Lowery v. Stovall , 92 F.3d 219 ( 1996 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JERRY LOWERY,
    Plaintiff-Appellant,
    v.
    LARRY STOVALL; T. E. REDD,
    Defendants-Appellees,
    No. 95-1729
    and
    CITY OF SOUTH BOSTON, VIRGINIA;
    J. V. SIMMONS, Individually and in
    his official capacity as a police
    officer,
    Defendants.
    Appeal from the United States District Court
    for the Western District of Virginia, at Danville.
    Jackson L. Kiser, Chief District Judge.
    (CA-92-4-D)
    Argued: February 2, 1996
    Decided: August 6, 1996
    Before HALL and HAMILTON, Circuit Judges, and
    PHILLIPS, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by published opinion. Judge Hamilton wrote the opinion, in
    which Judge Hall and Senior Judge Phillips joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: G. Rodney Sager, ROD SAGER & ASSOCIATES, Rich-
    mond, Virginia, for Appellant. John Henry O'Brion, Jr., COWAN &
    OWEN, P.C., Richmond, Virginia, for Appellees. ON BRIEF:
    Carey M. Friedman, Gavin T. Pinchback, Third-Year Law Student,
    T.C. Williams School of Law, ROD SAGER & ASSOCIATES, Rich-
    mond, Virginia, for Appellant.
    _________________________________________________________________
    OPINION
    HAMILTON, Circuit Judge:
    Jerry Lowery appeals the district court's grant of summary judg-
    ment in favor of Thomas Redd and Larry Stovall on his claims that
    Redd and Stovall subjected him to an unreasonable seizure in viola-
    tion of his Fourth Amendment rights. See 42 U.S.C. §§ 1983 & 1985.
    For the reasons discussed below, we affirm.
    I
    This action arises out of an early morning traffic stop on February
    1, 1991. Redd, a police officer for the City of South Boston, Virginia
    (South Boston), was on routine patrol when he noticed a car driving
    with its headlights off through the lot of a construction company.
    Redd followed the car and called in the car's license plate number to
    the dispatcher's office. Redd subsequently learned that the registered
    owner's license had been suspended. At approximately 1:45 or 1:50
    in the morning, Redd spotted the car again and proceeded to stop the
    car, believing that the driver was driving with a suspended license.
    Stovall, another officer with South Boston, arrived shortly after Redd
    stopped the car to provide back-up. During the stop, the driver, who
    was Lowery, accompanied Redd to the patrol car and sat in the front
    passenger seat while Redd called the dispatcher's office to find out
    why his license had been suspended. At this point, the parties' ver-
    sions of the events in question diverge.
    According to Lowery, he got out of the patrol car to show Redd
    what he had in his pants pockets. Then Stovall, who had been in the
    back seat of Redd's patrol car, got out of the patrol car and, for no
    reason, shot Lowery in the head. Lowery then claims that, as he
    attempted to get back in the patrol car to lay his head on the seat, he
    scratched Redd on the face with his fingernails.
    2
    The officers, however, present a dramatically different version of
    the incident. According to Redd and Stovall, while Redd was in the
    process of writing Lowery a ticket for driving with a suspended
    license, Lowery began going through his left pants pocket. At this
    point, Redd asked Lowery what he had in his pocket and then reached
    over to pat down Lowery's pocket. Lowery then reached into his
    pants pocket, pulled out an object, pushed Redd against the driver's
    side door, and used the object to cut Redd on the face. Because Redd
    felt a burning sensation, he "yelled out knife." (J.A. 1420). Stovall,
    who had been sitting in the back of the patrol car and saw that Redd
    was bleeding, attempted to stop Lowery by grabbing him and punch-
    ing him in the back of his neck. Stovall's attempts to restrain Lowery
    failed, but Stovall's actions caught Lowery's attention because Low-
    ery then started to climb over the patrol car's front seat in an attempt
    to attack Stovall. Lowery swung at Stovall in an attempt to cut him
    with the object, but Stovall fended off this attack by catching Low-
    ery's arm. Stovall then drew his firearm and shot Lowery. Although
    Stovall tried to shoot Lowery in the shoulder, he shot Lowery in the
    head when Lowery ducked as Stovall fired. The object that Lowery
    used to cut Redd, rather than a knife, turned out to be a black mag-
    netic key holder that was approximately three inches long and one
    inch wide.
