Gеorge COOPER, Sr., Plaintiff-Appellee, and George Cooper, Jr., Plaintiff, v. James SHEEHAN; Brian Carlisle, Defendants-Appellants, and Brunswick County Sheriff‘s Department; Sheriff Ronald Hewett; David Crocker; Gene Caison; Kevin Holden; John Ingram, Defendants.
No. 13-1071.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 20, 2013. Decided: Nov. 7, 2013.
735 F.3d 153
Affirmed by published opinion. Judge KING wrotе the opinion, in which Judge WILKINSON and Judge WYNN joined.
KING, Circuit Judge:
Late in the evening of May 2, 2007, George Cooper, Sr., was alerted to the sound of unknown persons outside his mobile home in rural Leland, North Carolina. Lowered shotgun in hand, Cooper stepped out onto his back porch to investigate. Seconds later, he was struck by gunfire. The shots were fired by Brunswick County deputy sheriffs James Sheehan and Brian Carlisle (the “Officers“), who were investigating a reported domestic disturbance on Cooper‘s property. Cooper survived, and he subsequently initiated this civil action in the Eastern District of North Carolina, alleging claims under
The Officers moved for summary judgment, which was granted in part and denied in part. See Cooper v. Brunswick Cnty. Sheriff‘s Dep‘t, 896 F.Supp.2d 432 (E.D.N.C.2012). In pertinent part, the district court denied the Officers’ assertions of qualified and public officers’ immunity from, respectively, Cooper‘s federal and state excessive force claims. Invoking the collateral order doctrine, the Officers
I.
A.
On the day of the shooting, Cooper and his cousin Paul Herring spent several hours repairing the floor of a nearby relative‘s home.1 Upon finishing the work, Herring agreed to join Cooper for dinner. At around 9:00 p.m., Hеrring arrived at Cooper‘s residence, and the two men enjoyed the evening in the backyard, talking about “[f]ootball games [and] old fights.” Cooper, 896 F.Supp.2d at 436.2 Cooper may have enjoyed the mid-spring evening a little too much, smoking marijuana laced with cocaine, and chasing “three or four beers” with a pint of brandy. Id. at 437. Afterward, the men retired to Cooper‘s mobile home to prepare the meal.
Just after 11:00 p.m., a neighbor called 911 “to report that an altercation was occurring at the Cooper property.” Cooper, 896 F.Supp.2d at 437 n. 2. The 911 dispatcher relayed the call to the Officers, reporting that the disturbance “sound[ed] like two males screaming at each other.” Id. at 437. The dispatcher did not indicate whether the men were armed or otherwise dangerous. Around 11:30 p.m., the Officers arrived in the vicinity of Cooper‘s mobile home, Carlisle driving a standard patrol car and Sheehan in аn unmarked vehicle. Neither of the Officers activated his blue lights or siren. As Carlisle approached in his vehicle, he “could hear screaming . . . coming from [the] proper-
The Officers parked on the grass at the edge of Cooper‘s property and approached the mobile home on foot. They could hear what sounded like a heated argument inside, but could not make out any words. Carlisle also heard “screaming” and “people walking around inside the [mobile home].” Cooper, 896 F.Supp.2d at 438. To alert the occupants of the Officers’ presence, Sheehan “tapp[ed] on the window” with his flashlight, but neither of the Officers announced his presence or identified himself as a deputy sheriff. Id.
In response to the sound at his window, Cooper uttered some obscenities, which the Officers heard. Cooper then peered out the back door (the mobile home‘s primary entrance), but saw nothing. Cooper called out for anyone in the yard to identify himself, but no one responded. Electing to venture outside to investigate the noise, Cooper retrieved the twenty-gauge shotgun he kept by the door. With the butt of the firearm in his right hand and its muzzle pointed toward the ground, Cooper “opened the back door and took two or three steps on to his darkened porch.” Cooper, 896 F.Supp.2d at 437. By that time, the Officers had progressed to an adjacent area and were advancing toward the porch. Within a few feet of the porch steps, Sheehan stumbled over a concrete
Reacting to the sight of Cooper and his shotgun, the Officers drew their service weapons and commenced firing without warning.4 Cooper felt two bullets hit his body and then turned toward the mobile home‘s door. The Officers continued shooting, and Cooper felt himself hit “a couple of more times” before collaрsing to the ground. Cooper, 896 F.Supp.2d at 439. The Officers discharged between eleven and fourteen rounds, and Cooper was hit five or six times, incurring wounds in the elbow, ankle, back, buttocks, and stomach.
