with fires At left of the ters for- flashes seen from Officer Wa- brings muzzle are it, officers—except weapon. ward a and releases at which ters’ The other few feet Farrow, to use the out of view front of continues Deputy is who Deputy Having away vehicle. of his vehicle as a shield—back Farrow’s released door lying is dog, moves forward a the incident on Office Waters ends. steps appears quite ground being pulled few more be but is still close to but Rodgers. police dog, which is out view evi- dently Rodgers’ leg. has engaged deploys dog, As Officer Watеrs elapsed Rodgers first ap- time from when Because of can be seen. the loca- pears recording on the until fire- video tion of Farrow’s vehicle with re- is no leaving arm is seen his hand more camera, spect the video at first than seven seconds. only through the back and viewable *5 hospital Rodgers transported was to Deputy front of windshields Farrow’s vehi- pronounced and Examination leaning cle. He dead. appears slightly to be forward, body revealed had been shot and his arms are contrasted body. times and against multiple in the head He wearing. the white shirt he is At arm, 1:51:03, right also exhibited bite marks on his Rodgers appears to rise rais- up, hand, abdomen, undisput- thigh. It is ing Deputy his left arm. Farrow and is stand- by ed that shots Officer Waters killed ing on behind the fired ground driver’s side vehicle, Rodgers; Deputy discharged Farrow his door of and Officer McFarland and weapon Rodgers, but did not hit Offi- kneeling is a few feet to the Both left. discharged his weap- officers cer McFarland never weapons have their At drawn. 1:51:04, on. Rodgers’ left arm has come down backward, and he falling evidently is hav- brought The Estate this subsequently ing engaged by been dog. Offi- alleging against claims multiple action standing cer McFarland is now on shooting, other in- officers involved 1:51:06, uninjured right leg. At dividuals, County City and the Martin view, is out of backing Officer Brown is here, of Williamston. As is relevant away, McFarland and Officer has аd- alleged Rodgers’ Estate Fourth Forney
vanced a distance. Officer small by rights Amendment were violated left, comes into view on the behind deployment prior other officers. three deadly the use of force Deputy and Officer Waters. Farrow We 1:51:07, appears again com- address each of these claims below. ing as he toward the officers falls. has Deputy ers moved to the left of Far- II. longer
row’s and is no vehicle obscured moving sideways facing performing it. He Government officials discre- is camera; thus, tionary the video he is to his functions are entitled falling immunity civil right, liability damages the officers. Two muzzle toward extent conduct does not flashes cаn be seen as Officer that “their statutory weapon. As or draws and fires his violate established 180 rights
constitutional
of which a reasonable
alleges
The
the Estate
was violat-
person
ed here is
would have known.” Harlow v.
Fourth Amendment
seizures,
818,
right to be free of
Fitzgerald,
800,
unreasonable
457 U.S.
102 S.Ct.
right that includes
2727,
(1982).
