Hensley Ex Rel. North Carolina v. Price

jury pursued to the criminal its as role and adversary to of the exclusion its role as Suttles, Bobby Individually R and in his trial.” United States v. just of a architect Capacity Official as former Sheriff of Jernigan, 1056-57 Haywood County; Doe, #1; John John 2007). In such circumstances—and in Doe, #2; Larry Bryson; David Mitch of conflicting and unresolved facts ell, Defendants. bearing materiality the Roberts No. 16-1294 materials—the district court should not Brady claim disposed Petitioner’s of Appeals, United States Court holding evidentiary without hearing. Fourth Circuit. VACATED, PART, IN RE- AND Argued: March MANDED Decided: November

Amended: November HENSLEY, Ann Teresa as relator ON

BEHALF OF the State of NORTH

CAROLINA, and as Administrator Hensley; Estate David Lee

H.H., minor, by through her friend;

parent and next Fer Rachelle

guson, Individually, and as relator Carolina,

behalf State of North

Plaintiffs-Appellees, PRICE, Individually Scott

Michael Capacity

in his Official as Lieutenant Haywood County Depart Sheriffs

ment; Beasley, Keith Allen Individu

ally Capacity his Official

Deputy Haywood County Sheriff of Department;

Sheriffs American West Company, Corporate

Insurance Sure

ty on the official bond the Sheriff Haywood County; The Ohio Casu

alty Company, Corporate Insurance

Surety on the official bond of the Haywood County,

Sheriff of Defen

dants-Appellants, SHEDD, DUNCAN, AGEE,

Before Circuit Judges. published opinion. Judge

Affirmed Agee opinion, in wrote the which Judge n Duncan joined. Judge Shedd wrote a dissenting opinion.

AGEE, Judge: Circuit Deputies Michael Price Keith Beas- ley (collectively, the “Deputies”)—both em- ployed by Haywood County, North Carolina, Department—shot Sheriffs killed David outside his home morning of August plain- tiffs—Hensley’s daugh- widow and two ters—brought against suit both their capacities individual and official under 42 U.S.C. Car- and North olina law the United District States Court, for the Western District of North Deputies Carolina. The asserted federal qualified immunity and related state de- summary fenses in a motion for judgment, which the district For court denied. follow, reasons that we affirm the district judgment.1 court’s I.

A. interlocutory appeal raising On an qualified immunity, Court issue Houghton Patrick Flanagan, light CRAN- views facts in the most favorable FILL, HARTZOG, LLP, SUMNER & plaintiffs. Pegg Herrnberger, Charlotte, Carolina, Appellants. North for summa We McLean, III, Lyway Russell MCLEAN rize the facts viewed as fol FIRM, PA, lows, Waynesville, LAW North Car- recognizing the forecast olina, Appellees. for markedly contrary. evidence ed); Cochran, plaintiffs 1. The N.C.App. also American In- sued West White (2013) Casualty (noting surance Co. and The Ohio Insurance that the sheriff S.E.2d Co., parties appeal. surety joined which are only also to this The be "where the sued cases). companies collecting party”; insurance concede that as a Because we law, plaintiffs’ denying North Carolina claims affirm court's order the district suit, against them immunity rise and the claims fall with also affirm against Deputies. summaty judg- generally See Gen. N.C. denial court’s § (requiring Casualty. Stat. 162-8 sheriffs to be bond- ment to West American and Ohio and shot and ties vehicles exited their Deputies2 respond- August In killed at Hens- him. call disturbance to a domestic ed pair 6:15 a.m. When the ley’s home around B, cars in the front

arrived, parked their facing vehicles remained yard and Ann plaintiffs—Teresa July thereafter, Shortly porch. the home’s wife), capacity in her Hensley (Hensley’s daughter, Fer- Rachelle Hensley; his older estate; Fer- as administrator H.H., daughter, minor guson; and his against suit guson; H.H.—filed porch home and onto out walked offi- individual and both- their handgun. together. Hensley held court. capacities cial the district handgun, but noticed Deputies' claims complaint asserted operative action—-they announced neither took no for the violation against Hensley drop nor presence asked right to be Hensley’s Fourth Amendment Instead, as gun. watched seizure, as en- free from unreasonable Ferguson and briefly struggled with both § As relevant U.S.C. forced handgun. HS, striking'Ferguson with supple- here, complaint also asserted ended, After that altercation law, North Carolina mental claims under porch off walked watched (2) (1) assault; negligent inflic- including: yard them. into the When distress, (“NIED”); and of emotional tion Hensley looked back at yard, reached (3) death, to N.C. Gen. wrongful pursuant According to daughters porch. sought plaintiffs, 28A-18-2.3 The Stat. pleadings proffer of evi- plaintiffs’ damages. punitive compensatory both dence, handgun still held the ' Deputies moved discovery, After ground as he pointed it's at the muzzle arguing judgment, summary the" stairs and descended walked immunity were entitled Deputies. toward the § 1983 individual-capacity plaintiffs’ the events, Throughout this series of Hens- rea- acted ground on the claims acknowledge ley Deputies and the did They also using deadly in force. sonably each presence. other’s never public entitled contended gun Deputies raised un- immunity official and related defenses any overt them. For made threats toward plaintiffs’ on North Carolina law der him part, their never ordered assault, NIED-, and capacity individual any drop type or issued stop, Finally, Depu- wrongful death claims. of that nei- warning. The concede that, their if the court resolved argued ties Hensley. spoke ther of them ever them, the immunity favorably defenses a capacity claims failed as plaintiffs’ official Shortly descended .after of yard, Depu- matter law. into the and walked jointly complaint also asserted additional Deputies' The conduct 2. We refer to the constitution, under the Carolina throughout opinion claims North here because law tort of intentional well as for the state plaintiffs them as one treat actor. The plaintiffs' of emotional distress. infliction state constitu- Voluntarily abandoned original jurisdiction 3.' The district court granted the court tional claims. The district § claim 28 plaintiffs' 1983 over the plaintiffs’ summary judgment on the jurisdic- supplemental § U.S.C. 1331. It had distress infliction of emotional law intentional plaintiffs’ tion each of state over appeal. in this at issue § Neither claim is claim.1 claims under U.S.C. court district entered order de- A.. Deputies’ nying summary motion This Court reviews the district judgment on the issue of qualified immuni- court’s qualified of immunity denial de ty, and concluded that: novo, taking all light the facts most legal question. is [T]he whether [the] here, favorable to the non-moving party,, give [plaintiffs’ can forecast evidence plaintiffs. Pegg, 845 F.3d at 117. As a practical matter, rise to a inference that the reasonable this means that the Court [Djeputies objectively probable “acceptfs] lacked the facts as.the district court [Hensley] posed cause to a when it believe articulated them determined summary judgment whether physical threat serious harm to them. was appropri ate, whether, and then ... Taking determine^] evidence in the light most facts, based on those person reasonable favorable to the .... a [plaintiffs, rea- [Deputies’] position be have jury sonable could conclude that [they] acting lieved that w[ere] conform objective [Deputies] upon had no basis ity. clearly established law at which to use could base a decision time.” Id. also We against review.the [Hensley]. denial public immunity, official and other state Suttles, 763, F.Supp.3d v. law Bailey de novo. See v. defenses Kenne (W.D.N.C. 2016), The court also district dy, 2003). rejected public official immu nity defense and other on defenses state B, ground. the same Id. at 766-67. reviewing denial sum timely appeal. noted We mary judgment qualified immuni based jurisdiction pursuant U.S.C. ty, whether, may only consider § 1291 order collateral doctrine. undisputed facts and the facts considered Bass, 528-29 Winfield plaintiffs, most favorable to the (“To 1997) extent an order defendants violated established rejecting governmental court Shreve, law. See Iko 233- immunity official’s turns defense In this procedural pos question law, it is a final decision ture, may not credit defendant’s evi meaning within under the dence, evidence, weigh or resolve fac doctrine[,]”). generally collateral order See disputes tual the defendants’ favor. For Cohen v. Indus. Corp., Loan Beneficial ,we example, may not take as true the 337 U.S. 93 L.Ed. 1528 Deputies’ once Hensley assertion that (1949). stepped porch off the he had the muzzle of gun pointed the them in a “shoot-

