Waller v. City of Danville VA , 212 F. App'x 162 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1107
OLIVIA WALLER, Administrator of the Estate of
Rennie Edward Hunt, Jr., deceased,
Plaintiff - Appellant,
versus
CITY OF DANVILLE, VIRGINIA, a Municipal
Corporation; T. NEAL MORRIS, Chief of Police
of the City of Danville, Virginia, in both his
individual and official capacities; DAVID
STOWE; HUGH WYATT; GERALD FORD; TODD BROWN;
DENNIS HALEY; JONATHAN GRAHAM; B. C. ELLIOTT;
WILLIAM CHANEY; KENNETH FITZGERALD, in both
their individual and official capacities as
City of Danville Police Officers; JOHN DOES,
Police Officers of the City of Danville Police
Department, the identity and number of whom is
presently unknown; RICHARD ROES, Supervisory
police officers of the City of Danville, the
identity and number of whom is presently
unknown, in both their individual and official
capacities,
Defendants - Appellees,
and
CHRISTOPHER TILLMAN; JASON PRESLEY, in their
individual and official capacities as City of
Danville Police Officers,
Defendants.
---------------------------------------------
NATIONAL MENTAL HEALTH ASSOCIATION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:03-cv-00039-jlk)
Argued: September 19, 2006 Decided: December 14, 2006
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Traxler wrote the majority opinion, in which Judge
Motz joined. Judge Wilkinson wrote an opinion concurring in part
and dissenting in part.
ARGUED: Lani Rae Miller, O’MELVENY & MYERS, L.L.P., Washington,
D.C., for Appellant. Martha White Medley, DANIEL, MEDLEY & KIRBY,
P.C., Danville, Virginia, for Appellees. ON BRIEF: Janell M. Byrd,
THE COCHRAN FIRM, Washington, D.C.; Toby Heytens, Jason A. Abel,
O’MELVENY & MYERS, L.L.P., Washington, D.C., for Appellant. James
A. L. Daniel, M. Brent Saunders, DANIEL, MEDLEY & KIRBY, P.C.,
Danville, Virginia, for Appellees. Joseph R. Guerra, Matthew B.
Hsu, SIDLEY AUSTIN, L.L.P., Washington, D.C., for Amicus Supporting
Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
TRAXLER, Circuit Judge:
Plaintiff-Appellant Olivia Waller, individually and as
administrator of the estate of her brother Rennie Edward Hunt, Jr.,
brought this action under 42 U.S.C.A. § 1983 (West 2003), against
the City of Danville and several of its police officers, claiming
violations of the Fourth and Fourteenth Amendments to the United
States Constitution in connection with the May 11, 2002, shooting
death of Hunt. Plaintiff also sought to recover damages under
Virginia’s wrongful death and survival statutes, and for assault
and battery, intentional and negligent infliction of emotional
distress, and gross negligence under Virginia state law. Plaintiff
claims that Hunt was unlawfully seized, subjected to excessive and
unreasonable force, and discriminated against on the basis of his
race and mental disability. The district court granted summary
judgment to the defendants on all claims, and plaintiff appeals.
For the following reasons, we affirm in part, reverse in part, and
remand for further proceedings.
I.
The pertinent facts, viewed in the light most favorable to the
plaintiff, see Saucier v. Katz, 533 U.S. 194, 201 (2001), are as
follows.
3
On the evening of May 10, 2002, emergency services for the
City of Danville received a 911 call from Teressa Jennings.
Jennings reported that she was concerned about her friend and
neighbor, Virginia Evans, because she had not seen or heard from
Evans since Evans’s live-in boyfriend, Rennie Hunt, had been
released from a recent hospitalization for psychiatric problems.
Hunt was known to be approximately 5'5" tall, 137 pounds, and 67
years old. He was retired and walked with a cane.
City of Danville police officers Christopher Tillman, Jason
Presley, and Eric Ellis were dispatched to Hunt’s apartment to
check on Evans. When the officers arrived at the apartment and met
Jennings, Jennings told them that she had not seen or heard from
Evans for a couple of days and that, when she inquired as to
Evans’s whereabouts, Hunt had come to their apartment door,
“speaking about dead bodies in the street and acid in the backyard”
and refused to let Jennings see Evans. J.A. 49. The officers
knocked at the front and back doors, repeatedly identifying
themselves as the Danville police. Hunt responded either that he
was “going to kick [their] ass” or “kiss his ass.” J.A. 54. The
officers told Hunt that they were there to check on Evans, but Hunt
told the officers “not to be concerned with” her. J.A. 55. When
the officers asked Evans to open the door, she responded, “I can’t
come to the door. He won’t let me.” J.A. 55. When asked by the
4
officer if she was all right, Evans replied through the door that
she was okay.