    After the shooting, Virginia charged Lowery with maliciously
    causing bodily injury to Redd with the intent to maim, disfigure, dis-
    able or kill him in violation of Va. Code § 18.2-51.1.1 Prosecution on
    this charge was delayed because Lowery was initially deemed incom-
    petent to stand trial due to his injuries.
    _________________________________________________________________
    1 Section 18.2-51.1 in pertinent part states
    Malicious bodily injury to law-enforcement officers; penalty;
    lesser included offense. -- If any person maliciously causes
    bodily injury to another by any means including the means set
    out in § 18.2-52, with intent to maim, disfigure, disable or kill,
    and knowing or having reason to know that such other person is
    a law-enforcement officer . . . engaged in the performance of his
    public duties as a law-enforcement officer, such person shall be
    guilty of a Class 3 felony. . . .
    3
    Lowery subsequently commenced this § 1983 action against Redd
    and Stovall2 alleging that they had violated his constitutional rights.
    Specifically, Lowery's complaint alleged that Stovall's use of force
    violated his Fourth Amendment right to be free from unreasonable
    seizures, which is applied to the states through the Fourteenth
    Amendment. Lowery's complaint also alleged that Redd owed him a
    duty to protect him from Stovall's use of excessive force and that
    Redd breached this duty. The defendants subsequently moved for
    summary judgment. The district court, finding no evidence that either
    South Boston or its police chief was deliberately indifferent to Low-
    ery's constitutional rights, granted summary judgment in favor of
    them. The district court, however, denied Redd's and Stovall's motion
    for summary judgment because (1) Redd had not yet been deposed
    and (2) Rainey v. Conerly, 
    973 F.2d 321
    (4th Cir. 1992), precluded
    the application of qualified immunity because the parties presented
    irreconcilable accounts of why Lowery was shot.
    Lowery, Redd, and Stovall appealed the district court's initial order
    granting summary judgment, and based upon the reasoning of the dis-
    trict court, we affirmed in toto the district court's decision. Lowery v.
    Redd, 
    14 F.3d 595
    , 
    1993 WL 527998
    (4th Cir. Dec. 21, 1993) (unpub-
    lished), cert. denied, 
    114 S. Ct. 2676
    (1994).
    While this case was pending on remand, Lowery, who had been
    found competent to stand trial, pleaded guilty to violating Va. Code
    § 18.2-51.1. In addition to pleading guilty, Lowery signed a statement
    admitting that (1) he maliciously attacked Officer Redd, (2) he
    intended to kill him, if necessary, to escape, and (3) he knew of the
    consequences that his guilty plea would have on his civil suit:
    3. I was selling cocaine in South [B]oston before my arrest
    and the cocaine I had with me when the officers
    arrested me was possessed by me for later sale.
    4. On February 1, 1991 when I was arrested, I cut Officer
    Thomas E. Redd on the face with a metal key holder
    _________________________________________________________________
    2 Lowery also named South Boston and its police chief as defendants
    in his lawsuit, alleging that the violation of his constitutional rights was
    caused by an official policy or custom of these two defendants.
    4
    because I wanted to escape custody. I knew he would
    find my cocaine. I intended to maim and disable him
    and at the time Officer Stovall shot me I was intending
    to kill Redd if I had to [in order] to get away.
    ...
    6. I have discussed this thoroughly with my attorney Mr.
    Crowder, including the implications of this plea for my
    civil case. Having considered all of this I believe it is
    in my best interest to proceed.
    7. I have delayed pleading guilty because of the pendency
    of the civil suit I filed for my injuries in this episode.
    At all times I was guilty of these charges, and I knew
    I was.
    (J.A. 686).
    Finally, in taking Lowery's guilty plea, the state trial judge meticu-
    lously reviewed Lowery's statement to make certain that each of the
    statements was indeed true and that Lowery understood the state-
    ments. After taking Lowery's guilty plea and hearing a summary of
    the state's evidence from a prosecution witness, the trial judge
    accepted Lowery's guilty plea, finding Lowery was"in fact guilty of
    each charge." (J.A. 769).
    Based on Lowery's guilty plea and statement, Stovall refiled his
    motion for summary judgment and Redd supplemented his previous
    motion for summary judgment, arguing that Lowery's guilty plea ren-
    dered the parties' factual dispute moot. Although summary judgment
    based on qualified immunity is inappropriate "where what actually
    happened . . . need[s] to be resolved by the trier of fact in order to
    reach a decision on the applicability of qualified immunity," 
    Rainey, 973 F.2d at 324
    , the district court found that it did not need to resolve
    the conflicting versions of the shooting because Lowery was pre-
    cluded by the doctrine of judicial estoppel from disputing that he
    maliciously attacked Redd before Stovall shot him.
