*1 court is affirmed.6 the district ment
AFFIRMED Rep WATERMAN, Personal R.
Michael T. Estate of Josh
resentative Deceased;
Waterman, Ruth G. Water Waterman, Plain
man; M. Roland
tiffs-Appellees, Keel; BATTON; Kenneth P.
Michael Heisey,
Christopher Defendants-
Appellants, Maryland, Defendant.
State
No. 04-1096. Appeals, Court
United States Circuit.
Fourth 30, 2004.
Argued: Sept. 3, 2005. Jan.
Dеcided: United States Sentencing Sentencing Guidelines. Although involves this case Cir.2004) Hammoud, Guidelines, Blakely held that we have - -, (en banc). S.Ct. Washington, U.S. (2004), not invalidate does L.Ed.2d 403 *2 (MdTA) (collec- Authority
Transportation tively, “Appellants”) appeal a district court summary denying their motion for order immunity in judgment based on *3 they action alleging unconstitution- against ally employed deadly force Josh and We reverse remand. Waterman. I. summary reviewing the denial immunity, qualified on we
judgment based true district accept as the facts the may reasonably in- concluded be court Kruger, Assis- ARGUED: Karen June in the from record when viewed ferred General, the Attor- Office of Attorney tant plaintiff.1 to the See light favorable Baltimore, Ap- General, Maryland, for ney George’s County, Gray-Hopkins v. Prince & Connolly, Murphy John J. pellants. (4th Cir.2002). 224, F.3d 229 To Baltimore, Shaffer, L.L.C., Maryland, for fully thаt the court has not extent district Curran, Joseph BRIEF: J. Appellees. ON on which its decision is set forth facts Jr., Maryland, Mi- Attorney General based, facts rea- we assume the Berman, Litiga- Deputy D. chael Chief sonably be inferred from record tion, Baltimore, Maryland, Appellants. for light in the most favorable to viewed Shaffer, & Murphy, Murphy J. William Bass, plaintiff. See Winfield L.L.C., Baltimore, Maryland, Appel- for (4th Cir.1997) (en banc). 525, Em- 533-35 lees. reveals the follow- ploying principles these MOTZ, WILKINS, ing facts. Judge, Chief Before HUDSON,, and United Judge, Circuit the afternoon of November On for Judge District the Eastern States p.m., Waterman was approximately 3:11 sitting by designation. of Virginia, District In- Washington driving Baltimore MdTA by published Airport remanded terminal area. Reversed and ternational Judge wrote opinion. Chief WILKINS Eric observed Farrow Waterman Officer Judge majority opinion, which traveling per hour a 25-miles- miles ' Judge wrote joined. MOTZ HUDSON zone, and Farrow activated per-hour dissenting opinion. lights patrol on his emergency and sirens pursuit. When and initiated vehicle
OPINION MdTA stop, Officer did Waterman WILKINS, Judge. Chief Watkowski, pa- another who Adam vehicle, lights his sirens Keel, trol activated Batton, Kenneth Officers Michael Maryland joined pursuit. Heisey of Christopher record, viewing gleaned from district court could contend 1: testimony plaintiff. considering of several erred in most favorable jurisdiction review this County, We lack Gray-Hopkins George’s witnesses. v. Prince interlocutory appeal Cir.2002); of the denial issue in an v. Leon Poe rather, accept immunity; we must (2d Cir.2002). ard, 282 F.3d district concluded the facts that court Waterman, followed As Officers heard that Waterman had reached under Watkowski communicated his seat. Farrow and MdTA radio with the officers located at emerged When Waterman from the McHenry the toll the Fort Tunnel plaza later, Tunnel approximately two minutes (the Tunnel). At approximately p.m., 3:16 plaza, he drove toward lane 12 of the toll reported
Watkowski to Communications at By the left-most northbound lane.4 this in a the Tunnel that was involved “10- time, pursuit had continued for more (chase in progress) heading north- 80” than 10 minutes. As drove to- bound on 1-95 toward the Tunnel. Com- ward the at a plaza speed, keeping normal relayed message munications to all *4 safe distance from front of vehicles gold as a units and identified the vehicle him, Ap- five uniformed MdTA officers— North plate Mazda with Carolina license pellants and Officers Sean Hames and Appellants MZL-1595. heard that mes- Lance emerged from around the Bellman — sage. Other officers stationed near the concrete island located 11 between lanes plaza toll that they standing radioed drawn, and 12. their weapons With by. permission One officer received to officers approached Waterman’s vehicle prepare sticks”2 in “stop the northbound sides, from and passenger yelling the front lanes on north the toll plaza, side of stop. for Waterman to and someone radioed that the sticks were Waterman slowed approached as he being prepared. plaza, toll then coasted for about one sec- At approximately p.m., approximately per 3:17 Officer ond at 11 miles Wat- hour. kowski radioed to Communications that The vehicle ahead of then Wаterman’s be- “just gan Waterman tried to run me off Immediately move forward. there- after, trying road ... he’s to take us off the rear Waterman’s vehicle Batton, road.” dipped up Waterman and down rose back motion —a (D.Md.2003) (alteration 709, 714 F.Supp.2d “lurching” officers