The officers contacted their supervisor, Captain David Stowe,
for guidance. Stowe came to the scene, identified himself to Hunt
as a police officer, and told Hunt that they were concerned about
Evans. Hunt again responded “[y]ou don’t need to be concerned with
Virginia.” J.A. 555. When Stowe persisted, Hunt repeatedly told
him that “[i]f you come in here, I’ve got something for you.” J.A.
556. Hunt also told Stowe that he was “not going to be sprayed in
the face,” which Stowe believed to be a reference to mace. J.A.
557. Stowe testified that, based on Hunt’s comments, he believed
Hunt had a weapon and that a confrontation would occur if they
attempted to enter the apartment.
Unable to obtain cooperation from Hunt and having heard
nothing further from Evans, Stowe returned to the police department
to confer with Captain Kenneth Fitzgerald about the situation. The
officers checked Hunt’s criminal history and learned that Hunt had
been arrested in the past for drunk and disorderly conduct,
resisting arrest, and, most recently, domestic assault upon Evans.
After consulting Assistant Police Chief B.C. Elliott about the
situation, the officers decided to contact Lieutenant Hugh Wyatt,
a hostage negotiator, for assistance. In the meantime, Stowe was
in contact by telephone with Officer Presley, who was still at the
5
scene. Officer Presley informed Stowe that Evans’s sister had
arrived at the apartment and confirmed that she also had not heard
from Evans in several days. Evans’s sister also advised the
officers that Hunt “had been in and out of mental institutions” and
“at one time she had been to the house and he had come to the door
with a knife in his hand.” J.A. 85.
Shortly thereafter, Lieutenant Wyatt, accompanied by Captain
Stowe and Officer Tillman, approached the back door of the
apartment to begin negotiations. When Wyatt attempted to coax Hunt
into letting him speak with Evans, Hunt responded that “[y]ou ain’t
got to worry about her. Go on and get the hell away.” J.A. 119-
20. When Wyatt persisted, Hunt yelled at Wyatt, “I’m going to blow
your goddamned head off.” J.A. 120. Deeming it unsafe to continue
negotiations from the open area at the back door, the officers
immediately retreated and returned to the front of the building.
Until this point, the officers had expressed some indecision
as to whether they had probable cause for a warrantless entry into
the apartment to secure Evans’s safe exit. Hunt’s direct threat to
Lieutenant Wyatt and obvious reference to a firearm eliminated this
indecision and the officers began the process for obtaining an
arrest warrant for Hunt. Based upon Hunt’s threat to Lieutenant
Wyatt, and the narrowness of the hallway leading to the front door
of Hunt’s apartment, the officers decided that the Emergency
6
Response Team (“ERT”) should handle the arrest of Hunt and removal
of Evans from the apartment.
The ERT was summoned and an operational plan was prepared.
The members of the team consisted of Officer Dennis Haley (the team
leader), and Officers Gerald Ford, Todd Brown, William Chaney,
Jonathan Graham, and Mark Haley. According to the plan, Officer
Chaney was to knock and announce to Hunt the presence of the police
and that they had a warrant for his arrest. If Hunt failed to
cooperate, Officer Graham was to deploy a flash-bang device1 at the
rear of the apartment to distract Hunt from the front entrance and
Officer Chaney was to breach the front door with a battering ram to
force entry. Due to the narrowness of the hallway, the officers
could only enter the apartment single-file.2 Officer Ford was to
enter as the lead officer, carrying a bullet-proof shield for
protection. Officer Brown was to follow Officer Ford, providing
cover and assistance to him. Their job was to seize Hunt. Officer
Dennis Haley was to enter third, as backup to Ford and Brown, and
1
A flash-bang device is a non-destructive diversionary device
that produces a loud noise, bright flash, and smoke when it is
deployed.
2
The operational plan took into account the preexisting
knowledge of the Danville police officers gained from prior calls
regarding Hunt and the layout of the apartment. They knew, for
instance, that entry had to be made through the front door due to
a barricade across the back door and that the narrowness of the
hallway would increase the risk to the officers.
7
to deploy a second flash-bang device upon entry. Officer Mark
Haley was to enter fourth, locate Evans, and remove her from the
apartment. Officer Chaney, who would have dropped back after
breaching the door if necessary, would enter last.