    5
    Because the district court precluded Lowery from disputing that he
    maliciously attacked Redd before being shot by Stovall, it held that
    Stovall was entitled to qualified immunity because"Stovall's behav-
    ior would appear objectively reasonable from the perspective of the
    officer at the time of the shooting." (J.A. 1006). The district court also
    held, regardless of the propriety of its ruling concerning judicial
    estoppel, that Redd was entitled to qualified immunity on Lowery's
    claim that Redd breached his alleged duty to protect him because
    there was no clearly established standard to govern Redd's actions.
    Lowery then noted this appeal.
    II
    Lowery claims that Stovall's shooting him for allegedly no reason
    constituted the use of excessive force, and thus, violated his Fourth
    Amendment right to be free from unreasonable seizures. In judging
    the reasonableness of a seizure, we consider three factors: "[1] the
    severity of the crime at issue, [2] whether the suspect poses an imme-
    diate threat to the safety of the officers or others, and [3] whether he
    is actively resisting arrest or attempting to evade by flight." Graham
    v. Connor, 
    490 U.S. 386
    , 396 (1989). In addition, "[t]he `reasonable-
    ness' of a particular use of force must be judged from the perspective
    of a reasonable officer on the scene, rather than with the 20/20 vision
    of hindsight." 
    Id. Stovall claims
    that he is entitled to qualified immunity on Lowery's
    excessive force claim. A defendant, such as Stovall, is entitled to
    qualified immunity if his conduct did not contravene"clearly estab-
    lished statutory or constitutional rights of which a reasonable person
    would have known." Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982).
    The clearly established standard for the use of excessive force at the
    time of this incident was whether a reasonable officer in Stovall's
    place could have had probable cause to believe that Lowery posed a
    threat of serious harm to himself or Redd. See Tennessee v. Garner,
    
    471 U.S. 1
    , 11 (1985); McLenagan v. Karnes, 
    27 F.3d 1002
    , 1006-07
    (4th Cir.) (citing Garner), cert. denied , 
    115 S. Ct. 581
    (1994). We
    have stated that an officer in Stovall's position is entitled to qualified
    immunity if "a reasonable officer possessing the same particularized
    information as [Stovall] could have, in light of Garner, believed that
    his conduct was lawful. . . ." 
    McLenagan, 27 F.3d at 1007
    .
    6
    We have no doubt that Lowery's present allegations, if true, consti-
    tute a violation of his clearly established rights. But Stovall contends
    that Lowery's present allegations are irrelevant. Specifically, Stovall
    argues that Lowery is precluded from making these allegations by the
    doctrine of judicial estoppel because his present allegations are incon-
    sistent with his prior guilty plea. Thus, Stovall reasons that he is enti-
    tled to qualified immunity because Lowery's admission that he
    maliciously attacked Redd shows that a reasonable officer in Stovall's
    place could have believed that shooting Lowery was lawful.
    Lowery, however, contends that his present allegations cannot be
    precluded by the doctrine of judicial estoppel. We disagree.
    A
    We first discuss the principles underlying the doctrine of judicial
    estoppel. When a party attempts to assert a position that is inconsis-
    tent with a prior position that the party has successfully asserted in
    another court, courts have a number of steps that they may take to
    prevent such an attempted abuse of the judicial process. For example,
    courts may apply collateral estoppel (also known as issue preclusion)
    or equitable estoppel to prevent the attempted abuse. In addition to
    those doctrines, courts may apply the closely related doctrine of judi-
    cial estoppel.3 "Judicial estoppel precludes a party from adopting a
    _________________________________________________________________
    3 Judicial estoppel is "[c]losely related to collateral estoppel, but [it is]
    dissimilar in critical respects." Allen v. Zurich Ins. Co., 
    667 F.2d 1162
    ,
    1166 (4th Cir. 1982). For example, judicial estoppel does not require that
    the issue be actually litigated in the prior proceeding or that the parties
    meet the requirement of mutuality, even if the mutuality requirement is
    recognized by state law, as it is here. See Selected Risks Ins. Co. v. Dean,
    
    355 S.E.2d 579
    , 581 (Va. 1987). One reason for these differences is that
    judicial estoppel is a matter of federal law, not state law, see 
    Allen, 667 F.2d at 1167
    n.2, especially when the court's jurisdiction is based on the
    presence of a federal question rather than the diversity of the parties.