II. from-the-hip” position. Similarly, we Deputies arguments raise two accept not their contention that when First, appeal. the' contend that dis- Hensley stepped initially the onto he denying trict court erred in them pointed jury the at them. aWhile immunity plain- from suit allowing the by well could believe evidence forecast Second, § 1983 claim to proceed. tiffs’ Deputies, light in we take facts argue that court plaintiffs favorable to the to deter most denying erred in questions their mine application applicable of law and defenses, North state ignore any contrary Carolina law factual claims.4 See polar opposites. 4. We note the forecast most of relevant evidence in case is at 511, 528-29, viola Forsyth, who commit constitutional 472 U.S. officers v. Mitchell (1985) (ob- who, clearly 2806, tions estab but 86 L.Ed.2d 105 S.Ct. law, immunity reasonably believe that “question of lished serving that Henry were v. Pur underlying their actions lawful.” the merits of the separate (en 524, 2011) nell, interlocutory 652 F.3d [an for purposes action banc). doctrine] the collateral order appeal under con- reviewing must though a court

even set two-step process Under the allegations factual plaintiffs sider the v. Supreme by out Court Saucier issue”); immunity Pegg, 845 resolving Katz, 533 U.S. 121 S.Ct. at 117. F.3d (2001), may ask “whether L.Ed.2d 272 we Henry, III. a constitutional occurred.” violation at 531. If conclude that a F.3d we A. occurred, violation constitutional has Deputies’ qualified first turn We right violated then examine “whether plain- to the argument related immunity clearly right Id. A established.” claim. tiffs’ 1983 “clearly contours established” when “its offi sufficiently clear a reasonable

are cial that what is do would understand right.” Cooper, ing 1983 “creates cause violates that Section (internal who, quotation un any person acting at 158 alteration and against action omitted). law, right Although may exercise abridges of state marks color der determining or laws of our discretion which arising under Constitution first, Sheehan, Pearson Cooper prongs analyze 735 two the United States.” Callahan, 223, 236, 153, 158 In the case at U.S. (2009), bar, have plaintiffs alleged have 172 L.Ed.2d therefore, raise—and, Fourth violated failed waived—any argument right to from unrea free be Amendment not See though plain issue was established. Fed. seizures. Even sonable (“[T]he violation, 28(a)(8)(A) argument R. P. alleged App. tiffs have constitutional contain conten quali appellant’s are ... must ... “entitled to invoke them[.]”); mere tions Ed immunity, which is more reasons for fied than Goldsboro, liability; immunity City defense it is wards v. 1999) itself,” (noting requirements. 241 n.6 failure suit meet Id.; Mitchell, Rule abandon comply U.S. at 28 results see also “Qualified immunity appeal).5 we exam protects Consequently, ment S.Ct. 2806. Indeed, undisputed appellant parts which the if the evidence the record on 28(a)(8)(A) App. (emphasis Deputies, they likely be relies.” Fed. R. forecast would P. However, added). pigs, qualified immunity. Appellate "are like entitled to courts summary hunting the state of the record at the in briefs.” is not for truffles buried United Dunkel, 955, (7th stage. judgment 927 956 Cir. States v. F.2d curiam). 1991) Similarly, job (per is not our through argu- disagrees analy- wade the record and make The dissent with our waiver "to Dissenting Op. City party.” the Rules for either Friedel v. sis. See II.B.l. But ments Madison, of (7th 1987). 965, quite 832 F.2d 969 Cir. Appellate “[a Procedure are clear: Here, argument opening contain ... the brief contains section] brief’s must by development required the appellant's reasons none of the rule. contentions and the [the] them, argument "clearly estab- no the for to the authorities and It contains on citations

581 only prong, ine the first Saucier That inquiry “whether asks: when view ing in the facts most favorable to a constitutional violation occurred.” plaintiffs, Deputies did the violate prong qualified immunity prong qualified lished” of the test. could raise the second remand, actually apply- It contains no citation to cases immunity again test on which ing "clearly prong construct, however, established” appeal. could then That qualified immunity test. And it contains no operation contravenes the of the mandate citations to record to indicate "specific applica- rule. The mandate rule is a Deputies preserved argument below. tion of law case doctrine” that tacitly acknowledges Depu- The dissent relitigation expressly "forecloses of issues point, only ties’ abdication on this as it can impliedly by appellate decided court” muster two instances in which Bell, 64, remand. United States v. 5 F.3d 66 prong qualified mention the second of the (4th 1993). sure, Deputies may Cir. To be immunity opening test in their brief. And even again qualified immunity appro- raise at an then, cursory reading a reveals do so trial, priate time at but the mandate rule only boilerplate applica- in a recitation of the prohibits summary judg- a "do-over” at the legal ble standard. Crooke, stage. Willingham ment See faulty its dissent cannot bolster waiver 553, (4th 2005) ("Thus, Cir. F.3d while analysis by referencing analyzing irrele purely legal question of whether the con- example, vant concerns. For the dissent issue stitutional at estab- points out that the referenced the always capable lished is decision at qualified immunity prong analy second of the summary judgment stage, question a genuine true, 28(j) sis in a Rule letter. While that does regarding of material fact whether the con- analysis. not alter our it. Under the Nor could allegedly right actually duct violative of the Procedure, Appellate Rules of is ana waiver (inter- trial.”) must be reserved occurred lyzed opening based on the content omitted); quotation nal alterations and marks brief; again, argument brief's ”[a section] Pelletier, 299, see also Behrens v. 516 U.S. appellant’s must ... [the] contain contentions 309, 834, (1996) L.Ed.2d 773 them, reasons for with citations to the (indicating government defendant parts authorities and of the record on which denied, qualified immunity, raise once at a appellant App. relies.” Fed. R. P. stage proceeding subsequent of a because 28(a)(8)(A). We held that this rule does legal governs). inquiry standard different preservation argument not allow for an where although Deputies may But be able reply is raised for the brief. See first time in a pursue immunity stage at a later Hand, Helping Cty., A LLC v. Balt. F.3d proceeding, the mandate rule "restricts (4th 2008). Cir. It follows all the authority the district court’s on remand” to letter, strongly 28(j) more filed that Rule summary judgment reconsider that issue in a brief, wholly inappro even reply after is a Chao, (4th motion. Doe v. 511 F.3d priate preserving means of an and ineffectual 2007). held; Cir. fact, argument appeal. we have so engenders is Any the waiver rule harshness litigant’s "We do not countenance a use of clarity: party offset must do more than its 28(j) argu Rule as new a means advance passing prop- at issue” to [an] shot "take[ ] supplemental ments couched as authorities.” erly appellate Grayson preserve it for review. Ashford, United States v. 718 F.3d LLC, Agadir 2013). O Co. v. Int'l 28(j) Were we to treat Rule 2017). actually party must "de- independently an sufficient means of advanc Belk, argument.” Meyer velop [its] Inc. ing argument an not raised in the briefs we Corp., 679 n.4 [issuing] improvi would run "the risk of Here, Deputies' of the ele- bare recitation opinion dent or ... on an un- ill-advised Thus, qualified immunity ments of a defense does Ashford, briefed issue.” They by failing preserve not clear that hurdle. failed to "take a open the issue in their brief, ing passing appellants, shot issue.” As No subse at the waived it. required quent filing to state “contentions can revive it. App. P. dissenting colleague the reasons for them.” Fed. R. Our also overstates the This, 28(a)(8)(A). perceived inefficiency finding Deputies utterly failed to waiver it, stage. As the dissent sees do. 582 hand, Ferguson in hit shortly to be