described as or (internal in original) quotation marks “lunging” began omit- forward—and Waterman ted).3 all Appellants heard that communi- general accelerate in the direction of the Additionally, cation. approximately plaza at 3:21 toll officers ahead of him. p.m., just acceleration, after Waterman and the At the trailing instant Officer Keel Tunnel, vehicle; officers entered Watkowski ra- was about feet ahead of the ahead; Heisey, dioed to Communications Waterman Officer 38 feet Officer Hames, all ahead; “rеached under seat have units 10- a little more than 23 feet (use caution). (internal quotation Batton, 0” Id. and Officer a little more than 16 omitted). Heisey marks Although Officer heard the feet ahead.5 none of the officers 10-0 warning, Appellants but none of the were directly in front of Waterman’s vehi- Stop by 2. puncturing disable sticks vehicles did not have access to this they their tires. evidence when encountered Waterman. systems 3. Video 4. plaza. Farrow’s and Watkowski’s There are 24 lanes in the Lane 12 is lane, M-Tag meaning vehicles recorded of the events that authorized vehi- leading up including shooting. may proceed slowly through plaza to and cles The resulting stopping has pay video been transferred into DVD that lane a toll. without joint appendix. is format and in the The question regarding video creates some wheth- It is unclear from the where record Officer actually try er did to run Waterman Watkow- Bellman was in relation to other officers. However, undisputed appear ski off the road. it He does not to be visible video. minutes after his vehicle thigh. About two cle, only a feet they stood few projected pulled the vehicle’s to a stop, side of came several passenger path.6 attempted from his vehicle and Waterman An ambulance then administer CPR. lurching the vehicle Perceiving Hopkins transported Waterman John begin- as the acceleration Waterman’s Center, pronounced Medical where was over, Ap- run them ning attempt of an p.m. 4:10 It later determined dead at as weapons their soon began firing pellants the shot that entered Waterman’s the оfficers As accelerated. fatal, rapidly meaning neck him, reached a Waterman’s vehicle shot him within seconds to two min- killed per miles top speed approximately utes. all passed vehicle then hour. Waterman’s officers, avoiding them several representative personal Waterman’s temporarily behind an- stopping
feet and (thé Estáte) initiated this action parents path. Appel- its As blocking vehicle other City, alleg Court for Baltimore Circuit Waterman, toward lants scrambled ing Mary of action under several causes at him weapons to fire their continued *5 a hi Fourth Amend land law addition side of the vehicle passenger from the (West claim, § see 42 1983 ment U.S.C.A. behind, ceasing fire as he from their 2003). here, is As relevant Estate all, plaza. In through the toll with- passed tiiat the officers violated Water alleged af- period in approximately-six-second rights Fourth Amendment un man’s Waterman’s, forward, ter vehicle lurched force. justifiably employing deadly Appel rounds, Batton four Officer Officer fired removed the case to federal court lants Keel, two, two. Heisey, and Officer and, discovery, for following moved sum passed Waterman’s vehicle When includ mary judgment grounds, on several lane, stop the toll ran over through ing they qualified that were entitled Water- Officer followed sticks. Watkowski immunity on the Fourth Amendment through lane his vehicle and man Appel The court denied claim. district him, bringing both vehicles collided with entirety. motion in its See Water lants’ stop. a man, 294 at 739. F.Supp.2d gunshot five sustained grazed right a that his front wounds: shot II. shoulder; a that entered front shot portion of the dis- Appellants aрpeal recovered right side of his neck and was motion for shoulder; denying their that trict court order left went from his shots im- arm, summary judgment based on right and left through right thigh, his path vehicle that the record were so-far out of district court concluded The However, any danger. rea- in serious the moments not be supported the inference that in jury interpret the testi- have shooting sonable would none of the officers before mony video of various witnesses directly in of Waterman's vehicle. The front (No court, however, testimony suggests exactly recording. that the specify how did.not depict properly events that path does not it assumed the video to the vehicle close occurred.) exactly Regardless of where each acceleration. were at the instant of officеrs positioned Waterman accel- officers as officer characterize the Some witnesses erated, that no doubt at the video leaves the side of the vehicle or approaching from acceleration, were officers there being of it. Were there no video moment in front here, enough vehicle that positioned close recording of events issue some ap- run over in give could have them testimony might rise Waterman be sufficient this proximately second.' one inference that to a reasonable 476
munity.