B.
On January 29, 2010, Cooper filed this lawsuit, naming as defendants the Brunswick County Sheriff‘s Department, the current and former Sheriffs, plus several deputies, including the Officers.5 The Complaint included eighteen counts, alleging violations of both state and federal law.6 The claims against the Sheriff‘s Department were dismissed early in the litigation. Following discovery, on February 1, 2012, the remaining defendants moved for summary judgment. In addition to various defenses, the Officers asserted qualified immunity from Cooper‘s federal claims, as well as public officers’ immunity from Cooper‘s state law claims. By its September 27, 2012 decision, the district court granted summary judgment to all defendants on most counts. The only claims reserved for trial were asserted against the Officers—Cooper‘s Fourth Amendment excessive force claims and his state law assault, battery, negligence, and gross negligence claims.
In allowing those claims to go forward as to the Officers, the district court specifically rejected their assertions of federal and state immunity. The court relied heavily on our unpublished opinion in Pena v. Porter, 316 Fed.Appx. 303 (4th Cir. 2009). There, a pair of officers searching for a fugitive came to Pena‘s door late at night, but did not identify themselves. Pena awoke to the sound of his dogs barking and, with no knowledge that the police were outside, opened his door while holding a rifle pointed toward the ground. One of the officers saw the firearm and immediately fired two shots that struck Pena. Pena sued under
Finding Pena‘s facts analogous and its reasoning persuasive, the district court here concluded that ”Pena supports [Cooper‘s] argument” against the Officers’ claims of qualified immunity. Cooper, 896 F.Supp.2d at 446. “Accepting [Cooper‘s] account as true,” the court resolved that “the totality of the circumstances [did] not establish that [the Officers] had рrobable cause to believe that [Cooper] was dangerous when [he] stepped onto his unlit porch at 11:30 p.m., holding a shotgun pointing down, asked who was there, heard nothing, and then was shot a few seconds later.” Id. The court acknowledged that “if [Cooper] had . . . stepped onto a dark porch armed despite knowing law enforcement officers were approaching his door, that certainly could affеct a reasonable officer‘s apprehension of dangerousness.” Id. at 447. Critically, however, the court determined that “no reasonable officer could have believed that [Cooper] was aware that two sheriff deputies were outside” when he stepped onto the porch. Id.
Thus, “[a]bsent a threatening act, like raising or firing the shotgun,” the district court ruled that the Officers’ decision to use deadly force was not objеctively reasonable. Cooper, 896 F.Supp.2d at 447-48. Moreover, after reviewing the applicable legal principles, the court observed that Cooper‘s “Fourth Amendment right to remain free from the unreasonable use of deadly force was clearly established” at the time of the shooting incident. Id. at 448. On the basis of those conclusions, the court decided that the Officers were not entitled to qualified immunity from Cooper‘s
II.
Because this is not a typical final order appeal, we first satisfy ourselves of our jurisdiction in this proceeding. See Mort Ranta v. Gorman, 721 F.3d 241, 245 (4th Cir.2013). Absent jurisdiction, we would be constrained to dismiss the Officers’ appeal, regardless of its merits.
Pursuant to the collateral order doctrine, we are authorized to review an appeal from a district court‘s deniаl of qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), unless the order determined only a question of “evidence sufficiency,” see Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Put another way, “we possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiff‘s version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established law accepting the facts as the distriсt court viewed them.” Winfield v. Bass, 106 F.3d 525, 530 (4th Cir.1997) (en banc).8
III.
A.