Hensley’s Fourth Amendment that seizures coming advancing off the free from unreasonable when before against them, deadly exercised entire of force was him? toward that the series deadly force Depu- seizure sub only “The use brief events took time. .,; Amendment,” ject to- the Fourth Ten posit deadly ties that their force Garner, 1, 7, 105 nessee v. U.S. S.Ct. against Hensley in such was circumstances (1985). “A 85 L.Ed.2d 1 reasonable because he both demon- reasonable deadly to use force officer- is entitled propensity for violence and came strated probable to has cause where believe [he] them a gun.' with threat of suspect poses serious rejoinder, plaintiffs contend the harm, to or to physical either [himself] Deputies unreasonably the acted for two (internal at 159 Cooper, F.3d others.” First, point out plaintiffs reasons. the omitted) marks quotation alterations and facts, version the when the under their added). (emphasis determine whether To Deputies 'Hensley, he killed pointing was here, we ask probable cause existed such gun ground threatening the at the and was Deputies’ deadly use of force the whether his-daughters. neither nor As light “objectively was reasonable plaintiffs proffer, altercation them, confronting facts and circumstances Ferguson time with had concluded light to in the most favorable [viewed therefore, porch; he because walked off regard Depu plaintiffs,] [the without weapon he raised his toward the never or underlying intent motivation.” ties’] Deputies, immediately he was threat- Connor, 397, 109 Graham v. U.S. Second, anyone at ening to the scene. (1989). L.Ed.2d We plaintiffs argue that the actions of their assess the reasonableness conduct were all the more here unreasonable be- circumstances, totality based on warning HenSley cause shot without they Terry, Yates v. F.3d gun communicating or with drop 2016), avail based information any way. him in Deputies “immediately prior able to very moment fired the .at At stage proceedings, shots,” Greenidge Ruffin, fatal plaintiffs. agree jury must If a 1991) (internal altera evidence, it plaintiffs’ credited omitted). quotation tions and marks shot conclude mind, guiding principles these With only .-holding gun, he al- because Deputies’ argument, turn to the though gun to he raised the threaten never Indeed, pointed never Deputies. Moreover, anyone. gun time,, ample plaintiffs’ evi- under the contend dence, drop gun warn district court erred their motion denying him, stop shooting before concede but judgment plaintiffs’ summary gave any § never Be- such.,warning. 1983 claim because their use cause circum- the use force such against Hensley was reasonable un objectively unreasonable, stances would be support To circumstances. der " that, we -affirm sum- argument, maintain must the district court’s the Deputies the.Depu- mary judgment denying viewing order even facts most ties qualified immunity plaintiffs, favorable clear claim. Hensley emerged his home with

First, assume, must, if sight; we line of nor we could they see him. Id. evidence, credibility plaintiffs’ Cooper When upon officers, came cannot say Hensley posed a threat “[reacting sight of Cooper his and physical harm to serious either the Dep shotgun, the [officers. drew service daughters uties or his at the time the weapons and firing commenced without Deputies fired the fatal shot. lawful warning.” at Id. possession by suspect a a firearm at his facts, On home, those more, we held without is an insufficient rea officers’ son use of justify deadly deadly force. use force violated Cooper’s (cid:127)Indeed, it is for an unreasonable officer to Fourth rights Amendment Cooper because believe suspect poses “that a a threat of never raised shotgun toward the offi- , harm, physical serious either [himself] cers possession and “the mere of a firearm to others,” merely suspect or because that by a suspect enough is not permit possesses a Cooper, firearm. 735 F.3d at deadly force.” Id. at 159. We rea- (internal quotation and alterations soned, “an officer possess does not omitted); Porter, marks see also Pena v. authority unfettered to shoot a member of 2009) 316 Fed.Appx. public simply person because that (“Absent any additional factors which carrying weapon.” Id. give would probable cause to fear [officers] safety for their or safety others, for the So too here. The responded to presence mere of weapon is not home, domestic at Hensley’s disturbance justify sufficient use of deadly but- no specific had information about the force.”). they arrived-shortly situation. When after facts, dawn, plaintiffs’ Under the version of the daughters stepped noteworthy case bears a resemblance out of onto porch. the home and Hens- to our in Cooper decision v. Sheehan— ley handgun, had a but it never raised another case where law enforcement used According toward the Deputies. to the against non-threatening sus- plaintiffs’ evidence, jury, believed There, pect. responded to the officers a Hensley threatening no made statements domestic Cooper’s disturbance home. anyone or actions the moments toward Cooper, 735 F.3d 155. Rather than an- immediately preceding shooting. In- nounce their presence, simply one officer stead, off Hensley stepped “tapped Cooper’s on the window .[of home] into yard, keeping handgun point- (internal flashlight.” with his quotation Id. at all ed times. Never- ground toward omitted). marks response, Cooper theless, immediately after he almost' “peered out the back door” and out “called stepped Deputies opened into yard, anyone himself,” yard identify in the fire on him Hensley and killed without but the respond. officers Id. did Faced warning. jury plaintiffs’ If a credited silence, with Cooper went outside to inves- facts, reasonably version of tigate brought the noise him Hensley never conclude that because twenty-gauge shotgun. Id. the butt “With officers, raised the to the' because firearm in his hand and its them, he never threatened otherwise pointed ground, muzzle Cooper Hensley simply shot because opened the took back door and two As possession of a firearm. held-in three steps porch.” to his darkened Id. (internal omitted). Cooper, violates the Fourth quotation By marks such conduct time, officers of Cooper’s were out Amendment. F.3d at 158-60. Cf. event, if In the any even