accomplished
seizures
Qualified
involve dog a police of deployment contends objec- always warning is a verbal without Force—Deployment B. Excessive so, cannot bе This tively unreasonable. Dog Police itself, noted Vathekan however. As that the The Estate next contends force claim Amendment excessive Fourth summary in granting court erred district under the reasonableness is evaluated on the Estate’s claim Offi judgment See Vathe- set forth Graham. standard po unreasonably deployed the cer Waters 178; kan, Kopf, 942 see also 154 F.3d warning Rodgers. first lice without Graham). The (quoting F.2d at 267-68 County, George’s v. Prince See Vathekan “requires careful of this test application (“An (4th Cir.1998) at facts and circumstances attention to the unreasonably deployed police tack case, including severity particular each dog in the coursе of a seizure is Fourth issue, suspect whether the of the crime at violation.”). Amendment excessive force safety of threat to the poses an immediate others, he is or and whether the officers has twice addressed the con- This court attempting to actively resisting arrest or stitutionality of a deployment Graham, 490 U.S. by flight.” evade arrest prior warning. without Moreover, “[t]he S.Ct. (4th Cir.1991), Wing, 942 F.2d law embody reasonableness must calculus of deployed police dog officers enforcement fact that officers allowance for the prior warning suspects on two who judg- split-second forced to make are often “extremely pas- in an narrow hiding tense, circumstаnces that are ments—in sage” a shed and a fence and who between *7 uncertain, rapidly evolving—about the This court and thought were to be armed. necessary that in a responsible concluded the officer amount of force that 396-97, not entitled to sum- deployment was Id. at 109 particular situation.” of mary judgment on the basis Thus, cannot be Vathekan S.Ct. 1865. immunity, reasoning provide that failure to than that holding anything more viewed as suspects time for the warning a and deployment at issue in that the unwarned unreasonable, that given surrender was unreasonable. case was and unable to es- they were surrounded facts Applying particular this test to the Vathekan, id. at 268. caрe. See when he de- that faced Officer Waters favorable to light facts viewed most without first ployed police enforce- plaintiff indicated that law that there was no Rodgers, we conclude deployed police dog, ment officer violation. When Offi- Fourth Amendment that he prior warning, into a residence police dog, he had deployed cer Waters broken into. See Vathe- believed had been “Gun!”, Brown shout and he heard Officer kan, at 176-77. This court con- 154 F.3d unreasonable, out Rodgers’ right that hand was doing so was see observed cluded that Garner, view under his shirt.4 These observa- matched.” Tennessee v. 471 U.S. 1, 9, (1985). tions were combined 1694, with Officer Waters’ 105 S.Ct. 85 L.Ed.2d knowledgе Nevertheless, that had kidnapped police may officer employ girlfriend gunpoint, at had led on deadly force when the proba officer “has chase, a high-speed stopped ble cause to believe that the suspect poses abruptly in a manner that caused harm, Officer a threat of physical serious either Waters’ vehicle to collide with to the officer or to others.” Id. At vehicle. the time of deployment, 1694; S.Ct. see v. County Cox Prince Officer Waters was no more than William, (4th Cir.2001). 10 feet away Rodgers. Officer Waters testi- evidence, The record viewed during fied deposition deployed he Estate, most favorable to the suppоrts without warning because “I was conclusion that Rodgers initially when close and there was no cover between vehicle, emerged from his his hands were [Rodgers] and I. And I didn’t want to up, they empty. This much can any draw myself more attention to than I reasonably be inferred from Freeman’s had to.” J.A. 285. Under these circum- testimony and from the testimony of Offi- stances, say we cannot that Officer Waters’ cer Brown. willWe therefore assume that judgment was an unreasonable one. We at that point, deadly the use of force would therefore conclude that there was no have violated the Fourth Amendment. Fourth Amendment violation the man- However, deadly no force was used then. nеr Officer Waters the police Rather, the uncontradicted record evi- dence establishes that at some after initially car,
Even if Officer deployment emerging from the police dog firearm, without prior warning acquired his by reaching did either Amendment, (as violate the Fourth the unlaw back grabbing into the car and it Offi- fulness of his conduct was not es testimony indicate), cer Brown’s would or (such tablished on April some other means removing Vathekan stand at most for principle from the pants, waistband of his an infer- the Fourth Amendment is violated ence consistent testimony). with Freeman’s when an officer who no immediate Further, the uncontradicted record evi- faces threat deploys without prior dence indicates that Officer Brown shouted warning. above, For the reasons set forth and, critically, “Gun!” that Rodgers waved was the case here. the weapon pointed around and it directly Waters and Farrow. Force—Shooting