Lieutenant Wyatt videotaped the briefing of the ERT and
portions of their subsequent entry into the apartment. As
evidenced by this videotape and the uncontroverted testimony of the
officers, Officer Chaney repeatedly announced to Hunt that they
were police officers and informed Hunt that they had a warrant for
his arrest. When Hunt did not respond after repeated requests,
Officer Graham deployed the flash-bang device at the rear door to
distract Hunt from the front entrance while Officer Chaney broke
down the front door. However, the ERT encountered a second,
unexpected, locked door to the apartment, at the end of the
hallway. Because Officer Chaney had fallen back and was unable to
quickly return to this second door, Officer Ford broke through the
door with his shoulder. Officer Dennis Haley simultaneously
deployed a second flash-bang device, adding an additional layer of
protection for Officer Ford and the other officers as they entered
the doorway.
According to the officers, when they breached the second
doorway into the apartment, Hunt rushed towards them yelling and
swinging what appeared to be a metal pole with a blade at the end
8
in one hand and a knife in the other hand. The officers described
the first weapon as “a pole with a hooked end that looked like a
culling-type object, like what some people would refer to as [a]
sickle-type pole,” J.A. 204, “what years ago people used to cut
grass with or clear an area with,” J.A. 206. Officer Ford backed
up, yelling for Hunt to put the object down and yelling to the
others that Hunt had a knife. As he was backing up and yelling,
Officer Ford also fired two or three shots towards Hunt. Hunt
dropped the pole, but immediately picked it up and charged towards
Officer Ford again, this time striking him in the shield and
helmet. When Hunt made his second charge, Officers Ford, Brown and
Dennis Haley all began firing shots. The shots knocked Hunt
backwards, through the doorway into an adjoining bedroom. Hunt was
transported to the hospital but died soon thereafter. It was later
determined that the object Hunt was wildly swinging was a modified
walking cane with a retrofitted handle. A screwdriver, which could
have been the perceived weapon in his other hand, was found nearby.
II.
Plaintiff brought this action against the City of Danville,
Police Chief Morris, Captain Stowe, Captain Fitzgerald, and
Lieutenant Wyatt, five of the six ERT members (Dennis Haley, Gerald
Ford, Todd Brown, Jonathan Graham, and William Chaney), and two of
9
the three officers who initially responded to the scene (Officers
Tillman and Presley), alleging fifteen separate claims for
violations of Hunt’s rights under the Fourth and Fourteenth
Amendment, the Americans with Disabilities Act, see 42 U.S.C.A.
§§ 12131-12134 (West 2005), and the Rehabilitation Act, see 29
U.S.C.A. § 794 (West 1999 & Supp. 2006), and various claims under
state law.
Counts I through III of the complaint set forth claims against
the City of Danville and the individual supervisory officers in
their official capacities. See Monell v. Dep’t of Social Services,
436 U.S. 658, 694 (1978) (holding that a municipality may be held
liable for damages for violations of an individual’s constitutional
rights by its agents or employees committed pursuant to municipal
policy or custom). Count I alleges that the officers, acting
pursuant to the City’s policies and customs, unlawfully arrested
Hunt, used unreasonable and excessive force, and subjected Hunt to
discriminatory treatment on the basis of his mental illness and
race, in violation of Hunt’s Fourth And Fourteenth Amendment
rights. Count II alleges that the City’s decision to use the ERT
to break into Hunt’s residence reflected deliberate indifference
and reckless disregard to a substantial and obvious risk of serious
injury to Hunt. Count III alleges that the City developed and
maintained a policy of deficient training of its police force in
10
the use of force, including the use of force by the ERT and the use
of force with mentally ill persons. Count VIII of the complaint
asserts a claim for supervisory liability against Chief Morris and
other unnamed supervisory personnel arising from the actions of the
officers in obtaining and serving the arrest warrant.
Counts V, VII, IX, and X of the complaint set forth various
causes of actions against the individual defendants in their
individual capacities, alleging that they subjected Hunt to
unreasonable and excessive force (Count V), conspired to use
unreasonable and excessive force (Count VII), failed to intercede
to prevent the use of excessive and unreasonable force (Count IX),
and subjected Hunt to false arrest (Count X). State law claims for
assault and battery related to the shooting (Count XI), intentional
and negligent infliction of emotional distress (Count XII), gross
negligence (Count XIII), survival (Count XIV), and wrongful death
(Count XV), are also asserted against the individual defendants.