Moreover, admit although plaintiffs believed that Hens reasonably could have engaged Ferguson were Hensley and physical ley posed a threat serious porch, that altercation in a brief him—or to harm, their failure warn calculus. The change our fact does em drop gun—before him to order Hensley and Fer struggle between short an additional deadly force creates ploying whether Hens bearing on had little guson may an officer use impediment. Before to take the substantial prepared ley was if force, warning a deadly give he should disturbance escalating a step of domestic 11-12, Gamer, at 471 U.S. is feasible. See confrontation with deadly potentially into (“[I]f threatens suspect S.Ct. Thus, under the officers. two armed prob or there is weapon with a the officer facts, no reason version plaintiffs’ has commit to believe that he able cause that Hens officer could have believed able infliction or involving the ted a crime physical harm threat of serious ley posed a physical infliction of serious threatened time used Deputies at to the harm, used neces deadly force be per Nor are we against him. deadly force if, where sary escape, and prevent feasi Ferguson attack suaded (em ble, warning given.” has been some deadly force Deputies’ made added)). that a reasoned phasis We have from her serious protect imperative warning is not if “the hesitation feasible Deputies fired injury. When the physical warning readily in giving a involved with Fer Hensley, physical conflict his warning to [the officer’s] be cause such Hensley had ventured guson had ended. Karnes, 27 F.3d McLenagan last.” Ferguson, porch, away from and off the 1994); (noting also id. see v. Bat yard. out into See Waterman that, there, might easily warning “a have 2005) ton, life”); officer Elliott cost the his cf. 1996) (“[FJorce Leavitt, is not justified moment] one [in deadly (holding that an officer’s use justifica if the seconds later justified even reasonable handcuffed force was when has been tion for the initial force eliminat him pointed handgun a small suspect ed.”). Deputies could have Whether suspect drop the officer ordered Hensley’s alter deadly during force used ignored). suspect which the his weapon, Ferguson is not at issue here. cation with give a simply put, an officer should More assuming Deputies could But warning using deadly force unless before so, by Hensley made it down the time done danger. threatened is an immediate there “justifica steps yard, any and into the jury crediting plaintiffs’ initial been elimi Because ha[d] tion force of the facts could conclude version Id.6 nated.” against physical dissenting colleague that no serious harm 6. Our maintains occurred, put Nor do much shot him. but cites the time violation constitutional Hensley generalities in the dissent’s assertion only irrelevant stock and otherwise presence by [Deputies’] "responded support the[] In conclusion. cases like facts one, gun coming immediately retrieving out- we must evaluate all facts Dissenting Graham, Op. confront them.” 593. side to circumstances. 490 U.S. at Hensley While true that permitted to make retrieved We are not presence, response that fact credibility weigh compet- to the determinations above, at the time the fatal not known to them ing was evidence. As discussed in detail facts,- Consequently, irrel- that fact is shot was fired. viewed in most favorable to Greenidge, analysis. 927 F.2d at to our plaintiffs, suggest had walked evant away Ferguson not threaten did not in any immediate Likewise, dan- others.” Id. at 131. in Slattery, ger when weapons, fired Virginia police concluded that a officer failure to weighs warn justified also in using when a against them. the moments leading up suspect in passenger seat of stopped fatal'shooting, to the watched car repeatedly lowered hands toward steps descend the object view, out of the officer’s in viola into yard. They pause watched him tion officer’s commands. 939 F.2d at look back and to the house. And Although object 214-17. the turned out to briefly watched as Hensley bottle, walked toward be a beer id. at this Court held them. played While scene out in front that “a reasonable officer [nevertheless] them, Deputies the concede never probable could have had cause to believe ordered to drop gun the plaintiff] that posed threat,” [the deadly a warned that shoot. would While we id. at 216-17. have no doubt the circumstances confront- cases, In both once the officer a issued ing Deputies the were tense and fast mov- command, verbal the character of the situ-

ing, fact not alone does Gar- obviate ation If an transformed. officer a directs n ner warning admonition. suspect stop, to to show his hands or the like, contend that none of the the suspect’s movement continued reasons noted above are a sufficient basis likely will in raise the objec- officer’s mind upon to which affirm the district tively grave court’s suspicions and serious about qualified denial of immunity. support To suspect’s the intentions. Even when those argument, they direct us to fact, four intentions turn out to be in harmless cases in which qualified im extended as in Slattery, Anderson and the officer to munity deadly officers who used reasonably expect force: can at worst Russell, Anderson v. split-second Here, F.3d when acts. Depu- he 2001); Hill, Sigman v. Town Chapel gave 161 ties Hensley no stop, command to 1998); Elliott, F.3d 782 drop gun, F.3d or raise his hands. Because 640; Rizzo, Slattery and they gave warning, 939 F.2d 213 no no had Deputies, According to suspect Hensley posed reason an compel these cases opposite result immediate threat other than’ the fact that by that reached the district court. holding We gun pointed was a not was disagree. them, ground. at but at .Such conduct runs headlong holding into our in Cooper: Anderson Slattery factually are dif possession “the mere of a firearm a legally ferent the case at in sig bar suspect enough is not permit use of ways. Anderson, nificant In this Court con deadly force.” at 159. Maryland that a police cluded officer was justified in using deadly Sigman similarly force when sub unhelpful to the suspect repeatedly dued lowered his hands position. conduct in perceived what the officer be a his the moments before bears little death gun, violation of in the officer’s verbal suspect Sigman. resemblance to in 128-29, 130-32. There, commands. See 247 at po- we held that North Carolina though Even suspect merely try justified using deadly lice officer was ing Walkman, to turn off who, his against we observed force suspect despite “[a]ny reasonable officer in offi surrounding police [the officers’ commands position imminently stop, cer’s] would have on him with a advanced knife. 161 safety, for his safety feared shooting, and the F.3d at Prior to 787. threatened, and never Deputies, never to kill—at various threatened suspect had times—himself, offi- In cir- warning girlfriend, received command. Id. at 784-85, cumstance, any also not 787. .suspect cer. through the officer swung had a knife not danger and were entitled immediate Id.. On those circumstances, his home. open window Hensley. Under those shoot facts, approved the not are entitled to. willing to use his “was suspect because the immunity. others,” threats on

knife made life, obey the officer’s and did officer’s B. stop, Id. commands to Deputies’ argu- We next address Elliott, officers shot defendant claims. plaintiffs’ as to state law ments who, while suspect restrained killed a car, pointed handcuffs at, officers’ order ignored them See at 642-43. weapon. drop argue first that here, most favor- The facts viewed when claim fails as mat plaintiffs’ assault ably also' bear no resem- plaintiffs, to law, argu relying principally ter of Elliott. Hensley nev- to of blancé the facts of support ments advanced nor pointed er immunity.defense.7 disagree. qualified We stop drop to or