C. Excessive Indeed, Officer testified that The Estate next Rodgers point contends Of saw the firearm at him after ficer Waters used excessive force in engaged by had been *8 shooting Rodgers. “The intrusiveness of When Officer presented Waters was deadly circumstances, seizure means of force is un- with these he also knew Citing 4. Freeman’s only statement she viewed hands for a brief deposition testimony, and her period bеgan emerge the Estate as- as he to from his vehi- ''compelling serts that there is testimony evidence that cle. The uncontradicted of officers Rodgers unarmed ... had his hands in outside the vehicle—who observed viciously the air when he was attacked when Freeman could not—and what can be Appellants videotape Rodgers' K-9 Officer.” Br. of at 27. setAs seen on the indicate that I.A., however, forth in Part Freeman's state- hands were not raised in surrender when the deposition testimony ment and deployed. establish that was
183 contrast, In consid- estranged had his Id. Waterman we that abducted officers fired at gunpoint, at had led officers on a ered situation which girlfriend chаse, had accelerated his to- lengthy high-speed suspect caused he vehicle Waterman, them. See pursuing past of the vehicles to crash into ward then one at held that officers therefore hold that Officer 393 F.3d 474-75. We his own. We deadly objec- not exceeded bounds continu- use force was constitutional them, passed at tively ing of the circum- to fire after the vehicle light unreasonable should known to him at the time of the which the officers knew or stances shooting. have known that the immediate threat id. at passed. harm had See 482. contends, The Estate further how controlling that Elliott is We conclude ever, deadly if that even the use of force that videotape here. The establishes justified when was Officer Waters fired the ground, fell to the with his arms shots, justification that initial ended when waist, vicinity in the of his than no later to ground. disagree. fell We time, Rodgers appears 1:51:08. At this The reasonableness of an officer’s actions slightly thus up, presenting be curled possessed by rests on information top or back head to of his Officer Waters. officer at the that force is moment em later, 1:51:10, Only two seconds Leavitt, ployed. See Elliott v. 99 F.3d Impor- fires three more shots. (4th Cir.1996). Therefore, justi 643 “force tantly, Rodgers’ firearm left his although fied at the of an encounter beginning is not fell, nothing hands as the record justified justifica even if the seconds later that indicates that Officer Waters knew tion for the initial force has been eliminat weapon, dropped had and thus Batton, ed.” v. Waterman 393 F.3d no longer was a threat. We conclude that (4th Cir.2004); Hopkins see Anda evidence, on this a reasonable factfinder Cir.1992) (9th ya, 958 F.2d (per could conclude Officer Waters curiam) (holding deadly that second use of acting was the neutralization of a ensure force was exigen unreasonable when “the deadly threat. cy of the situation dramatically” lessened force). deadly
after the first use of volley Even if the second of shots Elliott, unconstitutional, In we assessed the reasonable- were unconstitution deadly by police ness of the use of ality clearly force was by no means established placed suspect, April 15, officers who with required as of 2002. Waterman back, hands cuffed in a behind his us to it was decide whether estab Elliott, cruiser. See 641-42. lished in 2000 that officer November later, Moments may deadly the officers observed the force use the seconds them, suspect pointing a firearm at after a threat had serious abated. See seconds, Waterman, they fired in a matter of shots F.3d at con 482-83. We suspect. killing the id. at 642. cluded although See We other circuits had rejected prior the contention that the number of reached this conclusion to the rele time, shots firеd use of rendered the force ex- vant the Fourth Circuit had not. cessive, noting shooting uncertainty took id. at place See 483. existing in a matter of id. at of the law at the seconds. See time of incident, multiple “That Bred shots were does not we held that the unconstitutional *9 suggest ity the in the mindlessly officers shot as use of force seconds after sought much they clearly indicates that a threat has abated was not estab deadly ensure the elimination of a threat.” lished. Because