Finally, the complaint sets forth two claims of
discrimination. Count IV alleges a claim of disability
discrimination under the ADA and Rehabilitation Act against the
City of Danville, based upon the allegation that the City
discriminated against Hunt due to his mental disability in
unlawfully arresting him, approving an excessive and unreasonable
use of force against him, and failing to train the officers in the
11
appropriate and reasonable police practices under the
circumstances. Count VI alleges a separate claim of race
discrimination under the Equal Protection Clause against the
individual defendants, alleging that they subjected Hunt to
discriminatory treatment on the basis of race by treating similarly
situated white persons in a substantially different and more
favorable manner than Hunt.
At the outset of the case, the district court issued an order
limiting discovery solely to matters related to the issue of
whether qualified immunity should be granted to the individual
officers on the claims brought against them. The effect of this
limitation was to allow plaintiff full discovery regarding the
events that spanned the evening of May 10 and the early morning of
May 11, but prohibiting unfettered discovery on the policies,
customs, or training practices of the City of Danville and on
plaintiff’s claims of disability and race discrimination.
In November 2004, the individual officers filed a motion for
partial summary judgment with respect to plaintiff’s § 1983 claims
for false arrest and excessive force under the Fourth Amendment.
The district court granted the motion. With regard to the false
arrest claim, the district court ruled that the officers had acted
pursuant to a facially valid warrant, had probable cause to arrest
Hunt, and were justified in entering the apartment by an exigent
12
need to check on Evans. With regard to the excessive force claim,
the district court found that the force employed by the individual
officers was not disproportional and that they had acted
objectively reasonably in light of the circumstances confronting
them. The court ordered discovery to proceed on the remaining
issues.
In August 2005, however, defendants filed another motion for
summary judgment, arguing that -- although no further discovery had
taken place -- the district court’s findings and rulings on the
prior Fourth Amendment claims were dispositive of each of
plaintiff’s additional claims. Plaintiff opposed the motion and
filed a motion to compel discovery on the remaining claims. In the
meantime, the district court granted plaintiff’s motion to dismiss
Officers Tillman and Presley without prejudice because they did not
utilize force against Hunt and they were not decisionmakers whose
actions allegedly led to the shooting of Hunt.
In December 2005, the district court granted the remaining
defendants’ motions for summary judgment, concluding that the lack
of a Fourth Amendment false arrest or excessive force violation
mandated that all remaining claims be dismissed. Plaintiff’s
request for additional discovery was dismissed. This appeal
followed.
13
III.
We begin with plaintiff’s appeal from the district court’s
order granting summary judgment to the individual officers on the
claim that they violated Hunt’s Fourth Amendment right to be free
from unreasonable and excessive force, as well as the derivative
claims brought against the City of Danville and its supervisory
officials for these alleged violations.3 Plaintiff argues that the
ERT officers lacked justification for using lethal force against
Hunt because they outnumbered him five to one, were much larger,
younger, and healthier men, and were faced with an unarmed suspect.
Under the circumstances, plaintiff argues, no reasonable officer in
the position of an ERT member could have believed himself or others
to have been in imminent danger of serious harm. We disagree.
A.
Under the doctrine of qualified immunity, police officers
performing their discretionary duties “are shielded from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). Because “[q]ualified immunity is an
3
Because plaintiff has not appealed the district court’s
ruling dismissing her false arrest claims, our remaining discussion
focuses only upon the claims of excessive force and discrimination.
14
entitlement not to stand trial or face the other burdens of
litigation . . . rather than a mere defense to liability,” it is
important to “resolv[e] immunity questions at the earliest possible
stage in litigation.” Saucier, 533 U.S. at 200-01 (internal
quotation marks omitted). When qualified immunity is asserted, the
court must consider the requisites of the defense in the proper
sequence. We must first evaluate whether, viewing the facts in the
light most favorable to the plaintiff, the officer has violated a
constitutional right; if so, we then proceed to determine whether
that right was clearly established at the time of the violation.
See id. at 201.
A claim that a police officer used excessive force during an
arrest is analyzed under the Fourth Amendment and its
reasonableness standard. An officer’s actions are not excessive if
they “are ‘objectively reasonable’ in light of the facts and
circumstances confronting [him], without regard to [his] underlying
intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989).