received command gun. law, a North Carolina Under action plaintiff may maintain civil sum, we conclude district ac arising from an it is arrest if' assault requested grant correctly denied the court Myrick See by complished excessive force. to jury of If a immunity. Cooley, 91 492, v. 209, evidence, 371 N.C.App. S.E.2d plaintiffs’ it con- credit (1988).8 gun, “Although the officer has dis that Hensley raised the clude never 496 analysis summary of the assault claim 7. While the of because our district court's denial analysis Deputies’ judgment entirely on our of plaintiffs' is not turns assault claim defense,. qualified immunity Deputies’ ordinarily immediately appealable under doctrine, challenge "inextricably is inter claim we to that collateral orders nevertheless defense, twined” with jurisdiction exercise appellate under pendent jurisdiction, of appellate doctrine appellate jurisdiction judicially- public Pendent created, is "a We note that the issue of whether exception discretionary tort immunity to the final to apply intentional official claims, can claim, judgment Republic plaintiffs’ splits requirement. Rux v. like the assault of Sudan, 2006). 461, Compare, e.g,, 461 Haw- 475 North F.3d courts Carolina. 615, State, only exception This applies N.C.App. S.E.2d is "narrow” v. 117 453 kins “(1) 233, (1995) (holding public inextricably when is an issue intertwined 242 official question subject immunity apply with proper is does not to tort intentional (2) claims), Anderson, Campbell or 156 appeal”; immediate "when review v. with 371, 726, (2003) jurisdictionally N.C.App. is insufficient issue neces 576 S.E.2d 730 otherwise). sary meaningful de- (concluding unpublished to of an imme In an ensure review (internal cision, appealable diately quota public previously applied issue.” offi- Id. omitted). “inextricably immunity See marks Claims cial to intentional are tion tort claims. 197, question specific Wolfe, Fed.Appx. will 202 Ayala intertwined the same v. 546 . 2013), appealable non- underlie and the both the Because resolve assault [claims], appealable reasoning by that resolution claim same used such court, unnecessary question necessarily it is to address [both will resolve Stores, public immunity bar application of the claims] at official once.” Scott v. Fam. Dollar Here, Inc., 105, to this 733 as it F.3d 111 relates claim.

587 limits, cretion, to judge within reasonable official. See v. Catawba Cty., Messick 110 707, 489, degree .required N.C.App. (1983), 431 of force S.E.2d n circumstances, abrogated when by Boyd there substantial on other grounds force, Cty., jury N.C.App. is for the Robeson evidence unusual (2005). Thus, acted as a decide whether officer S.E.2d would person prudent public reasonable be entitled official immunity or.whether so (1) arbitrarily maliciously.” long not act he acted Id. did “outside the (internal omitted). (2) quotation official scope authority,” marks “The [their] with malice, (3) corrupt question whether an officer has used manner. Wilcox Asheville, City N.C.App. a standard of judged excessive force (2012). objective reasonableness.” Civil Jordan v. S.E.2d Bd., 153 N.C.App. Service 570 S.E.2d court, Before the district (2002) (internal alteration plaintiffs argued acted omitted), quotation marks immunity malice. Public official “is noted, previously

As the facts tak unavailable officers who violate light en in the most favorable 'the plain rights because an established officer acts tiffs show that the conduct was that, with malice when he which a does not objectively The evidence reasonable. -of intelligence man reasonable would know Dep viewed in indicates that the contrary duty.” Bailey, be his. uties shot under no imminent (internal quotation marks Thus, warning. threat and without the dis omitted). law, North Carolina Under a law correctly plain trict court concluded that duty officer has a not to enforcement use tiffs’ assault claim as a mat could proceed deadly upon unless, person force another ter law. among it things, “reasonably is other nec

essary ... or [t]o defend himself a third person from what he reasonable believes deadly be the use use of imminent Deputies’ nextWe address the physical force [t]o effect an- [or] arrest[.]” that they public assertion are entitled to 15A-401(d)(1)-(d)(2). N.C. Gen. Stat. immunity official under North Carolina plaintiffs’ wrongful on the again, law NIED and taking Once in the evidence claims, as well as on issue of plaintiffs, death most favorable whether be puni would able to seek correctly Deputies district denied the court damages conjunction tive their public immunity with official because tort state claims.9Public in North deadly officials reasonably necessary force was not usually Carolina are suit from the. that Under circumstances.10 immun.e evidence, actions taken in capacities. their official- view of Deputies the- shot Kaasa, Grad v. See 312 N.C. 321 Hensley, despite posed the fact that no he (1984). deputy S.E.2d A sheriff immediate to. threat harm serious either carrying public out his duties is daughters. such them or Hensley simply his too, jurisdiction Deputies' have over Deputies We in- 10. Here any have waived appeal public terlocutory official immu- argument the violation at issue here was nity issue under the collateral order doctrine "clearly not established.” because, law, public under North Carolina immunity, qualified immunity, official like "is immunity Bailey, suit.” 349 F.3d at 738-39.

in. ^[00] (1985). Here, into the stairs and 84 L.Ed.2d 605 down walked gun pointed majority his toward the has series yard with transformed chaotic Deputies shot that took ground. place then events a matter whereby, into a call any warning. evidence so con- seconds routine without reasonably only Deputies1 acted as the jury strued could lead a prefer, Lee majority perhaps that the acted mal- would David conclude Hensley might North law. still be alive. While Hens ice under Carolina ley’s tragedy, tragedy death does not at this Accordingly, we must conclude equal liability. undisputed facts When the stage proceedings perspective, judged are duty contrary acted their to use not vio apparent did becomes reasonably necessary. In only when rights. Hensley’s late constitutional More , circumstance, Deputies are otherwise, over, assuming even public immunity under official entitled in determining court erred if the North.Carolina law. Therefore, law. violated established respectfully I dissent. IV. reasons, For these we conclude I. appropriately court denied

district' qualified immunity on morning 6 a.m. after Just plaintiffs’§ 1983 claim state assault law August Shirley Ferguson, Hens- claim, public immunity official as well mother-in-law, ley’s report called 911 NIED, wrongful punitive death and possible domestic disturbance damages brought claims under North Car agitated home. over- had been The judgment law. of the district olina night, telling daughter Rachelle that court only people left Earth asking Rachelle to his wife and call AFFIRMED. her come home from work. to die. When also indicated wanted SHEDD, Judge, dissenting: Circuit Rachelle, check Shirley called to Hens- Fourth Reasonableness the ley “going to answered and told her he was per “is the Amendment evaluated from kill slam- GDB with a knife” before [sic] scene, of the not spective officer on the ming phone Hensley’s behavior down, leisurely the more of hind through lens Shirley’s during phone call prompted Abney Coe, sight.” 911 call. however, decision, Today’s began Henry Haywood Depu- County in Two continues shift that Sheriffs Purnell, 2011) (en ties, Deputy 652 F.3d 524 Michael Price Lieutenant and banc), “judge[s] post Beasley, in As engage[] responded where Keith to the call. Deputies, police relayed ... to the call was a civil [and] hoc evaluation conduct involving un- imagine by person possibly some which alternative means disturbance subject of drugs: was objectives police might der influence v. on his screaming United States accomplished.” porch yelling been and 686-87, Sharpe, 470 U.S. his someone inside house. majority, collectively Beasley Deputies.” to as