the on this See id. law George’s County, did not become clear until v. Prince (4th Cir.1998). decided, when majority recog- Waterman was we conclude 178 As the nizes, if that even Officer Waters had violated court this has twice addressed the Constitution, the releasing police dog he would be entitled to issue of whether qualified immunity issuing on the basis that the a prior warning constituted id.; unconstitutionality of his actions was not deployment. Kopf unreasonable See (4th Cir.1991). Wing, established at the time of the inci- v. In F.2d 265 cases, dent.5 both this court concluded that it did. case, In undisputed this it is that Officer III. police dog against Waters the This case is no a tragic doubt one. It is issuing decedent without a prior warning. possible, contends, as the Estate however, majority, distinguishes attempting was to surrender by circumstances faced in engaged by police dog when he was this case from those faced the offiсers and shot at if officers. Even this in Kopf, apparently Vathekan and on the case, however, was the the circumstances Waters, grounds that in unlike the officers presented to the officers at the outset of cases, those faced an imminent threat of kidnapping, the encounter—the high- Op. Accordingly, harm. See at 182. chase, speed wielding of a firearm and majority concludes that it was not unrea- pointing it at the officers—gave them sonable for deploy Waters to with- probable otherwise, cause to believe and to view, however, prior warning. my out In deadly use force to eliminate a serious and Waters did not face an imminent threat immediate threat to their fives. We there- and, thus, Rodgers, I cannot mean- fore affirm the district court. ingfully distinguish the circumstances of this case Kopf from those of
AFFIRMED. majority Although provides a brief GREGORY, Judge, concurring Circuit summary of the facts of I believe in part dissenting part: that a complete more recitation is re- agree I majority’s with the conclusion quired. receiving After report radio did not Farrow seize robbery, police an armed officers initiated meaning within the of the Fourth Amend- high-speed pursuit the vehicle Accordingly, ment. I concur that this offi- suspects riding. Kopf, which the were qualified immunity. cer is entitled to thereafter, Shortly F.2d at 266. the sus- However, I because cannоt conclude as a pects abruptly stopped their car and fled matter of law that Officer deploy- on foot. Id. After a cursory search of the police dog objectively ment of his was rea- handgun vehicle failed to uncover the used circumstances, sonable under the I dissent robbery, reasonably the officers con- majority’s holding from the this de- suspects likely cluded that fendant is also immu- qualified entitled to Although apprehended armed. Id. officers nity. suspects during one of three the ensu-
“An unreasonably deployed ing pursuit, suspects attack foot two were able to the course of a seizure is a conceal themselves behind a shed bаckyard neighborhood. Fourth Amendment violation.” Vathekan of a residential against City of our conclusion that all of the of Williamston necessari- (noting ly Kopf, officers F.2d at 269 involved in the incident are entitled to fail. See of, immunity, municipal liability but nar- the Estate's claims "is derivative than, ’). against County Martin Sheriff Keith Roach rower the officers” *10 shirt, his under out of view right hand was “was an hiding place suspects’ The Id. (Waters) to the was so close he and that the passage between extremely narrow to choice but had no that he the decedent Id. After and a fence.” shed’s wall Op. warning. See dog his without deploy and sur- these defendants officers located light in the Viewing the evidence a at 182. shed, deployed one officer rounded the however, decedent, I the favorable to a most without dog passageway into the on majority’s reliance that the believe the officers entered forewarning. Before misguided. is severely these assertions dog passageway, the the at 267. suspects. See id. mauled the notes, Wa- First, majority Officer as the versions distinctly different gave ters two of the district reviewing propriety the hand before he Rodgers’ in in fa- of what he saw summary judgment grant court’s of In his initial SBI state- the deployed officer who had vor of the shooting, after the Wa- shortly taken was not ment concluded that he dog, this court Rodgers’ not sеe that he did immunity. ters asserted to Notwith- entitled hand, may up have been that “it that but officer’s reasonable belief standing the in Contrarily, J.A. 345. armed, con- under his shirt.” the court suspects affidavit, later claimed a provide failure to sworn cluded that the officer’s (and [him] “advanced toward to that opportunity therefore an surrender) threatening in handgun drawn dog was with his deploying before inconsis- patent 135. The id. at 268. As manner.” J.A. unreasonable. See un- tency to this conclu- these two statements majority recognizes, central between finding credibility that the sus- asser- sion was this court’s dermines the Waters’ to es- posed were surrounded and unable imminent threat pects tions as to the cape. See id. the decedent. majority Second, relies on Officer Waters’ and the other Officer Waters’ video, leading up of the circumstances