“The intrusiveness of a seizure by means of deadly force is
unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985). But deadly
force may be employed “[w]here the officer has probable cause to
believe that the suspect poses a threat of serious physical harm,
either to the officer or to others.” Id. at 11. “[I]f the suspect
threatens the officer with a weapon or there is probable cause to
15
believe that he has committed a crime involving the infliction or
threatened infliction of serious physical harm, deadly force may be
used if necessary to prevent escape, and if, where feasible, some
warning has been given.” Id. at 11-12. Additionally, “[b]ecause
‘police officers are often forced to make split-second judgments ––
in circumstances that are tense, uncertain, and rapidly evolving,’
the facts must be evaluated from the perspective of a reasonable
officer on the scene, and the use of hindsight must be avoided.”
Waterman v. Batton, 393 F.3d 471, 476-77 (4th Cir. 2005) (quoting
Graham, 490 U.S. at 397) (internal citation omitted).
Determining the reasonableness of the challenged actions
“requires a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.” Graham, 490
U.S. at 396 (internal quotation marks omitted). A proper
assessment of “the objective reasonableness of force is to view it
in full context, with an eye toward the proportionality of the
force in light of all the circumstances. Artificial divisions in
the sequence of events do not aid a court’s evaluation of objective
reasonableness.” Rowland v. Perry, 41 F.3d 167, 173 (4th Cir.
1994). Proper application of the test of reasonableness also
“requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue,
16
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396.
Ultimately, “the question is ‘whether the totality of the
circumstances justifie[s] a particular sort of . . . seizure.’”
Id. (quoting Garner, 471 U.S. at 8-9).
B.
Like the district court, we are satisfied that a reasonable
officer in the position of the ERT members could have believed that
Hunt posed a significant threat of serious physical harm to them,
as well as to Evans, thus justifying the use of deadly force.
At the time of the officers’ entry into the apartment, Hunt
and Evans had not been seen for days, friends and family of Evans
were concerned about her well-being, and Hunt had a recent arrest
for domestic assault upon Evans. Although Evans told the officers
early-on in the course of events that she was okay, this was
immediately upon the heels of her telling the officers that Hunt
would not let her come to the door and Evans made no further
communication with the police.
Hunt had also given the officers reasonable grounds to believe
that he had a weapon and was prepared to use it. Hunt repeatedly
told Officer Stowe that “[i]f you come in here, I’ve got something
for you.” J.A. 72. And, when Lieutenant Wyatt, the hostage
17
negotiator, attempted to converse with Hunt, Hunt told Wyatt to
“get the hell away,” and threatened to “blow [his] goddamned head
off.” J.A. 120. This was sufficient to give the officers probable
cause to believe that Hunt was armed, and that the ERT, with its
specialized training, should serve the warrant for Hunt’s arrest
and remove Evans from the apartment.
As evidenced by the videotape, the ERT repeatedly identified
themselves to Hunt and announced that they had a warrant for his
arrest before forcing entry. When they entered the smoke-filled,
dark apartment, Hunt immediately charged at the agents with what
they reasonably perceived to be a sickle-type rod or pipe and a
screwdriver which the officers perceived to be a knife.
Momentarily halted by the first round of shots fired by Officer
Ford, Hunt picked up the cane and charged at the officer a second
time, striking Officer Ford’s shield and helmet with the modified
cane. Three of the officers began firing, this time with deadly
consequence.4
4
On appeal, plaintiff contends that there is a genuine issue
of material fact as to whether Hunt had the screwdriver in one hand
because it was found near a toolbox, and as to whether Hunt
actually struck Officer Ford because there was no paint transfer on
the helmet or shield. We disagree. The lack of paint transfer and
ultimate location of the screwdriver is insufficient to contradict
the otherwise unrefuted testimony of several officers that Hunt
struck Officer Ford and that they perceived that Hunt possessed a
weapon in each hand as he charged towards Ford during that split-
second interval.
18
Under the totality of the circumstances, we are satisfied that
a reasonable officer would have believed that Hunt had a weapon
(including a gun and probably a knife), that he was holding Evans
against her will and refusing to allow her free movement, and that
he was an immediate threat to the officers and to Evans. Informed
by this information and presented with the undisputed conduct of
Hunt in the volatile atmosphere with which they were faced, we
conclude that the split-second decision on the part of the ERT to
fire upon Hunt was a reasonable and proportional one. See Sigman
v. Town of Chapel Hill, 161 F.3d 782, 788 (4th Cir. 1998)
(concluding that an officer’s decision to fire is not unreasonable
“[w]here an officer is faced with a split-second decision in the
context of a volatile atmosphere about how to restrain a suspect
who is dangerous, who has been recently -- and potentially still is
-- armed, and who is coming towards the officer despite officers’
commands to halt”).
C.