    Judicial estoppel is also closely related to equitable estoppel. See Rand
    G. Boyers, Comment, Precluding Inconsistent Statements: The Doctrine
    of Judicial Estoppel, 80 Nw. U.L. Rev. 1244, 1248 (1986). Unlike equi-
    table estoppel, a party asserting judicial estoppel does not have to prove
    detrimental reliance because judicial estoppel is designed to protect the
    7
    position that is inconsistent with a stance taken in prior litigation. The
    purpose of the doctrine is to prevent a party from playing fast and
    loose with the courts, and to protect the essential integrity of the judi-
    cial process." John S. Clark Co. v. Faggert & Frieden, P.C., 
    65 F.3d 26
    , 28-29 (4th Cir. 1995) (citations and internal quotation marks omit-
    ted). See also Mark J. Plumer, Note, Judicial Estoppel: The Refur-
    bishing of a Judicial Shield, 55 Geo. Wash. L. Rev. 409, 435 (1987)
    ("Judicial estoppel is properly defined as a bar against the alteration
    of a factual assertion that is inconsistent with a position sworn to and
    benefitted from in an earlier proceeding.").
    Courts have had difficulty in formulating a specific test for deter-
    mining when judicial estoppel should be applied. See Patriot Cine-
    mas, Inc. v. General Cinema Corp., 
    834 F.2d 208
    , 212 (1st Cir. 1987)
    ("The specific requirements, however, are `rather vague' and vary
    from state to state and from circuit to circuit. In fact, some circuits
    and jurisdictions have never recognized the doctrine.") (citations
    omitted); 
    Allen, 667 F.2d at 1166
    ("The circumstances under which
    judicial estoppel may appropriately be invoked are probably not
    reducible to any general formulation of principle. .. ."). But, nonethe-
    less, there are certain elements that have to be met before courts will
    apply judicial estoppel.
    First, the party sought to be estopped must be seeking to adopt a
    position that is inconsistent with a stance taken in prior litigation. 
    Id. And the
    position sought to be estopped must be one of fact rather than
    law or legal theory. 
    Tenneco, 691 F.2d at 664-65
    ; 
    Plumer, supra, at 411
    .
    Second, the prior inconsistent position must have been accepted by
    the court. 
    Teledyne, 911 F.2d at 1218
    ; see 
    Allen, 667 F.2d at 1167
    _________________________________________________________________
    integrity of the courts rather than any interests of the litigants. See
    Teledyne Indus., Inc. v. NLRB, 
    911 F.2d 1214
    , 1220 (6th Cir. 1990);
    Tenneco Chems. v. William T. Burnett & Co., Inc., 
    691 F.2d 658
    , 665
    (4th Cir. 1982).
    Therefore, judicial estoppel may apply in a particular case "where nei-
    ther collateral estoppel nor equitable estoppel . . . would apply." 
    Allen, 667 F.2d at 1166
    -67.
    8
    (finding that "the record conclusively shows" that the party had suc-
    cessfully asserted a prior inconsistent position). The insistence upon
    a court having accepted the party's prior inconsistent position ensures
    that judicial estoppel is applied in the narrowest of circumstances.
    Indeed, "the prior success rule narrows the scope of judicial estoppel
    to the point at which the necessity of protecting judicial integrity out-
    weighs the ramifications of that protection upon the litigant and the
    judicial system." Boyers, supra note 3, at 1256. Because of the harsh
    results attendant with precluding a party from asserting a position that
    would normally be available to the party, judicial estoppel must be
    applied with caution. See Faggert & 
    Frieden, 65 F.3d at 29
    .
    Finally, the party sought to be estopped must have"intentionally
    misled the court to gain unfair advantage." 
    Tenneco, 691 F.2d at 665
    .
    Indeed, we have stated that this factor is the "determinative factor" in
    the application of judicial estoppel to a particular case. Id.; Faggert
    & 
    Frieden, 65 F.3d at 29
    . Thus, courts will not apply judicial estoppel
    "when a party's prior position was based on inadvertence or mistake."
    Faggert & 
    Frieden, 65 F.3d at 29
    . With these principles in mind, we
    turn to consider whether the district court erred in applying the doc-
    trine of judicial estoppel to preclude Lowery from contradicting the
    statements he made when he pleaded guilty to violating Va. Code
    § 18.2-51.1.