authority
conclude that
the district
that
ing
We
must be such
the unlaw-
denying Appellants
court erred in
sum-
fulness
the conduct is manifest. See
mary
635, 640,
on
judgment
qualified immunity
Creighton,
Anderson
U.S.
483
(1987);
issue.
S.Ct.
L.Ed.2d 523
Alford,
Pritchett
A.
Cir.1992) (explaining
“[t]he
fact that
right allegedly
an exact
violated has not
Quаlified immunity protects “all
recognized
earlier
specifically
by any
been
but the plainly incompetent or those who
a
prevent
court does not
determination
knowingly
Malley
violate the law.”
it was
‘clearly
nevertheless
estab-
335, 341,
Briggs, 475 U.S.
106 S.Ct.
qualified immunity
lished’ for
purposes”
(1986).
protects
L.Ed.2d 271
It
law
“ ‘[c]learly
and that
established’ in this
enforcement
guesses
officers from “bad
context
only already specifi-
includes not
gray
areas” and ensures that
are
adjudicated
cally
rights, but those mani-
liable only
transgressing bright
“for
lines.”
festly
general
included within more
appli-
Sumner,
Maciariello v.
cations
the core
principle
constitutional
(4th Cir.1992). Thus, government officials
invoked”). A
right
determination
a
performing discretionary
are en
functions
clearly
established
based on
con-
qualified immunity
liability
titled to
from
authority
jurisdiсtion
trolling
for civil damages to the extent
“their
question or on a “consensus of cases of
conduct
clearly
does not violate
established
persuasive authority
such
a reason-
statutory
rights
or constitutional
which
able officer could not have believed that
person
would have known.”
*6
his actions were lawful.”
Layne,
Wilson v.
800, 818,
Harlow v. Fitzgerald, 457 U.S.
603, 617,
1692,
526 U.S.
119 S.Ct.
143
(1982).
2727,
102 S.Ct.
73
L.Ed.2d 396
(1999).
L.Ed.2d 818
analyzing
appeal
rejection
from the
of a
qualified immunity defense,
first
our
task
The right
alleges
the Estate
was
is to identify
specific right
the
the
here
violated
is Waterman’s Fourth
plaintiff
was infringed by
asserts
the chal
right
Amendment
to be free of unreason
Waters,
lenged
Taylor
conduct. See
81
seizures,
able
a right which includes sei
(4th Cir.1996).
429,
F.3d
433
We then ask
accomplished by
zures
excessive force.
facts,
whether the
viewed
Buchanan,
520,
See Jones v.
527
plaintiff,
favorable to the
demonstrate a
(4th Cir.2003). The test for whether force
right.
violation of that
See Saucier v.
to
employed
effect a seizure is excessive is
Katz,
194, 201,
2151, 150
533 U.S.
121 S.Ct.
“ ‘objective
one of
reasonableness’ under
(2001).
do,
L.Ed.2d 272
If
we consid
Connor,
the circumstances.”
Graham
whether,
er
at
time of the claimed
386, 399,
1865,
490 U.S.
109 S.Ct.
104
violation,
alleged
right
to
violated
(1989).