We pause here to note that the plaintiff only challenges the
district court’s determination that the ERT members were entitled
to qualified immunity, arguing that no reasonable officer in their
position would have viewed Hunt as a threat to themselves or Evans.
The National Mental Health Association, via amicus brief, urges us
to also consider the conduct of the other defendants, and their
19
decision to utilize the ERT in the first instance to serve the
warrant, in our evaluation of the totality of the circumstances.
Specifically, they argue that the “totality of the circumstances”
approach in the excessive force context should include
consideration of the fact that the Danville police officers, and in
particular the supervisory officials, provoked and precipitated the
violent confrontation with Hunt.
Although circuits differ on the question of how pre-shooting
conduct should be weighed in an excessive force case, this circuit
has repeatedly held that such conduct is generally not relevant and
is inadmissible. See Waterman, 393 F.3d at 477 (holding that the
“reasonableness of the officer’s actions in creating the dangerous
situation is not relevant to the Fourth Amendment analysis; rather,
reasonableness is determined based on the information possessed by
the officer at the moment that force is employed”); Elliott v.
Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (noting that “[t]he
court’s focus should be on the circumstances at the moment force
was used and on the fact that officers on the beat are not often
afforded the luxury of armchair reflection”); Greenidge v. Ruffin,
927 F.2d 789, 792 (4th Cir. 1991) (rejecting the “argument that, in
determining reasonableness, the chain of events ought to be traced
backward to the officer’s misconduct of failing to comply with the
standard police procedures”). Furthermore, the conduct challenged
20
by amicus was not conduct engaged in by the members of the ERT.
The ERT members were not involved in the decision-making process
which led to their deployment, but rather possessed the sole
objective to serve the warrant for Hunt’s arrest and secure the
safe recovery of Evans from the apartment as ordered by their
superiors. Thus, the conduct of the supervising officers is not
relevant to a determination of the reasonableness of the ERT’s
conduct in employing deadly force in the circumstances facing them,
or their liability for the use of such force.
D.
For the foregoing reasons, we hold that the use of deadly
force by the ERT members was objectively reasonable and not
disproportional in light of the facts and circumstances presented
to the officers at the time. Counts VII and IX, which allege,
respectively, that the individual defendants conspired with one
another to deprive Hunt of his constitutional right to be free from
unreasonable and excessive force and failed to intercede to prevent
the use of excessive and unreasonable force, fail for the same
reason. Accordingly, we affirm the district court’s grant of
summary judgment for defendants as to Counts V, VII, and IX of the
complaint.
We likewise affirm the district court’s grant of summary
judgment as to plaintiff’s Monell claims brought under the Fourth
21
Amendment. Plaintiff’s contends that, because the individual
officers violated Hunt’s Fourth Amendment rights, she was entitled
to discovery on her Monell claims, i.e., that the policies and
procedures of the supervisory defendants caused the deprivation of
Hunt’s Fourth Amendment rights by the individual officers. We
disagree. Although the district court’s discovery order did
prohibit plaintiff from fully inquiring into the policies and
customs of the Danville Police Department, plaintiff cannot, as a
matter of law, prevail on her claim that these constitutional
rights were violated pursuant to a municipal “policy or custom”
because we have found that Hunt was not subjected to an unlawful
seizure or unreasonable force under the Fourth Amendment by the
individual defendants in the first instance. See City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If a
person has suffered no constitutional injury at the hands of the
individual police officer, the fact that departmental regulations
might have authorized the use of constitutionally excessive force
is quite beside the point.”).
Plaintiff’s supervisory liability claims against Chief Morris,
and other unnamed supervisory defendants, fail for the same reason.
Because these claims are dependent upon plaintiff’s claim that the
ERT members used excessive force against Hunt, “liability cannot be
placed on either the non-shooting officers, a supervisor, or the
22
City.” Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir.
1996); see also Sigman, 161 F.3d at 788. Accordingly, we also
affirm the district court’s grant of summary judgment to the
defendants on Counts I, II, and III, insofar as they allege claims
arising from the use of excessive force, and on Count VIII.5
IV.
We turn now to consider plaintiff’s claim that the district
court erred in granting summary judgment with respect to her claims
of disability and race discrimination.