knowledge actions, on the portrayed as officers’ as well as his high speed pursuit to the did provide strong evidence regarding perceptions his statements being to gun prior in his hand not have pursuit 1:51:01, once that ended to con- at dog. Beginning engaged reasonably acted de- clude that Waters Waters, drawing gun, his without Officer warning. ploying his parking lot rushing across the can be seen However, record, when the evidence Rodgers is to a few feet of where within viewed most favorable him, and dog towards standing, hurling deсedent, indistinguish- a scene portrays with- advance until he is continuing then faced the officers able from the one later, Four Rodgers. in inches of seconds Kopf. Waters, 1:51:05, is now who watching the in front of standing of this incident indicates that
The video attack, away from begins to back positioned officers had themselves several (and dog). Officer Waters Rodgers ex- parking around the lot before 1:51:06, when gun until does not draw Thus, Kopf as in ited his vehicle. desperately Rodgers, who at this surrounded and unable decedent was attempting to extricate However, majority concludes escape. Had his waistband. leg, reaches towards Waters, unlike the officers his fellow officer actually heard harm. In so Waters an imminent threat of
faced around to see or turned majority points to as- shout “Gun!” doing, the him, yell Rodgers pointing he heard someone sertions claimed, officer that the is doubtful “Gun!”, later that he observed *11 approached would have in in deployment and stood front and would hold that Rodgers in such a vulnerable manner. is not entitled to immunit Waters Further, the video y.* shows neither Offi- Deputy cer McFarland or Farrow has his notes, majority aptly As the this is a gun Rodgers raised at as Officer Waters I, however, tragic join case. cannot him dog. rushes towards with the Officer majority concluding in ac- McFarland, ground who is crouched on the in bringing jus- tions about this enсounter hand, gun
with his his does not tified Officer subsequent response. raise until Waters Ultimately, viewing the evidence in the (1:51:03), the dog releases decedent, light most I favorable gun Farrow does not draw and aim his jury believe a could conclude that Rodgers until five seconds after McFar- got empty out of his vehicle with hands (1:51:08). land This is further evidence attempt to surrender. Although it is gun did not have a in his undisputed Rodgers eventually drew a prior dog. hand to Waters’ release of the gun, jury reasonably could find that he Finally, Waters’ contention that he was by did so after he was attacked so close to that he had no choice then, dog—and only desperate at- deploy but to dog warning without temрt to defend that attack. But for Offi- belied previous his actions and state- cer Waters’ unwarned deployment above, ment. As noted the video shows dog, tragedy may this have been averted. advancing parking Waters across the lot to I respectfully in part. dissent within two or three feet of Rodgers before Further, releasing ini- that,
tially asserted in his SBI statement high speed while the pursuit was still progress, he had radioed the other officers
to warn them that deploy he intended to dog against pursuit once the
ended. See J.A. 344. This statement fur- ther undermines Waters’ claim that he America, UNITED STATES of split-second made a deploy decision to Plaintiff-Appellee, dog proximity based on his close ers. ALSTON, D, Darrell a/k/a sum, portrays the video a scene Defendant-Appellant. dog where a officer No. 05-5214. against without suspect who was who, completely Appeals, surrounded and as evi- United States Court of actions, denced own Fourth officers’ Circuit. gun
not drawn his or otherwise endan- Submitted: June 2006. gered officers’—safety. his-—or his fellow Decided: June I, therefore, conclude that Officer Waters’ deployment this case is not
readily distinguishable from the unlawful
* deploying giving case occurred. The unlawfulness of the events rise to this Thus, prior warning in circumstances was I would also conclude that the decedent these defeating Kopf, established our decision in has satisfied the second element qualified immunity years which decided eleven before as to Officer Waters. this court