1. Like I refer "the Deputy Lieutenant Michael and David Price separate lying vehicles to the res- cover across the front drove marked seat. Lieu- radioed, Hensley’s As tenant Price approached gun! idence. “It’s Gotta home, gun!” elderly flagged up man down Lieu- and backed his car further (J.A. 633). Hensley driveway. him tenant Price to tell Lieutenant Price then kept neighborhood up night. taking all ready” exited his vehicle a “low dispatcher pro- position. also to called the Shirley 911 a update:

vide an had called point, At Hensley and Rachelle Hensley second time and indicated briefly gun. Hensley wrestled for the won granddaughters. As have hurt her struggle and struck Rachelle residence, Hensley’s approached gun. back of the head Rachelle Lieutenant Price was the car. lead Lieu- help and H.H. Dep- screamed Price, however, tenant the turn for missed uties, but neither officer issued verbal Hensley’s driveway; Beasley thus Deputy approached command or the house.3 After pulled began first down proceeding and striking gun, Rachelle Hensley with the let driveway. go porch of her and proceeded down the house, that, Hensley police steps. Inside the saw the Rachelle testified while she did bedroom, approaching, Hensley drop cars into his gun, ran see she lost sight his as gun porch. and reached under mattress retrieve he left the H.H. key gun opened gun to his safe. He then testified that the was not in hand, long-nose the safe and removed a revolver. that she could not see his buj; sister, H.H., attempted and her left hand. She also that his hands Rachelle testified stop Hensley, porch. but were unable do so. remained his side as he left the Hensley stepped All three then house onto the off porch, exited the Before porch and cars H.H. front saw two turned tell he loved her. driveway.2 into stepped left the and Beasley Price the front Deputy yard veering Lieutenant before off and walk- stopped ing directly Beasley’s front of the Deputy residence car. daughters spilled and his onto As Hensley leaving porch, Deputy out was porch. Hensley openly carrying Beasley, going was that he was afraid be house, car, both trapped open as he exited the in his his kicked vehicle door, vehicle, weapon. quickly saw him with the began exited the response seeing gun, moving position with a to a defensive the back Deputy Beasley immediately away oncoming himself of threw his car further car put Hensley. Beasley down across his front saw that Hens- Deputy seat Because, however, Deputy ley, away, reverse. feet who was about 30 Beasley not be of walking gun could sure Lieutenant him with the in his toward Price’s Deputy Beasley location and was concerned about hand. fired three as shots Price, car injuring put Aoving away per- Lieutenant he his from the he continued time, park position roughly back into and in a At remained ceived threat. the same Hensley dispute being 2. There is no knew that the ine a trained officer if he that scared vehicles were cars. perceive facing did not that he was an ex- tremely dangerous Beasley Deputy situation. 3. Lieutenant Price he did testified that not lying was still in the of car down front seat his issue a command because were events unfold- Hensley's and did not see altercation with ing “so fast” and he found that he “couldn't Rachelle. say nothing” frightened by because he was so (J.A. 546). imag- the situation. It is difficult to 590 Price, Deputy immunity prongs qualified concerned that “both

Lieutenant vehicle, “(1) Beasley. inside his fired pinned analysis \vas because Defen satisfied” are. Hensley Hensley shots as headed two at dants violated decedent’s constitutional Beasley’s car.4 Deputy ... rights they unlawfully when seized him toward. single to the head. bullet by killed (2) was force, through the use excessive clearly at time the that it was established of Investi- Carolina State Bureau North seize, deputies not could decedent long-nosed re- Agents recovered gation they the manner Id. at did.” volver, description matched which which Deputies timely appealed. Deputies, by un- gun given an, in- Hensley’s body. Following derneath brought charges

vestigation, no were II. or Beas- Deputy Price against Lieutenant .facts, I would reverse.5 On these sum patrol com- log of the ley. The cars’ audio mary judgment is for Dep appropriate fifteen munications shows less than § 1983 claim did uties because from the time elapsed Lieutenant seconds Hensley’s rights. not violate constitutional stated, gun!” to gun! Price “It’s a Gotta “We review novo a district court’s deni (J.A. de 633). the time shots were fired. summary im judgment qualified al of (the Plaintiffs) Hensley’s family filed munity, light construing facts in all' action, raising of state variety this civil most favorable to nonmovant.” Orem v. .claims, including a and federal 42 U.S.C. 442, Rephann, 623 445 Following claim for excessive force. 2008). involving im qualified For appeals sum discovery, moved munity, by the facts as accept stated mary arguing judgment, “whether, the district and determine court immunity. entitled to facts, person based those reasonable Sut court denied the motion. in the be position defendant’s could have (W.D.N.C. tles, 167 F.Supp.3d con acting lieved that was he she that, explained accepting The court formity at established law events, Hensley was Plaintiffs’ version time.” Gray-Hopkins v. Prince holding his at exited side George’s Cty., Dep walking began 2002). “In reviewing a district courts deci that, uties and “[i]f defendant did rejecting sion a defendant’s assertion Beasley his his

point gun at as he made qualified immunity, apply analysis way across yard, as Plaintiffs’ the front by Supreme forth Court in Saucier set shows, no reason forecast then evidence Katz, U.S. S.Ct. officer conclud objectively able (2001), L.Ed.2d 272 as modified to the danger was a ed decedent later Court’s Calla [v. deputies’ safety warranting lives or decision Pearson Id, han, U.S. at force.” 763. Given conclusion, (2009)].” L.Ed.2d Danser v. the court then Stansber determined 4. The hands were testified at sides at both aiming, Beasley shooting, time of the weapon Deputy attempted or fan to cock the hammer shoot. my time decided conclusion that the revolver While, provides summary judgment this information fuller context are entitled to on the ex- claim, Deputies' testimony, purposes to the force I would for cessive also reverse on review, by- accept court’s the two state our law claims addressed testimony majority. crediting of H.H. and Rachelle’s

591 2014). 340, ry, Connor, 346 Pur ness’ v. 490 standard.” Graham Pearson, 386, 395, 1865, suant to Saucier ask U.S. S.Ct. L.Ed.2d (1989). Hensley’s whether violated objective, standard ask and, so, if rights ing constitutional “whether if a officer reasonable in same .the right ‘dearly at issue established’ circumstances would concluded-that existent, question.” at the time of the events Id. justified threat -use may deciding our 397, We use “discretion force. Id. at 109 S.Ct. 1865. police A prongs which of the two officer use when the force immunity analysis be addressed should “probable officer has cause to that believe 236, Pearson, at first.” 566 U.S. 129 S.Ct. the suspect poses a physi threat serious harm, cal either to the officer or to oth Garner, 11, ers.” 1, Tennessee v. 471 U.S. protects