In Count IV of the complaint, plaintiff alleges that the City
of Danville knew that Hunt suffered from mental illness and
discriminated against him due to his disability by arresting him,
approving the aggressive use of force against him, and failing to
train its officers in the appropriate and reasonable police
practices under the circumstances. The crux of the disability
discrimination claim appears to be that, given Hunt’s known mental
illness, the officers should have handled him differently than they
would have handled non-mentally ill suspects in similar
circumstances. For example, plaintiff argues that the officers
should have either contacted mental health professionals for
5
We address below Count I’s allegation that the City’s
policies subjected Hunt to discriminatory treatment on the basis of
his mental illness and race.
23
assistance in dealing with the barricaded-persons situation at hand
and, more generally, should have approached Hunt in a less
aggressive manner. In other arguments, however, plaintiff seems to
advance a somewhat different claim, i.e., that the ADA’s
prohibition against discrimination was violated because the
officers treated Hunt worse than they would have treated a
similarly-situated non-disabled person.
In Count VI of the Amended Complaint, plaintiff alleges an
Equal Protection claim against Chief Morris, and other unnamed
officers in their individual capacities, under the Fourteenth
Amendment, claiming that the officers subjected Hunt to
discriminatory treatment on the basis of his race by treating
similarly situated white persons in a substantially different and
more favorable manner than Hunt was treated.
The district court rejected both discrimination claims, but
did so based solely upon its earlier determination that the
officers did not violate Hunt’s Fourth Amendment right to be free
from unreasonable and excessive force and its determination that,
because such actions were constitutionally permissible under the
Fourth Amendment, they were also legally permissible under the ADA
and Equal Protection Clause. Plaintiff contends that an adverse
determination on the Fourth Amendment claim is not necessarily
determinative of the discrimination claims and that we should, at
24
a minimum, remand the case for further proceedings as to these
claims. We agree.
A.
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity or be subjected to
discrimination by any such entity.” 42 U.S.C.A. § 12132. In Bates
v. Chesterfield County, 216 F.3d 367 (4th Cir. 2000), we addressed
a claim for violation of a plaintiff’s Fourth Amendment right to be
free from unreasonable seizure, along with a claim that he was
discriminated against on account of his disability in violation of
the ADA. Bates asserted that the officers “should have been aware
of his autism” during the challenged “incident and should have
taken this condition into account when interacting with him.” Id.
at 373. Had they done so, Bates argued, “he would not have been
detained or arrested and the ensuring scuffle would not have
occurred.” Id. Having rejected the excessive force claim, we
rejected the ADA claim as well, but not on the merits of whether
the claim could be brought in this context. Rather, we held that:
[w]e need not undertake an independent ADA inquiry in
this case because our Fourth Amendment scrutiny has
already accounted for all the situation’s circumstances.
For in evaluating the validity of an investigatory stop,
a court must consider the totality of the circumstances -
25
the whole picture. And in examining a claim of excessive
force a court must ask whether the officers’ conduct was
objectively reasonable in light of the facts and
circumstances confronting them. Just like any other
relevant personal characteristic -- height, strength,
aggressiveness -- a detainee’s known or evident
disability is part of the Fourth Amendment circumstantial
calculus.
Id. at 373 (internal citations and quotation marks omitted).
Ultimately, we upheld dismissal of the ADA claim because the
evidence established that the seizure was “not by reason of Bates’
disability, but because of Bates’ objectively verifiable
misconduct. Such reasonable police behavior is not
discrimination.” Id. It was “because of” a legitimate law
enforcement purpose rather than “because of [a] disability.” Id.This case, however, stands on a different footing than Bates.
The precise nature of the discrimination claim is not clear to us,
nor have the merits of the claim been briefed to either this court
or the district court. However, plaintiff has also been prohibited
from conducting discovery into her allegations of disability
discrimination -- regardless of whether that claim is that the City
of Danville should have treated Hunt differently because of his
mental illness or that the City of Danville treated Hunt less
favorably than his non-mentally ill counterparts in similar
circumstances. No doubt, as we held in Bates, the officers were
entitled to take Hunt’s mental illness into account during their
26
encounter with Hunt. And it certainly appears that the officers
sought to seize Hunt not because of his mental illness but because
of his “objectively verifiable misconduct” towards the officers and
Evans. However, given the existing record and the lack of any
meaningful briefing on the issue, we cannot say that there is no
set of facts from which an ADA violation could be found simply
because we have concluded that there has been no Fourth Amendment
violation by the ERT members.
In sum, we express no opinion as to the parameters of
plaintiff’s ADA claim, whether the ADA would apply to the facts of
this case or the claim as ultimately defined, or the ultimate
merits of any such claim. Rather, given the existing record and
the posture of the claims on appeal, we think it more prudent to
remand for further delineation of the discrimination claims by the
plaintiff, inquiry by the district court and, if necessary,
discovery into the claims as articulated by plaintiff.
