*1
681
entry
gov- voluntary nature of Muse’s
into the
find that the
therefore
that it “should”
(amounting effectively
stipulations
Addi-
to a de
proved those elements.
had
ernment
guilty plea)
significant
instructed the
facto
would raise more
specifically
tionally, the court
elements,
Strother,
the
concerns.
United
v.
had to consider all
States
578
jury that it
Cf.
397,
(D.C.Cir.1978) (when
stipulations:
F.2d
encompassed
stipula
in the
403
those
even
element],
felony
guilty
tions are
plea,
tantamount
to a
Rule
[the
“You have to consider
elements,
11-type procedures required);
certainly,
of the
but the
United
as one
States
(D.C.Cir.1970)
Brown,
1100,
you
veiy clear that
don’t v.
428 F.2d
stipulation makes it
(same).
Schuster,
if it has
But
into the evidence to see
see United States v.
have to look
(9th Cir.1984) (Rule
by
proven
government.”
been
contendere);
pleas
guilty
limited to
or nolo
reasons,
court’s in-
For these
the lower
Robertson,
(5th
United States v.
Alternatively, argues that if Muse regard to court’s instruction with the district proper, the district stipulations fact following procedures
court erred not 11 of the Federal
outlined Rule Rules if he know Procedure to determine
Criminal voluntarily stipula
ingly entered into the procedures that Rule 11
tions. He maintains validly required before the court could TAFT, individually Teel and as Jeanette stipulated elements from the remove the guardian children, ad litem for minor argument jury’s This is mer consideration. Taft, Kimberly Taft; Onte Taft and itless. Harry minor; Kimberly Taft, minor; summarily theory disposed can This be Teel, Sr., guardian as ad litem for minor above, because, the district court’s as noted children, Harry Teel, and Shamesa did not result the removal instruction Harry Teel, Jr., minor; Teel; Shamesa jury’s from the con- stipulated elements Plaintiffs-Appellants, Teel, minor, sideration, improperly in an nor did it result partial government’s in the directed verdict jury required to Because the was still favor. Terry VINES, Deputy Pitt Sheriff of and return a verdict Muse consider County, position Deputy as Sher- offense, guilty of the of all of the elements Troy capacity; iff and in his individual theory support. is without Boyd, ca- in his official and individual pacity course, enforcement officer if law the issue would be different Of Greenville; Tim and for the stipulated to all the elements of
Muse had Peaden, case, official and individual knowing In such a the offense. *2 capacity officer in as a law enforcement Greenville; City Johnny
and for
Craft, ca- in his official and individual
pacity enforcement officer in as a law City Greenville; Benny for the
Dobbs, in his official and individual ca-
pacity a law enforcement officer City Greenville, Defen-
and for
dants-Appellees,
Billy Vanderford, County of Pitt L. Sheriff capacity as Sheriff and City capacity; Greenville;
individual
Nancy Jenkins, Mayor, in her official capacity; Hin
and individual Charles Police, City Greenville,
man, Chief of capacity; official Kevin M. Smelt
zer, Police Officer of of Green
ville, capac in his official and individual
ity, Defendants.
No. 94-2293. Appeals, Court of
Fourth Circuit. April
Argued 1996. May
Decided by published per opinion.
Affirmed curiam Judge opinion MICHAEL wrote an concurring dissenting part. Judge MURNAGHAN wrote a joined. in which ERVIN
OPINION PER CURIAM: 30, 1993, July Appellants, On Jeanette Taft, Taft, Taft, Kimberly Harry Teel Teel, Jr., Teel, pur- and Shamesa filed suit § to 42 against Ap- suant U.S.C. pellees, County various Pitt and Greenville law enforcement officers. The alia, Appellants alleged, police inter that the officers had violated the Fourth Amendment (1) by the United States Constitution stopping Appellants’ car without reason- (2) using able and excessive force executing the search attendant to that stop. granted The summary district court judgment to the officers both of these and all other claims. appeal, panel
On of this court unani- mously affirmed the district court with re- issue, spect “stop the first that the supported and frisk” was “reasonable sus- Vines, picion.” Taft Cir.1995). Therefore, officers enti- immunity qualified tled to as to “the actual stop Appellant decision to Taft’s car and to occupants.” (emphasis frisk the Id. at 311 However, original). panel a divided conclud- qualified ed that the officers’ “entitlement to immunity Appellants’ as to the excessive incorrectly granted by force claims was summary judgment district court at White, Lee & ARGUED: Robert White stage” “district and so reversed the court’s Shearin-White, Greenville, Carolina, North issue, grant summary judgment on this Wooten, Ray Appellants. for Kenneth Ward the case for trial on the remand[ed] Smith, P.A, Bern, Carolina, & New North § 1983 excessive force claims.” Id. at 312. Green, Appellees. ON BRIEF: John R. panel A divided also concluded that the dis- Smith, P.A, Bern, Ward & New North denying Appellants’ “mo- trict court erred Carolina, Appellees. summary judg- tion for continuance of the hearing in ment order to allow for time WILKINSON, Judge, and Before Chief discovery on the issue of conduct RUSSELL, WIDENER, HALL, immunity.” at Id. MURNAGHAN, ERVIN, WILKINS, LUTTIG, NIEMEYER, HAMILTON, MOTZ, granted petition