“Qualified immunity officers 1, (1985). 105 S.Ct. 85 L.Ed.2d commit who constitutional violations-'but who, clearly law, established standard,: In applying “[t]he ‘reason reasonably that their actions believe ableness’ of particular a. of force must Henry, were lawful.” 652 F.3d at 531. judged be perspective of a rea asking clearly right When estab scene, on sonable officer rather -than at lished the time of constitutional with the of hindsight.” vision 20/20. Gra violation, right not “whether the 396, 109 we do ask ham, 490 A U.S. S.Ct. 1865. at allegedly violated was established ‘as reviewing court must make for “allowance whether, general ‘it proposition’ broad but the fact officers are often to reasonable official that would be clear forced to judgments make split-second his conduct was the situation unlawful [here, certainly so]—in circumstances v. Campbell, Raub confronted.’” tense,- uncertain, are rapidly evolving.” 2015) (quoting Sau Id. at S.Ct. “The court’s = 201-202, 2151). cier, 121 S.Ct. U.S. focus be on the should circumstances Supreme recently Court reiterated the moment on the was used and fact that: are not officers- the’beat often this Court’s law not “do[es]

While case luxury afforded the armchair reflection.” directly require point” Leavitt, case a Elliott established, “existing be placed the precedent must have statuto- or

ry question beyond A. constitutional de- [— bate.” Mullenix v. Luna U.S.-] Judging from the perspective the'facts L.Ed.2d [193 255] scene, of a reasonable officer words, (2015). immunity pro- In other did violate consti incompetent “all but plainly tects using deadly rights' by tutional force. The knowingly those who violate the law.” Deputies to a responding domestic Id. call, out to be disturbance one turned — U.S.-, Pauly, 137 S.Ct. White category for that of calls extreme evein (2017) 548, 551, 196 (emphasis L.Ed.2d 463 involved, an armed because individual added). acting irrationally against used force who Here, allege family a close Dep- appeared the Plaintiffs what mem be presence police. uties used excessive force. Excessive force ber “[T]he analyzed volatility involving claims of situations domestic “should be particularly danger Fourth Amendment and its ‘reasonable- violence makes them elapsed than seconds to a domestic Less fifteen respond officers ous. When pulled time the into the drive- officers call, violence they that understand abuse fired. way until the time the shots were explode with little lurking and may be time, During that officers took defen- both Indeed, more are killed warning. officers Deputy positions postures—like sive calls than injured on domestic violence or Beasley himself on his throwing down Agar any of call.” Mattos type other front consistent with seat—that were 2011) (en ano, seriously that were belief omitted). banc) (internal quotation marks A for their lives. reason- threat afraid residence, Hensley’s driving While Dep- able officer would believed have called Shirley had Deputies learned Beasley threat of uty was under imminent safety concern for the again express a physical Hensley began harm: serious addition, neigh In a grandchildren. of her pattern aggressive continuous stopped Price Lieutenant borhood resident threatening moment behavior Hensley keeping him that had been to tell 30 feet officers arrived and was within night. neighborhood up the entire gun— Deputy Beasley and armed awith have Thus, officer would a reasonable slowing no that he suggestion with was highly approaching a known were attempting with down communicate agitated an individu situation with volatile Deputies—at time victims. potential al and several fired.7 residence, Hensley’s Upon arriving Sheehan, Cooper v. 735 F.3d 153 by Hensley coming met 2013), majority upon, which relies carrying and dis- porch openly onto the fact, require In a result. does different gun. response police to the playing a read, summary Cooper supports properly than to diffuse presence, attempting rather holding in judgment Deputies. Our situation, wrestling Hensley began Cooper part the fact rested for control of the daughter with his Cooper people prop- never on his knew At in the it. striking before her head with that, erty were officers. We noted fear is that moment the violence officers presence officers made their had call lurking every case, domestic disturbance known, fact undisputed a manifested before them. itself “they might assump- have been safe aside, daughter stepped then moved off a greets tion that man enforce- who law porch, Dep- began walking likely pose toward ment with firearm Thus, Beasley’s car, uty closing deadly Cooper to within threat.” Id. at 159. patrol supports 30 feet.6 arrived here: that, determining Incredibly, majority firing. provides dis- Garner views carding hitting her and permissible Rachelle after whether force is courts walking Deputy patrol car Beasley's give if it should consider was feasible to ending point, At this a reason- threat. warning. S.Ct. 1694. As U.S. at perceived Hensley’s able officer have would recounts, majority warning is not feasi actions as escalation not diminution: giving where ble "the hesitation involved already armed who committed warning warning readily cause such Deputies’ presence an assault in the was McLenagan be” the last. heading directly physical toward a encounter Karnes, P.3d police. Beasley, Deputy Given imminent threat would not believed a a reasonable officer majority much of the fact makes warning necessarily feasible. warn before did not Hensley cars force, marked that identified and free from majority excessive Hensley responded presence to ruling upon avoids whether are enti- immediately retrieving gun coming and to qualified immunity, tled finding instead outside to confront them. Once free of that Deputies waived the issue. Rachelle, off advanced Deputy Beasley’s po- and toward marked carrying gun.

lice car while Under these To begin, I disagree with majority’s facts, Deputies were “safe in as- assertion that Deputies waived the ar- sumption” that Hensley “pose[d] deadly gument that their actions not Elliott, did violate threat.” Id. See also F.3d at any (“No clearly rights. established Although expect citizen can to fairly draw a the Deputies could have gun police pre- been more risking tragic without conse- cise, in' quences.”). their brief note that “the 1) Court must determine two issues: did hindsight, Viewed without this 20/20 the Defendants violate constitu- case falls within the heartland cases 2) rights; so, tional if clearly and was it consistently granted which sum- established the timé the Defen- at mary judgment police using officers unconstitutional,” dants was [sic]"conduct See, e.g., force: Anderson v. Rus- Appellant’s 14, Br. at and that “[b]oth sell, 125, 2001) questions must be yes answered for the (“This consistently Circuit has held that an proceed,” Plaintiffs to Appellant’s Br. at officer does not a gun have wait until pointed at the officer before the officer is action.”). Sigman entitled take See also addition, In history of be- case Hill, (1998) Chapel 787-88 fore our Deputies court indicates the did (no constitutional violation for lethal force not argument. waive their After Depu- against, suspect may may who not have brief, ties opening filed their the Appellees had a suspect knife his hand when had moved appeal to dismiss the as interlocu- displayed earlier with the attacked tory. Appellees argue did not knife). making Rather than “allowance Deputies two, step but that the waived the fact officers are often Deputies arguing fact disputes about split-second forced make júdgments—in of legal questions. responding instead In tense, uncertain, circumstances that are motion, Deputies again made clear Graham, rapidly evolving,” 490 U.S. at “[a]s, Brief, argued in their even view- majority in- has ing the facts in most favorable to engaged in type stead of “armchair Appellees, the Defendant Officers did reflection,” Elliott, to decry, used not any violate constitutional 642. At the time descend- did, even was not estab- if advanced, ed the stairs Deputy Beas- lished Appellant’s Response at the time.”

ley was trapped his car and Lieutenant added). (emphasis ECF With No. already Price had witnessed explanation, a'panel benefit of that as a weapon against Rachelle. this court motion to dismiss. denied the every There was reason believe that Deputy Beasley timely was Finally, imminent threat. filed a letter of Appellate Federal Rule Proce