L.Ed.2d 443
In determining
was clearly
meaning
“a
established —
excessive,
whether force was
a court must
reasonable official would understand that
weigh
quality
“the nature and
of the intru
what he
doing
right
violates”
sion
on
individual’s Fourth Amend
(inter
202,
question. Id. at
Although omitted). the exact at quotation conduct 396 marks issue need not have been “police held unlawful in Because often officers are forced to order for the governing law an officer’s split-second make judgments circum —in clearly established, actions to be tense, uncertain, the exist- stances that are and rap-
477
1865,
justi-
397,
only
deadly
that the use of
force
id. at
109 S.Ct.
evolving,”
idly
per-
by
posed
be evaluated from
fied
the threat Waterman
facts must
opposed
on
of a reasonable officer
them and their fellow officers—as
spective
scene,
hindsight
must be
our
general public
and the use
confine
anal-
—we
396,
Thus,
1865.
avoided,
at
109 S.Ct.
question
see id.
to that issue.
be-
ysis
of the of-
Additionally,
jury
the reasonableness
is whether a reasonable
could
fore us
dangerous
creating
conclude,
ficer’s actions
on
forecast in
based
the evidence
Fourth
record,
is not relevant
by
situation
thаt a
the offi-
perception
rather,
analysis;
reasonable-
Amendment
a threat of seri-
posed
cers Waterman
the informa-
determined based on
ness is
harm to them would have
physical
ous
the mo-
by
possessed
tion
the officer
conclude that no
been unreasonable. We
Elliott v.
employed.
force is
ment that
jury
that conclu-
could reach
reasonable
(4th Cir.1996);
Leavitt,
F.3d
643
initial
regard Appellants’
with
shots
sion
Ruffin,
Greenidge v.
that it could
that the shots
but
conclude
Cir.1991).7
passed
fired after Waterman
officers
unconstitutional. We address the
Here, Appellants seized Water
constitutionality
groups
two
these
shooting
important
him.
It is
by
man
seriatim.
shots
aof
recognize
“[t]he
intrusiveness
un
deadly
force is
by means
seizure
1.
Garner, 471
Tennessee v.
U.S.
matched.”
(1985).
vehicle lurched
When Waterman’s
1, 9,
L.Ed.2d
105 S.Ct.
forward, the
were forced to imme
officers
Nevertheless,
may employ
officer
diately
at
decide whether Waterman
“proba
has
deadly force when the officer
ahead
to assault
officers
poses
tempting
suspect
that the
cause
believe
ble
harm,
only
to drive
him or whether
intended
physical
serious
either
a threat of
them,
leaving
unharmed. To
them
or to others.”
Id. at
the officer
under
these
extent
S.Ct.
*7
ponder
to
could have taken time
facts
B.
lurching
of the vehicle and
whether
begin
acceleration were
whether Waterman’s
question
turn to the
of
We now
them,
toward
aggressive
of an
move
record,
ning
in
most favor-
viewed
Estate,
have
several factors
they would
considered
Appellants’
shows that
able to the
it
would have
un-
that was. Those
suggesting
shooting of Wаterman constituted
(1)
Waterman, by any
that
ac
Fourth
included
seizure under
reasonable
count,
rationally in
acting
leading
not
argue
was
Appellants
Because
Amendment.
Point,
City High
that we
Altman v.
7. We note that
Estate maintains
Cir.2003)
(4th
(reversing district court
of the district
204-07
may
revisit the conclusions
not
immunity and
denying qualified
con-
Appel-
regarding the
order
reasonableness
court
cluding
actions were reason-
accept the
that officers’
we
actions because
must
lants'
Elliott,
able);
(explaining
at 644
that
by
reason-
F.3d
court to be
facts found
district
summary judgment
reviewing the denial of
ably
evidence.
inferrable from the forecasted
although
immunity,
we
may
question the
on
disagree. While
not
based
We
we
by
a
the dis-
may
review determination
assumed
not
that the district court
circumstances
gives
evidence
Appеllants'
court that the forecasted
analyzing
trict
the reasonableness
particular
actions,
that
specifi-
to a reasonable inference
rise
the reasonableness itself—and
occurred,
whether
jury
we
review
conduct
cally
question of
a reasonable
what
court
district
consti-
the facts assumed
regarding
determine
reasonableness —is
could
See,
force).
e.g.,
tuted excessive
we
de novo.
that
consider
an issue
directly
on a
the officers
more-than-10-rainute
vehicle so that the officers were
(2)
chase;
despite
that he was not stopping
his path.