WILLIAMS, MICHAEL, the officers’ We rehearing rehearing suggestion for Judges, sitting en banc. opinion. headlights panel and vacated the With car’s while he was searched and en banc (and issue, adopt likely handcuffed. such regard to the first we now While conduct Onte, panel understandably) II A of opinion. unanimous See scared if this was all done, opinion, agree at panel 310-12. that was then I would summary officers would be entitled to issue, regard to the second With judgment. But this was not all that was claims, adopt the excessive force we now done. dissenting opinion. at See 70 F.3d 317- (Motz, J., Thus, dissenting). for the rea (Onte’s In her affidavit Jeanette Taft sons set forth we mother) makes clear that an officer held a grant affirm the district court’s shotgun within six to seven inches of Onte’s judgment on the excessive force claims. while *4 head he was searched and handcuffed. sympathize that We reiterate we with the any threatening At no time did Onte make undoubtedly Appellants; was a search gestures, police movements or and a second frightening experience. Although the offi separated protected vehicle and the officers cers maintain that the search was conducted (the searching Onte from his mother’s vehicle police in appropriate proce accordance with might in automobile which Wooten still be dures, we need not and do not reach this hiding). deny Officer Vines does not these question. presented by The issue the ex facts. cessive force claims is not whether the offi Moreover, though police officers’ affi- police procedures, cers violated or even uniformity style davits share a in and sub- fact, they, in whether violated the Fourth stance, important there an is difference. Rather, Amendment. is they While most of the officers claim never whether, confronted with the facts of this “point[ed gun directly anybody’s at a] head case, police reasonable officers should have against anyone’s press[ed] person,” or it Offi- clearly known that established constitutional cer Vines’ affidavit states that he “never prohibited law the methods used in the placed weapon against [his] or near the head Accordingly, search. cannot We so hold. any any occupant child or other of the summary judg the officers were entitled to vehicle.” Officer Vines does not therefore qualified immunity ment on the basis of on deny pointed shotgun that he his at some- the excessive force claims. (i.e., deny pointing one’s head he does not holdings, In view these the motion for shotgun fifteen-year-old at the head of discovery in continuance order to conduct is facing while Onte was on his knees the head- necessarily moot. car). addition, lights patrol In Officer granting The order of the district court Vines admits that he had a shell chambered summary judgment to in the officers is all shotgun during this time. respects. genuine I believe that this evidence raises AFFIRMED. police issues of material fact on whether the officers’ conduct as it related to Onte Taft MICHAEL, Judge, concurring Circuit po- was and excessive whether a reasonable part: and clearly lice officer should have known that agree majority I opinion except with the prohibited established law such conduct. it to relates the excessive force claim of Township, See Baker v. Monroe claim, fifteen-year-old Onte Taft. As for that (8d Cir.1995) (reversing grant 1192-94 genuine I there believe are issues of material summary judgment supervis- in favor of precluding summary judgment fact on the ing police officer warrant did not au- when police qualified immunity. officers’ defense of plaintiffs thorize search and detention of and In his affidavit presented Officer Vines concedes that factual evidence issue whether he knew Onte Taft supervising actually was not Wooten immedi- officer knew and ac- ately after Onte exited his quiesced handcuffing, mother’s vehicle. to other officers de- Also, police taining, guns directly officers admit pointing plain- that Onte was and at placed Haskins, patrol tiffs); knees in the front of a McDonald Cir.1992) (defendant police police officer to sit vehicles and that one of them immunity when offi- to not entitled was made to kneel front of one of the child’s head and gun vehicles, to minor cer held facing headlights. And pull trigger). threatened they alleged they subjected that physical searching intensive female grant of reverse the I would therefore —the plaintiffs alleged that the officers had judgment as it relates to Onte breasts, “fondl[ed] and their mishandl[ed]” respectfully I claim of excessive force. Taft’s buttocks, groins, plaintiffs and the male dissent to that extent. alleged groins that grabbed their had been MURNAGHAN, dissenting: Judge, they “great with such force that suffered pain physical 9, 1993, harm.” February evening of On the mother, children, her minor plaintiffs —a weapons No were discovered