B. dure 28(j) Supreme after the Court issued — erroneously concluding After its Pauly, decision in White U.S. -, Hensley’s right violated to' be 137 S.Ct. L.Ed.2d Moreover, did (2017). letter, 28(j) even argument waive the the law explained: established, -clearly I would still reach plaintiff has failed relevant White speaks majority issue. of waiver ‘clearly point to to established law’ but, judi is waiver absolute terms because violated, factually a similar with was created, cially possess “we the discretion v. Plaintiff on Pena Porter case. relies to appropriate circumstances disre which, very different circum- describes gard United parties’ inattention.” looking for a officers were stances—the (4th Holness, 579, 706 States v. F.3d Pena, to not went was suspect 2013).- Cir. we Factors examine deter night in the middle home Pena’s to in mining use this whether discretion sleeping; he came to the and saw him sufficiently clude record whether knocks, a holding to response door developed to permit to us examine immediately shot and shotgun, and addressing issue and the issue whether not a him. The officers did receive killed efficiency deci- “enhanc[e] would Pena, witness hit 911 call him regarding and; sionmaking “judicial conserve process” a daughter gun in the with head Although Id. resources.” never gun. on officers with a advance “party may truly waiv decided waive if a er,” our to have used discretion excuse at Appellant’s Supplemental Authorities a waiver ar “supposed waiver” when the EOF No. 37. gument untimely in an is raised fashion. sufficiently put the issue These actions Ashford, United States clearly was estab- whether 2013) (internal quotation majority con- lished before court. this omitted). all, marks alterations After then, hoping otherwise, to avoid cludes at two-way street.” Id. “waiver must be practical problem the Deputies Here, argued not the Plaintiffs have again qualified immunity imme- could raise two, step waived diately on remand and file another inter- judgment summary record adequate Pelletier, appeal, see locutory Behrens issue, ruling would decide the and a U.S. L.Ed.2d proceedings by, explained streamline (1996) (holding that defendant below,'correcting the court’s erro district bring interlocutory more than appeal one of the neous and application recitation immunity), proclaims qualified based on qualified immunity standard. precludes Depu- that the mandate rule clear, sponte To raising step again majority “an be is sua ties two until trial,” appropriate time at because the that the waived concluding “ argument. mandate rule ‘restricts The Plaintiffs did raise not contrary, their authority’ court’s brief. To reconsider that issue waiver summary judgment points whether proceeding.” Ma- brief at several discusses Chao, Hensley’s right jority Op. (quoting at 580 n.5 Doe v. was established. 2007)). (“An See, objec- Appellees’ not Br. e.g., I do tively operates believe the rule re- officer know mandate reasonable should raising qualified shooting carrying strict the who was a man remand, ground on his -own immunity again immediately pointing down but, laws, majority open-carry in a property, the extent the other- State holds wise, (and raising threatening I it in manner agree that the Deputies can should) immunity The sec- the Fourth pursue at trial. violates Amendment. the, (1985). prong qualified immunity analy- ond Therefore, L.Ed.2d 1] fore requires the Court to examine cast sis evidence support jury whether would Deputies] finding a clearly deputies’ violated estab- [the use of -' right.”)- unreasonable, -' lished then both prongs the pertinent test have been view, my the Plaintiffs waived the met. Deputies’ alleged “by addressing waiver Hensley, 167 (empha 761-62 claim on the merits F.Supp.3d without also mak added). sis ing argument.” Norwood v. waiver Vance, 1062, 1068 words, . In other the court found that the reaching Instead this common sense Plaintiffs only prove that the Depu- conclusion, majority choosing is af force, ties used excessive pro- because the ground firm party “on that neither” “had against using hibition force is excessive any might dispose” reason believe clearly Supreme established. The Court Deputies’ qualified immunity argument, consistently has explained the error in this LLC, Rohan Presentations Networks approach; 2004) (Shedd, 288 repeatedly We have told not to courts J., dissenting). Their actions represent, define clearly high law at a established I of the waiver re harshest rule can of generality. dispositive level ques- The during my member time court. tion is whether- violative nature of

¡particular is clearly conduct established. , This inquiry must be in light undertaken . n case, specific context of the not as majority’s faulty ruling waiver is general proposition. broad speci- Such fact, more troubling by made the simple is ficity especially important in the court, view, my erred in context, Fourth Amendment where the analyzing whether at issue was n recognized has Court some- is accepted established. The court times for an difficult officer determine Gamer as the clearly established law and doctrine, legal how the relevant here collapsed qualified immunity’s then two force, excessive apply factual will steps: the officer situation confronts. The Plaintiffs asserts De [sic] Mullenix, (internal 136 S.Ct. at 308 altera- alleged fendants’ harmful conduct— tions, citations, quotation and marks omit- Beasley’s Price and unreasonable use ted). deadly force to ‘seize’the decedent—was clearly proscribed by conduct the Con recently, again More in the context of stitution, While a force, officer’s deadly interac explained Court White person may tion with not ulti that “we have held that Gamer and Gra- mately person’s lead to the seizure ham do not by themselves create clearly sense, constitutional “there can be no established law obvious outside case.” question (internal apprehension by White, the use of quotation 137 S.Ct. at 552 subject omitted). seizure simply marks case This not an requirement reasonableness “obvious” case where Gamer and Graham Fourth and, Amendment.” Tennessee v. apply Gar the district accordingly, court ner, U.S. holding.8 [105 As a committed error so résult Graham, Apart tion, Porter, and Fed.Appx. Gamer the district Pena v. 2009). pointed only adds, misreads, disposi- court unpublished majority to an of the majority’s determination man- Jr.; SCHILLING, J. Russell E. crystalized in Ronald date, now that error is Dolan; Hecker, A. Individu Jonathan ease. Similarly

ally On Other Behalf Employees, Plaintiffs-Appel Situated III. lants, ... includes the interest public “The safety of concern for the public

substantial carrying out the lawfully law police officers COMPANY, BAKING SCHMIDT v. Sa United States enforcement effort.” INC., Defendant-Appellee. 164, kyi, No. 16-2213 yet step in takes another Today, this court concern continues its minimizing that of Appeals, United States Court precedent “significant departure Circuit. Fourth Supreme Court.” Court Argued: September (Shedd, Henry, at 553 Circuit Decided: November juris Collectively, our Judge, dissenting). specter to raise

prudence continues conduct, chilling effect officers to enforcement

“prompting law risking in order to avoid

choose inaction Id. Before liability.” today, when

personal person by armed who

confronted an violent crime and was

just committed a them, officer was

advancing towards under

entitled believe however, Now,

imminent threat. under rule, unless and until the officer

majority’s warning or waited

has either issued weapon, to aim his

the armed individual the risk of officer compounding

further

harm, pause must before officers tak § Because

ing liability. action or face from our nor the

neither Court caselaw liability in supports

Supreme Court circumstances,

such I dissent.9 proper con- new framework assess officer Cooper, case was after the but that decided provide scrutiny, cannot events here and from this we are duct could evolve requires. Court established law the currently propounded by bound law as Supreme Court. Although police confron- I understand that scrutiny, are increased and a tations

Case Details

Case Name: Hensley Ex Rel. North Carolina v. Price

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 17, 2017

Citation: 876 F.3d 573

Docket Number: 16-1294

Court Abbreviation: 4th Cir.