seeing the
ahead
approaching
officers
course, the critical
that
reality
Of
here is
(3)
drawn;
weapons
him
their
that he
with
did not
to
the officers
have even a moment
accelerаting in
general
direction of
pause
conflicting
ponder
many
these
(4)
officers; and,
importantly,
Graham,
396-97,
factors. See
U.S.
just
reported
that Officer Watkowski had
(“The
Davis
used th
a man
automobile
give
probable
idly
policemen
evolving
ner
reasonable
the amount of force
—about
cause
believe that
had
a dead
is_ necessary
particular
it
become
that
in a
situa-
armed.”).
ly weapon
tion.”).
with which Davis was
At the instant
thаt Waterman’s
hand,
other
On the
officers also
forward,
vehicle lurched
the vehicle could
have
following
would
considered the
fac
Heisey
have reached Officers Batton and
weighing against
tors as
a conclusion
in about one second even without acceler-
trying
to run over them:
Waterman
further,
ating
and in
if
even less
time
(1) that Waterman had not
reck
driven
Thus,
had continued
accelerate.
if the
lessly
the 27
seconds between
time
paused
instant,
for
even an
emerged from
the Tunnel and the mo
risked
their last
losing
chance to defend
ment he accelerated in
general
their
di
themselves.
(2)
rection;
that there was no visible dam
Taking into consideration all of these
age to Waterman’s vehicle or the vehicles
factors, particularly
split-second
nature
(3)
him;
pursuing
оf the officers
that other
decision,
we conclude
as matter
flight,
than his
no information indicated
law
probable
had
cause
any
had
Waterman
committed
serious
believe that Waterman’s
prior
oncoming vehicle
reportedly assaulting
crime
Offi
(4)
vehicle;
posed an immediate
with
threat of
phys-
cer Watkowski
his
serious
yet
had not
ical harm at least to
increased his
Officers Batton and
past 15
speed
per
miles
hour or turned
Heisey.8
his
While reasonable officers would
points
opinions
8. The Estate
summary judgment
some
warrant
denial
because
lay witnesses that
did
Waterman's vehicle
was not
witness
aware of the
events
*8
appear to be a threat
preceded'
shooting
gave
to the officers ahead and
the
that
the officers
expert testimony
to
that
use
suspect
attempt
the officers’
of
reason
that
to believe
would
deadly
(internal
pre-
force was unreasonable. Neither
quotation
to
them
assault
marks
Appellants'
omitted)).
summary
cludes
entitlement
summary judgment pre-
Nor is
judgment.
ignoring
conclusory
Even
by
expert’s
the
na-
cluded
opinion
the Estate’s
that
lay opinions,
of the
opinions
Appellants'
ture
those
do not
actions were unconstitutional.
genuine
a
they
create
issue.
"Opinions,
expert
lay,
of fact because the
only
or
as
are
witnesses were
good
upon
unaware of tire fact most criti-
as the evidence
they
which
are
probable
analysis:
11;
cal
the
cause
that
at
Washington
based.” Id.
1280 n.
cf.
States,
reportedly
33,
Cir.1954)
attempted
(9th
Waterman had
to use
United
214 F.2d
43
weapon
his vehicle as a
(concluding
expert opinions
in order to avoid
that
sup-
did not
verdict,
being captured only
entering
port jury
part
minutes before
"[o]pinion
because
Pace,
plaza.