The Officers maintain that the district court erred in denying them qualified immunity from Cooper‘s excessive force claims under
Thе Complaint alleges that the Officers violated Cooper‘s constitutional rights through the use of excessive force. See Waterman v. Batton, 393 F.3d 471, 476 (4th Cir.2005) (explaining that seizure effectuated by excessive force contravenes Fourth Amendment). We have instructed that “[w]hether an officer has used excessive force is judged by a standard of objective reasonableness.” Clem v. Corbeau, 284 F.3d 543, 550 (4th Cir.2002). As further explained in Clem, “recognizing that police officers are often forced to make split-second judgments in circumstances
A reasonable officer is entitled to use deadly force “[w]here the officer has probable cause to believe that [a] suspect posеs a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Nevertheless, as the Officers concede, the mere possession of a firearm by a suspect is not enough to permit the use of deadly force. Thus, an officer does not possess the unfettered authority to shoot a member of the public simply because that person is carrying a weapon. Instead, deadly force may only be used by a police officer when, based on a reasonable assessment, the officer or another person is threatened with the weapon. See id. at 11-12.9
The Officers rely on several decisions concluding that a police officer was entitled to qualified immunity after shooting an individual whom the officer mistakenly believed to be armed. In Anderson v. Russell, 247 F.3d 125 (4th Cir.2001), for example, the officers ordered a detainee to his hands and knees, and then shot him when he reached for a bulge in his waistband that turned out to be a radio. In an earlier decision, McLenagan v. Karnes, 27 F.3d 1002 (4th Cir.1994), a bystander was shot as he ran toward a police officer moments after the officer learned that an armed arrestee was on the loose in the area. And in Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991), an officer shot a suspect who ignored commands to show his hands before turning quickly toward the officer with what turned out to be only a beer bottle in a clinched fist. If deadly force was justified in such circumstances, the Officers contend, it is even more appropriate in this setting, where Cooper wielded a shotgun in plain view. Instead of supporting the Officers’ contentions, however, those decisions emphasize why the use of deadly force against Cooper was not constitutionally permissible: in each of the above scenarios, the objective basis for the threat wаs real, but the gun was not. Here, the shotgun was real, but—taking the facts as the district court viewed them—the threat was not.
When the Officers fired on Cooper, he stood at the threshold of his home, holding the shotgun in one hand, with its muzzle pointed at the ground. He made no sudden moves. He made no threats. He ignored no commands. The Officers had no other information suggesting that Cooper might harm them. Thus, the facts fail to support the proposition that a reasonable officer would have had probable cause to feel threatened by Cooper‘s actions.
Importantly, the Officers never identified themselves—even when asked by Cooper. If the Officers had done so, they might have been safe in the assumption that a man who greets law enforcement with a firearm is likely to pose a deadly threat. See Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.1996) (“No citizen can fairly expect to draw a gun on pоlice without risking tragic consequences.“). Instead,
With respect to the second part of the Saucier analysis, the precedent discussed herein amply demonstrates that the contours of the constitutional right at issue—that is, the right to be free from deadly force when posing no threat—were clearly established at the time the Officers shot Cooper. Accordingly, the district court properly denied, at the summary judgment stage, the Officers’ invocation of qualified immunity from Cooper‘s
B.
The Officers also seek relief from the district court‘s denial of public officers’ immunity with respect to Cooper‘s state law tort claims. Under the collateral order doctrine, we possess jurisdiction to review the denial of claims for state law immunities that provide insulation from suit, as opposed to those that merely protect an official from liability. Seе Gray-Hopkins v. Prince George‘s Cnty., Md., 309 F.3d 224, 231 (4th Cir.2002). Indeed, pursuant to the collateral order doctrine, we have exercised appellate jurisdiction to review a pretrial order denying North Carolina public officers’ immunity. See Bailey v. Kennedy, 349 F.3d 731, 738 (4th Cir.2003).
As the district court properly explained, “[t]he merits of [Cooper‘s] assault, battery, negligence, and gross negligence claims are tied to the reasonableness of [the Officers‘] actions.” Cooper, 896 F.Supp.2d at 454. That ruling was predicated on the proposition that, under North Carolina law, public officers’ immunity is unavailable to a police officer who acts with malice. See Bailey, 349 F.3d at 731; see also Grad v. Kaasa, 312 N.C. 310, 321 S.E.2d 888, 890 (1984). An officer acts with malice when he “does that which a man of reasonable intelligence would know to be contrary to his duty,” i.e., when he violates a clearly established right. Bailey, 349 F.3d at 742. And, at the time of this incident in May 2007, it was clearly established that a North Carolina law enforcement officer could use deadly force only when reasonably necessary to defend against “the use or imminent use of deadly physical force.”
Pursuant to the foregoing, we reject the Offiсers’ immunity claims and affirm the district court.
AFFIRMED.
ROBERT B. KING
UNITED STATES CIRCUIT JUDGE