Case Information
*1 Before WILKINS, Chief Judge, MOTZ, Circuit Judge, and C. Arlen BEAM, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
*2 Reversed and remanded with instructions by unpublished per curiam opinion.
COUNSEL ARGUED: Alexia Pittas-Giroux, STUCKEY LAW OFFICES, LLC, Charleston, South Carolina, for Appellant. Thomas Joseph Rubillo, Georgetown, South Carolina, for Appellee. ON BRIEF: Robin Lilley Jackson, STUCKEY LAW OFFICES, LLC, Charleston, South Caro- lina, for Appellant. William Stuart Duncan, DUNCAN, CROSBY & MARING, Georgetown, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
OPINION
PER CURIAM:
Doug Dishong appeals an order of the district court denying his motion for summary judgment on the ground of qualified immunity. We reverse and remand with instructions to grant summary judgment in favor of Dishong.
I.
A.
The Prior Appeal
This case has been before this court once before, also on interlocu-
tory appeal from an order denying summary judgment.
See Martin v.
Dishong (Dishong I)
,
*3 In Dishong I , we explained the relevant facts as follows: Before the shooting, a deputy sheriff [other than Dishong] . . . observed Martin in a place that made her suspect he was planning to dump trash illegally. When she approached to investigate, Martin fled in his truck. A second deputy saw Martin about fifteen minutes later and began pursuing him. This vehicle chase culminated at an intersection where Dis- hong and another deputy had set up a roadblock.
The deputies assert that when Martin reached the road- block, he rammed Dishong’s vehicle, backed up, collided with the vehicle again, backed up a second time, and then drove forward toward Dishong’s vehicle once more. By contrast, Martin’s wife (Plaintiff) alleges that Martin col- lided with Dishong’s vehicle accidentally and then tried to turn away from the roadblock. It is undisputed that Dishong fired several shots at Martin during these events . . . and that a shot fired by Dishong caused Martin’s death.
The parties offered conflicting evidence concerning the relative positions of Dishong and Martin at the moment when Dishong fired the fatal shot. Evidence presented by the defense placed Dishong next to his vehicle and in the path of Martin’s oncoming truck. By contrast, Plaintiff offered evidence indicating that Dishong was safely inside his vehicle as Martin came toward it. Another scenario sup- ported by Plaintiff’s evidence placed Dishong behind his vehicle while Martin was attempting to drive away from the intersection.
Id. at 154-55.
In response to her husband’s death, Plaintiff filed this action pursu- ant to 42 U.S.C.A. § 1983 (West 2003), alleging that Dishong vio- lated Martin’s Fourth Amendment rights by employing deadly force without justification. After discovery, Dishong moved for summary judgment, contending that he was entitled to qualified immunity. Dis- hong maintained that at the time of the shooting, Martin was trying *4 to kill him by ramming his vehicle and that he was therefore entitled to use deadly force in self-defense.
The district court denied Dishong’s motion. Noting that the parties had presented conflicting evidence concerning Martin’s actions prior to the shooting, the court reasoned that a jury could find that (i) Martin did not act with intent to harm Dishong and (ii) no reason- able officer could have concluded otherwise. In light of these possible findings, the court ruled that the evidence in the record created a gen- uine issue of material fact on the question of whether Dishong could reasonably have concluded that Martin posed a threat to his life or safety.
In
Dishong I
, we affirmed this ruling.
See Dishong I
, 57 Fed. Appx.
at 155-56. Citing
Tennessee v. Garner
, 471 U.S. 1 (1985), we
explained that the Supreme Court has "approve[d] the use of deadly
force by a police officer against a fleeing suspect if the suspect (1)
poses a threat to the officer, (2) poses a threat to others, or (3) has
committed a serious violent crime."
Dishong I
,
In addition, we declined to consider alternative arguments invoking the other two Garner categories. In support of these arguments, Dis- hong alleged that Martin committed at least two violent felonies by deliberately colliding with Dishong’s vehicle, and that Dishong was therefore permitted to use deadly force to effect the arrest of a danger- ous criminal and to prevent Martin from harming others in the com- munity. Because the district court had not addressed these issues, we did not decide whether summary judgment on these grounds would be appropriate. See id. at 155 & n.3.
B. Proceedings on Remand
On remand, Dishong asked the district court to address the argu- ments it had not earlier considered (concerning categories 2 and 3). The court once again denied summary judgment. *5 Regarding the second category (use of deadly force to pre- vent harm to others), Dishong argued that Martin had already driven at high speeds to avoid arrest and that he was likely to do so again if he escaped from the corral of police vehicles; in light of this risk, Dishong contended, he was justified in using deadly force to prevent Martin from fleeing the scene in a manner that posed a threat to oth- ers. The district court rejected this basis for summary judgment, rely- ing on evidence that Dishong fired the fatal shot as Martin’s truck rolled slowly away from the roadblock.
The court also rejected Dishong’s claim that he was justified in using deadly force to prevent a felon from escaping (the third Garner category). Dishong argued that Martin’s attempts to ram Dishong’s vehicle amounted to felonious assaults. The court ruled that summary judgment on this basis would be inappropriate because Dishong’s argument rested on the premise that Martin’s collisions with Dis- hong’s vehicle were intentional, and the court had already found that there was conflicting evidence on the question of whether Dishong reasonably determined that Martin collided with Dishong’s vehicle intentionally.
II.
On appeal, Dishong renews his claim that he is entitled to summary
judgment on the question of qualified immunity. The doctrine of qual-
ified immunity shields government officials from liability for conduct
that "does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
Wilson v.
Layne
,
Under the second prong of Garner , the use of deadly force was permissible if Martin posed a danger to others. Certainly, Martin’s high-speed flight through a residential neighborhood posed such a danger. And once he had freed himself from the corral of police vehi- cles, which apparently occurred shortly before the fatal shot was fired, Martin could have resumed his risky flight.
Plaintiff contends that Martin did not intend to flee. In support, she relies on evidence that, once Martin left the corral, his truck moved at "walking speed" before rolling to a stop. J.A. 254 (internal quota- tion marks omitted). Based on this evidence, Plaintiff asks us to infer that Martin only intended to pull over to the side of the road. We do not find this inference plausible, however, in light of Martin’s earlier conduct. In any event, Dishong could reasonably have reached the opposite inference—namely, that Martin was attempting to accelerate away from the scene. Moreover, while Martin or his truck may have been so disabled that he could not have escaped regardless of his intentions, there is no evidence that Dishong was aware of such a con- dition. Accordingly, Dishong was entitled to qualified immunity on the question of whether he properly used force to prevent Martin’s escape.*
III.
For the foregoing reasons, we reverse the decision of the district court and remand with instructions to grant summary judgment in favor of Dishong.
REVERSED AND REMANDED WITH INSTRUCTIONS *In light of our holding, we need not consider whether Dishong’s con- duct was reasonable under the third category, which permits the use of deadly force to prevent the escape of a fleeing felon.