the toll
See
only
good
479 (8th Jarman, 620-21, 617, 340 F.3d 623-24 that Water possibility recognized have Cir.2003); Raso, by them F.3d only to Abraham v. intended accelerate man (3d them, they Cir.1999); also—in the City at rather than 293-94 Acosta & have Francisco, had to decide—could instant County San of in the face (9th the acceleration interpreted Cir.1996); City Fraire v. 1146-47 of a force the initiation (5th show of their 1268, 1274-76 Arlington, F.2d cap to avoid attempt Waterman second Cir.1992). certainly agree with We weapon his as a by using vehicle ture here, And general proposition. this See personnel. law enforcement against projected closeness officers Garner, 105 S.Ct. 471 U.S. crucial of Waterman’s vehicle is path deadly an use (holding that officer justi- deadly force was our conclusion that fleeing “threatens the suspect a force when Any factfinder consider- fied. reasonable Thus, although weapon”). a officer with evidence ing all of forecasted fire and could held their Appellants have would determine that Waterman record acceler the chance Waterman’s taken accelerating Appellants’ general di- was purpose in traffic not for ation Batton and Officers Heis- rection an offi against another assault committing have been run over about one ey could cer, simply does Constitution “[t]he slightly if had turned second Waterman their lives gamble with require police them. toward harm.”9 a threat of face of serious Elliott, Edinburg, F.3d at 641. Scott Cir.2003), point. this is instructive on for sum- denying Appellants’ motion There, a man to steal the vehi- attempted court relied the district mary judgment, off-duty from a gas of an officer cle officers fact none of the heavily on the Scott, 346 F.3d at parking station lot. See in the directly path Waterman’s were behind yelled 754. As the officer from lurched forward at the moment it vehicle stop, for the man to man automobile opened doing, In so fire. and the attempting to uр quickly, backed either propo- cited several cases for the court acting recklessly officer down or run the attempts to that when an officer sition See id. at respect possibility. to that with against justify deadly his use force stopped backing thief 758. When the by claiming oncoming vehicle driver of through began to off up speed trying the vehicle prevent that he was lot, firing began the officer over, parking position of running someone from to do so the vehicle exited continued when path of person relative to the lot. id. at 754-55. One parking Hernandez v. See important. vehicle officer, suspect against a forced make immediate correct tion of an threat —whether decision, clearly split-second and therefore on his reason- or not—was relied justi- deadly initial use of force gun that their had seen a that another officer able belief fied. though suspect's the sus- hands even in front him pect’s hands handcuffed having *9 9. The situation faced here— weap- a saw defendant officer never and the split-second a a whether sus- determine in Rizzo, on); Slattery 215-17 using weapon his as a pect is vehicle —is Cir.1991) (4th deadly (holding use of analogous an officer forced scenario of suspect justified in vehicle force was split-second as to whether a decision to make raise his hands repeatedly refused orders to suspect deadly against who he force to use holding perceived that he and the officer See, McLenagan e.g., has a firearm. believes something). 1994) Karnes, (4th Cir. deadly justified (holding use of force shots officer’s killed thе thief. See id. not true of shots fired after Water- appeal at 755. On from the grant passed sum- man’s vehicle the officers and the (the mary judgment to the officer in the officers danger subse- were out of subse- suit, shots). § quent quent Appellants rely Seventh Circuit held on Rowland deadly justified Cir.1994), that the use of Perry, force was F.3d 167 protect bystanders from oncoming support argument sto- of their that the subse- shots, quent len vehicle. See id. at 758-59. The court which occurred mere seconds rejected specifically shots, the contention that the after the initial should not be ana- bystanders fact that lyzed conclude, no were in separately. however, the direct We path precluded of the vehicle separate analysis the use of appropriate. is deadly force when peoрle several were in Rowland, In officer, a law enforcement vicinity the immediate path. of the id. Perry, Officer saw a woman drop a five course, at 759. Of Scott differs from the bill, dollar which Rowland retrieved with case at bar Scott of the much Rowland, out' attempting to return it. See probably concern was that the thief would 41 Perry F.3d at 171. approached Row someone, accidentally hit while the con- and, land at Perry’s request, Rowland of cern here is that again Waterman would woman, money fered the who re intentionally use his vehicle a weapon. it, claiming fused that it was not hers. See just But as the officer in Scott had reason Perry id. could not hear the words be to believe that the thiefs recklessness two, tween the but believed that Rowland might cause him to turn out of his then- “simply money wavеd the in the face of projected current path, here Appellants openly [the] distressed and tearful” wom had reason to believe that ag- Waterman’s an.' Perry pursued Id. Rowland and even gressiveness toward trying to cap- tually grabbed jerked his collar and him him suggested ture he was about to turn aroirnd. See id. at 171-72. Frightened, yet toward officers not in his path. direct Rowland instinctively tried to escapé Per ry’s sum, grasp. Perry punched Rowland, then the officers here were faced threw him to suspect ground, with a positioned well his seriously “thr[ew] weight injure against right leg or kill Rowland’s one or more of them with his wrench[ed knee until it possibly his] within a cracked.” Id. fraction of a sec- vehicle— at 172. ond—if employ deadly did not force. According to the best information avail- In concluding that Perry was not enti- able, thе suspect had used his vehicle as a tled qualified immunity in Rowland’s weapon against another officer min- just lawsuit, subsequent this court stated the utes before. Based on this information following: and the discussed, other factors we hold as In his appraisal objective rea- a matter of law that a reasonable officer sonableness of the force against used could have believed at the instant of accel- Rowland, Perry urges what amounts to eration that presented a threat a segmented view of the sequence of physical of serious harm. Appellants thus emphasizes events. He the resistance immunity entitled re- offered during Rowland struggle garding the initial group shots. with Perry, separating this fact from the story. alone,
rest of the This resistance argues, enough Perry to make The Estate mаintains that if even reasonably believe that force was neces- *10 initial justifiable, shots were the same sary. Furthermore, the defendant di- that should parts. any idea of the events be re- of force into two the use
vides
of
viewed outside the context
the conduct
grabbed Rowland’s
First,
initially
Perry
there,
that
the
precipitated
the
attempts
to his
to flee.