    B
    Our review of the record shows that the district court properly
    applied the doctrine of judicial estoppel to preclude Lowery from dis-
    puting that he maliciously attacked Redd before Stovall shot him.
    First, Lowery's present position regarding the circumstances of the
    shooting is contradictory to the position he took when he pled guilty.
    During his guilty plea hearing, Lowery admitted to maliciously
    attacking Redd. Specifically, the trial judge, in taking Lowery's guilty
    plea, asked if Lowery had cut Redd on the face with the metal key
    holder to escape, and Lowery said that he had. Lowery's present posi-
    tion, however, is that he did not attack Redd with the magnetic key
    holder prior to the shooting and that Stovall shot him without reason.
    Lowery argues that these positions are reconcilable. Specifically,
    Lowery contends that his statement does not show when he cut Redd.
    9
    Thus, Lowery reasons that his statement is consistent with his present
    position because the statement allegedly does not foreclose the possi-
    bility that he cut Redd on the face by scratching Redd as he was try-
    ing to crawl into the patrol car after being shot by Stovall.
    Lowery's argument, however, is undercut by the plain language in
    his statement accompanying his guilty plea:
    On February 1, 1991 when I was arrested, I cut Officer
    Thomas E. Redd on the face with a metal key holder
    because I wanted to escape custody. I knew he would find
    my cocaine. I intended to maim and disable him and at the
    time Officer Stovall shot me I was intending to kill Redd if
    I had to [in order] to get away.
    (J.A. 686) (emphasis added). The "wanted to escape custody" lan-
    guage cannot be reconciled with Lowery's claim that he scratched
    Redd as he was trying to get back into the patrol car because the posi-
    tions are diametrically opposed to each other. Because Lowery's pres-
    ent position necessarily conflicts with his prior position, the first
    requirement for applying judicial estoppel has been met.
    Next, we consider whether the trial judge accepted Lowery's prior
    inconsistent position. "[J]udicial acceptance means only that the first
    court has adopted the position urged by the party . . . as part of a final
    disposition." Edwards v. Aetna Life Ins. Co. , 
    690 F.2d 595
    , 599 n.5
    (6th Cir. 1982). Although judicial estoppel does not apply to the set-
    tlement of an ordinary civil suit because "there is no `judicial accep-
    tance' of anyone's position,"4 the taking of a guilty plea in a criminal
    proceeding is not similar to the settlement of a civil suit.
    In taking the guilty plea, the trial judge had a duty to determine that
    Lowery entered his guilty plea "voluntarily with an understanding of
    the nature of the charge and the consequences of the plea." Va. S. Ct.
    Rule 3A:8(b). The record of the plea proceeding shows beyond dis-
    _________________________________________________________________
    4 Reynolds v. Commissioner, 
    861 F.2d 469
    , 473 (6th Cir. 1988) (finding
    a bankruptcy court's approval of a settlement between a debtor and one
    of his creditors constitutes a "judicial acceptance" because the court has
    a duty to make sure the settlement is fair and equitable).
    10
    pute that the trial judge carried out this mandate. Moreover, the record
    here shows that the trial judge had a factual basis for finding Lowery
    guilty. The trial judge asked Lowery whether each of the assertions
    in the statement accompanying his guilty plea was true, rather than
    whether he merely understood the statements. Further, the court heard
    a summary of the state's evidence from a prosecution witness. Signif-
    icantly, in sentencing Lowery, the trial judge stated that Lowery was
    "in fact guilty of each charge." (J.A. 769). Thus, we find that the trial
    judge accepted Lowery's position when he accepted his guilty plea.
    Finally, we turn to the issue of whether Lowery's attempt to assert
    his present position is an intentional attempt to mislead the court to
    gain unfair advantage in this action. By pleading guilty, Lowery
    received a drastically reduced sentence. Because of his criminal
    record, Lowery was facing forty to sixty years imprisonment before
    entering into a plea agreement with the State. In exchange for his
    pleading guilty and signing the accompanying statement, the State
    agreed to recommend that Lowery be sentenced to only ten years, sus-
    pended after the service of two years in prison. After Lowery carried
    out his part of the bargain, the State kept its word and recommended
    that he receive a ten-year sentence with eight years suspended; a sen-
    tence that the trial judge imposed upon him. But, after receiving the
    benefit of the plea bargain, Lowery now wants to have it the other
    way, arguing that we should find that he did not maliciously attack
    Redd.