to be in the minor cousins—and a friend the children’s plaintiffs’ possession and the game and were had attended a basketball suspect plaintiffs’ vehicle they young returning First took the home. entirely turned out to be unfounded. home, far from friend in an area not removed suspect where a murder wanted many plain- The officers contested of the *5 plaintiffs The was believed to be located. allegations, contending, example, tiffs’ with the sus- had no connection whatsoever they weapons that lowered their as each driving plaintiffs were to- pect. While the car, they child exited the that did not cock homes, police believing the ward their own — weapons click intimidating their in an just exited the mobile plaintiffs had manner, they and that conducted no more suspect resided— park home which the pat-down than routine searches. Because suspect might be concluded that the murder genuine issues of material fact existed "with plaintiffs’ car. The officers concealed conduct, respect to the nature of the officers’ stopped required ear and each of the proper and because the outcome of the case Up the vehicle. to that plaintiffs to exit description turned on whose of the officers’ point, qualifiedly I the officers were believe believed, summary judg- conduct was to be immune. qualified immunity grounds on ment was in- however, thereafter, is a happened What See, appropriate. e.g., Rainey Conerly, v. which should not disputed factual matter (4th Cir.1992) 321, (holding 973 F.2d 324 against plaintiffs on have been resolved properly that the district court denied summary judgment. the officers’ motion for immunity-based defendant’s motion for sum- summary judgment, non-moving ‘the “[O]n mary judgment “a determination of because party to have his evidence as is entitled absolutely actually happened is neces- what assumed, forecast his version of that dis sary to decide whether could [the defendant] pute accepted, and the benefit of all favorable ” reasonably have believed that his actions Inc., Liggett Group, v. inferences.’ Henson lawful”). Taking plaintiffs’ allega- were Cir.1995) (4th 270, (quoting true, accept majority’s tions as I cannot Conhwright Westinghouse Corp., 933 Elec. finding a not that reasonable officer would (4th Cir.1991)). In F.2d their veri clearly “that consti- have known established alleged complaint,* plaintiffs fied that prohibited used in tutional law the methods against them excessive force had been used I the search.” ante at 684. would See that, They alleged respects. in several even therefore reverse the district court’s though they complied protest without each summary judgment that the officers were car, when ordered to climb out of the Indeed, immunity. to entitled guns frighteningly cocked and officers’ sustaining ruling, the ma- the district court’s They alleged clicked and aimed at them. perilously jority to me to come close that two of them were handcuffed and made seems * personal complaint knowl- is the tained therein are based on We have held "a verified Griffin, opposing summary edge.” equivalent Williams v. of an affidavit for Cir.1991). judgment purposes, allegations when the con- granting police officers absolute immuni-
ty.
Decent behavior was owed to the weakly
plaintiffs; based that a plaintiffs’ located in suspect
murder justifying
car falls far short of the officers’ Though police surely officers
actions. are criminals, protect us from I
needed to believe unwisely majority unnecessarily point at which toward we will
moves us from officers protection them-
need
selves.
Accordingly, permitted I would have trial, go
case to to trial. Once at the officers
might very successfully well have defended
their actions and demonstrated entitlement qualified immunity. But at the
judgment stage, with material facts dis-
pute, qualified immunity an award of was not Charach, ARGUED: Hunt L. Federal appropriate. Defender, Charleston, Virginia, Public West Appellant. Margaret Agnes Hickey, As-
I therefore must dissent. Ervin Charleston, Attorney, sistant joins dissenting opinion. in this Virginia, Appellee. West ON BRIEF: Fulton, *6 Cooper C. Assistant Federal Public Defender, Charleston, Virginia, Ap- West pellant. Betts, Rebecca A Attorney, Charleston, Virginia, Ap- West pellee. LUTTIG,
Before MURNAGHAN and Judges, MICHAEL, Circuit H. JAMES America, UNITED STATES Judge Senior United States District Plaintiff-Appellee, Virginia, sitting by the Western District of designation. Bobby Ray SIMMONS, Defendant- by published opinion. Affirmed Judge
Appellant. Judge LUTTIG wrote the in which No. 95-5460. MURNAGHAN and Senior MICHAEL concurred. United Appeals, States Court of Fourth Circuit. OPINION Argued April 1996. LUTTIG, Judge: May
Decided The sole before the court in this cocktail, case is a compris- whether Molotov ing glass gasoline bottle filled with and a fuse, cloth is a “destructive device” as that 5845(f)(1), § term is defined in 26 if U.S.C. physically possess the defendant does not lighter light match or with which to is, Concluding device. it we affirm the defendant’s conviction.