response
in
collar
seizure—
a five
simple failure to return
dollar bill.
Second,
the
of force
Perry escalated
use
resistance, cul-
in
to Rowland’s
response
readings are
Although
plau
both
leg-twisting maneuver
minating in the
sible, we
latter reading
conclude that the
is
suspect.
finally subdued
the
that
the better
It is established in this
one.
act of
way, each distinct
in this
Viewed
of an
circuit that the reasonableness
offi
what
given
force becomes
cer’s actions is determined based on the
point
pro-
in this
knew at each
Perry
by the officer
possessed
information
at the
gression.
employed.
moment that force is
See El
the
seems to
to miss
approach
This
us
liott,
simply
To
Applying Timothy Pittman, feud with principle this we Hudson. See record, conclude that in at day May 1992, viewed 119. One in Estate, light favorable to began shows Hudson to drive in away his vehicle passed him; once Waterman’s vehicle as approached Banks Banks’ arm officers, safety vehicle, the threat to their entangled was became in the resulting eliminated and justify thus could not in being dragged Banks for 25 or 30 feet. subsequent shots. A factfinder could rea See at id. 120. When the vehicle sonably conclude that pur as the officers right, turned to the Banks was thrown to vehiclе, they sued Waterman’s knew or the side. See id. at 120. picked He him- should have known that vehicle, Waterman had self up, ran toward the and fired at passed them without veering their di it sped away. See id. Nelms fired circumstances, rection. these ‘time, Under a injuring Pittman, the same passen- a could, reasonable factfinder ger determine the automobile. See id. When any fired, belief officers continued at Nelms the vehicle approximately was that point to face an him, imminent threat of 25 feet front of moving away, physical harm serious would be unreason and Nelms could see Banks had not able. run been over and that longer he was no danger. See id. We held that because
C. “the entire only series of events took a few seconds,” short Having during which determined that the rec Banks inwas ord, dangеr, serious viewed most favor because the situation “tense, Estate, uncertain, able to the rapidly shows the subse evolv- quent unconstitutional, ing,” employed shots were the force we now was not excessive clearly (inter- consider under whether that law. unconstitutionality established Id. omitted). clearly quotation nal established on marks November 2000, when the shooting occurred. We There is no relevant distinction between conclude that it was not and thus that facts Pittman and those here. Appellants were entitled to im cases, both the officers employing deadly munity for the subsequent shots as well. force had information that suspect had discussed,
As we have necessary prem- recently assaulted officer with his vehi- ise to our Also, conclusion that tense, forecasted cle. both presеnted cases rap- evidence could situations, demonstrate the idly changing unconsti- where the threat tutionality subsequent shots is that justifying deadly the use of force ended an imminent threat of physical only serious seconds before the shots in question *12 III. holding that light In of our fired. was not exces- deadly force
Nelms’ use sum, reverse the denial of sum- we clearly established law that was sive under on the mary judgment 1992, true of the same must be May in claim and remand for Fourth Amendment shots here.10 subsequent consistent with this proceedings further whether thus becomes question The opinion.11 here, employed of the force excessiveness 1992, none- AND REMANDED. May in REVERSED unclear although 28, to November prior clarified theless that it was not. We conclude
2000. We
MOTZ, dissenting.
DIANA GRIBBON
de-
that other circuits
already
have
noted
regret,
and
I dissent.
respect
With
passing
that a
risk
during
period
this
cided
him to
does not authorize
to an officer
face some of
Law enforcement officers
after he
moments
deadly force
employ
difficult,
dangerous
and
grueling,
the most
passing
recognized
have
should
communities; they
are called
work
our
Abraham,
294;
F.3d at
risk. See
judgments
upon
“split-second
to make
—in
Ellis,
9;
Dickerson,
at 1162 n.