    For the reasons aptly expressed by Professor Hazard, we find this
    argument "too much to take":
    Particularly galling is the situation where a criminal con-
    victed on his own guilty plea seeks as a plaintiff in a subse-
    quent civil action to claim redress based on a repudiation of
    the confession. The effrontery or, as some might say it,
    chutzpah, is too much to take. There certainly should be an
    estoppel in such a case.
    Geoffrey Hazard, Revisiting the Second Restatement of Judgments;
    Issue Preclusion and Related Problems, 66 CORNELL L. REV. 564, 578
    (1981). As it is clear that Lowery is "blowing hot and cold as the
    11
    occasion demands"5 or wanting to "have [his] cake and eat it too,"6
    we conclude that Lowery's arguments are nothing more than an inten-
    tional attempt to mislead the district court and this court to gain unfair
    advantage in this action. Thus, the district court did not err in finding
    that the doctrine of judicial estoppel precluded Lowery from arguing
    that he did not maliciously attack Redd. See Lichon v. American Uni-
    versal Ins. Co., 
    459 N.W.2d 288
    , 293 (Mich. 1990) (finding that if a
    plea of nolo contendere constituted an admission of guilt then the
    defendant would be judicially estopped from asserting he was inno-
    cent of the charge to which he plead nolo contendere); People v.
    Goestenkors, No. 5-94-0870, 
    1996 WL 88283
    , at **2-3 (Ill. App. Ct.
    Feb. 29, 1996) (finding that after pleading guilty a party is estopped
    from asserting his preplea position because "[t]he law will not tolerate
    a party in a legal proceeding swearing under oath to the untruth of
    some matter and then swearing under oath to the truth of that same
    matter").
    C
    Next, we consider whether the district court properly concluded, in
    light of Lowery's guilty plea, that Stovall was entitled to qualified
    immunity.
    Lowery has strenuously opposed the district court's use of his
    guilty plea to preclude him from disputing whether he maliciously
    attacked Redd before Stovall shot him. But, significantly, he has not
    taken issue with the district court's conclusion that Stovall, upon see-
    ing Lowery attack Redd and hearing Redd yell that Lowery had a
    knife, would have had probable cause to believe that Lowery posed
    a threat of serious harm to Redd. See Tennessee v. Garner, 
    471 U.S. 1
    , 11 (1985) (finding a police officer has the right to use deadly force
    only if the officer had probable cause to believe that the suspect poses
    a threat of serious harm to the officer or others). We believe Lowery's
    decision not to take issue with the district court's conclusion was wise
    because the district court properly found Stovall acted as a reasonable
    _________________________________________________________________
    5 
    Allen, 667 F.2d at 1167
    n.3.
    6 Duplan Corp. v. Deering Milliken, Inc., 
    397 F. Supp. 1146
    , 1177
    (D.S.C. 1974).
    12
    officer would have in his situation, and therefore, Stovall is entitled
    to qualified immunity. See 
    McLenagan, 27 F.3d at 1007
    -08 ("We will
    not second-guess the split-second judgment of a trained police officer
    merely because that judgment turns out to be mistaken, particularly
    where inaction could have resulted in death or serious injury to the
    officer and others."); Slattery v. Rizzo, 
    939 F.2d 213
    , 216-17 (4th Cir.
    1991) (finding police officer who shot the plaintiff while conducting
    a sting operation was entitled to qualified immunity because the
    police officer believed the plaintiff was coming at him with a weapon
    that turned out to be a beer bottle).
    Therefore, the district court's grant of summary judgment to Sto-
    vall is affirmed.
    D
    Finally, we conclude that the district court's grant of summary
    judgment in favor of Redd was proper. Lowery alleged that Redd
    owed him a duty to protect him from Stovall's use of excessive force
    and that Redd breached this duty. Having concluded that Stovall's use
    of force was reasonable under the circumstances, Lowery's claim
    against Redd necessarily fails.
    Therefore, the district court's grant of summary judgment to Redd
    is affirmed.7
    III
    Accordingly, for all the foregoing reasons, the grant of summary
    judgment in favor of Stovall and Redd is affirmed.
    AFFIRMED
    _________________________________________________________________
    7 In any event, the district court properly found that Redd would be
    entitled to qualified immunity on this claim because there was no clearly
    established standard to govern Redd's actions. See 
    McLenagan, 27 F.3d at 1008
    n.9.
    13