101 F.3d
tense, uncertain,
that are
circumstances
However,
did
this circuit
at 247.
Connor,
evolving.” Graham v.
rapidly
discussed,
Indeed,
we
have
not.
as we
109 S.Ct.
490 U.S.
Rowland,
decision,
sus-
that was
issued
(1989).
are, and
All of us
L.Ed.2d 443
application
that an
reading
ceptible to
be,
accept
those who
grateful
should
a few seconds
for but
of force that extends
challenges on our behalf.
these
segments
temporal
into
parsed
cannot be
However,
gratitude
our
we cannot let
act in
reviewing
each
purpose
for the
limits the Consti-
admiration erode the
had at
the officer
light of the information
by police
Dickerson,
on the use of force
imposes
tution
that moment.
haz-
fatal force. The
especially
in this
(interpreting Rowland
1162 n. 9
officers—
not authorize
simply
work
do
uncertainty
created
ards of
way). Considering
unbridled use
engage
regarding
Rowland
by Pittman
an offi-
exasperated
how
force. No matter
may legally employ
an officer
whether
becomes,
not
does
the Constitution
threat of
cer
response
to a
deadly force
speed-
for
him
a motorist
to shoot
permit
he should
harm moments after
serious
in the
officer
ing
a reasonable
had
elimi-
that the threat
been
have known
—unless
probable
have had
would
unconstitutionality
position
same
nated, we hold that the
necessary
protect
to believe
clearly
not
cause
subsequent
shots
from “a threat of serious
or others
in November
himself
Maryland
established
1865;
396,109
Id. at
S.Ct.
physical harm.”
10. It
we
suggests
if
conclude
Estate
does
11. The
important
that Pittman
to note
court do
holding
the sub-
the district
assumed
preclude our earlier
facts
not
favor-
sequent
the issue
genuine
shots—viewed
issue of fact on
create a
unconstitutional.
the Estate —were
permitted
able to
immunity,
it should
only whether the force
addressed
Pittman
proper-
court did not
argue
the district
clearly
law
es-
under the
there was excessive
light most favorable
ly view
record in the
May
id.
It did not
1992. See
tablished
However,
Estate does not
to the Estate.
was in fact exces-
the force
decide whether
by the district court
specify any errors made
(explaining this
& n. 2
See id. at 119
sive.
any.
aware of
regard, and we are not
in this
distinction).
Garner,
1, 11,
Tennessee v.
.opinion.
U.S.
105 trict court’s excellent
I would
(1985).
judgment
Kenneth and Christopher
fired nine rounds of ammunition at a car Waterman, by
driven Josh who sustained gunshot
five rapidly wounds and died from injuries.
those Ten minutes before the shooting, Josh Waterman had driven 51 STEWART, Charles K. m.p.h. m.p.h. a 25 stop zone and failed to Plaintiff-Appellee, when signaled by to do so in squad cars, which well exasperated have However, by them. the time of the shoot- CAROLINA; State of NORTH North ing, Josh speeding Waterman was neither Department Correction; Carolina of driving nor erratically rather, he was — Beck, Secretary Theodis of North Car passing through plaza a toll at 11 to 15 Department Correction; olina of La m.p.h.; and eyewitnesses several have Hamer, Counsel, vee General North sworn that none of the law enforcement Department Correction; Carolina of plaza officers at the toll in danger of Stieneke, Deputy Daniel L. Chief Sec
being hit Josh Waterman’s car. The retary, Department North Carolina video of the shooting could well be inter- Correction; Boyd Bennett, James Di preted or, least, as supporting very at the Prisons, rector of North Carolina De definitively negating these accounts. partment Correction; George T. Solomon; Pickett, Graham Defen could, A jury nonetheless, conclude that dants-Appellants, officer, confronted with Keel, the situation facing Batton, Officers and Heisey, would have acted as did 1; Doe, Doe, John # Jane or would not have that shooting realized 2,# Defendants.
Josh Waterman violated the Constitution.
Katz,
194, 201-02,
See Saucier v.
533 U.S.
Stewart,
K.
Plaintiff-Appellee,
Charles
(2001).
121 S.Ct.