B.
We reach the same conclusion with regard to plaintiff’s claim
of race discrimination against the individual officers. There is
no indication that the officers’ actions towards Hunt were tainted
by any race-based motivations, nor any evidence that Hunt was
treated differently from similarly-situated white suspects.
Plaintiff’s counsel was unable to articulate any particular basis
27
for this claim at argument, and it does not appear likely from the
existing record that discrimination was the motivating factor
behind the officers’ actions. Nevertheless, because the district
court restricted discovery to Fourth Amendment issues related to
the shooting and the events immediately preceding it, plaintiff has
been foreclosed from any opportunity to investigate her claim that,
even if the force employed was not excessive for purposes of the
Fourth Amendment, white persons in substantially similar situations
have been treated in a less aggressive and more favorable manner.
Accordingly, we are also compelled to reverse and remand this claim
for further evaluation. To the extent plaintiff’s Monell claims
rest upon these same allegations of race and disability
discrimination, we remand those portions of the claims for further
evaluation as well.
V.
Plaintiff’s final challenge is to the district court’s grant
of summary judgment on her state law claims for assault and battery
related to the shooting, intentional and negligent infliction of
emotional distress, gross negligence, survival, and wrongful death.
As in the case of the Monell claims, plaintiff argues only that we
should reverse summary judgment as to the state law claims because
the individual officers violated Hunt’s Fourth Amendment right to
28
be free from excessive and unreasonable force and because no
independent discovery was conducted on the state law claims. To
the extent plaintiff’s state law claims are premised upon
plaintiff’s allegations that the officers employed excessive force
against Hunt or engaged in an unlawful arrest of him, we affirm the
district court’s grant of summary judgment. To the extent they are
premised upon plaintiff’s allegations of discriminatory conduct, we
remand for an evaluation of the claims, and discovery if necessary,
along with the federal discrimination claims.
VI.
For the foregoing reasons, we reverse the district court’s
order granting summary judgment to the defendants on plaintiff’s
claims of race and disability discrimination under § 1983, as well
as plaintiff’s state law claims to the extent they are based upon
the allegations of race and disability discrimination, and remand
for further proceedings. The remainder of the district court’s
order granting summary judgment to the defendants is affirmed.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
29
WILKINSON, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority’s disposition of the excessive
force claims and would affirm the judgment of the district court
across the board. Indeed, the majority makes such a fine and
thoughtful case for affirmance that it would surprise any reader
to learn that this litigation is not at an end. The City of
Danville police officers who confronted Rennie Edward Hunt, Jr.,
responded commendably to the apparent hostage situation, as the
majority opinion makes clear. Additional proceedings on
disability and race discrimination claims can amount under the
circumstances to no more than a fishing expedition.
I find no fault with the majority’s description of the
situation that the defendants confronted on May 11, 2002. When
Danville police officers arrived at Hunt’s apartment in response
to a 911 call from a neighbor, neither Hunt nor his girlfriend,
Virginia Evans, had been seen in the several days since Hunt’s
return from a psychiatric hospitalization. Maj. Op. at 4, 16.
Evans’s friends and family expressed concern about her well-
being. Id. at 16. Evans herself told police that Hunt, who had
recently been arrested for domestic assault against Evans,
refused to let her come to the door. Id. at 16-17. And while
she initially told the officers that she was okay, she soon
30
ceased to respond to their attempts to contact her in order to
ensure that she was safe. Id.
Hunt’s own statements to the officers did nothing to dispel
fears of the worst. As the majority writes, Hunt gave the
officers “reasonable grounds to believe that he had a weapon and
was prepared to use it,” telling one officer “[i]f you come in
here, I’ve got something for you,” and threatening to “blow [the]
goddamned head off” of another. Id. at 17.
Danville Police Department officials reasonably elected to
deploy the City’s Emergency Response Team to the building. After
repeatedly identifying themselves and stating that they had a
warrant for Hunt’s arrest, members of the team forced entry into
the apartment. Id. Hunt’s actions in the “smoke-filled, dark”
space gave the officers additional cause to fear for Evans’s
safety and their own. Id. “Hunt immediately charged at the
agents with what they reasonably perceived to be a sickle-type
rod or pipe and a screwdriver which the officers perceived to be
a knife.” Id. Officer Ford fired two or three shots from his
weapon, at which point Hunt picked up his cane and charged at the
officers again, hitting Officer Ford’s shield and helmet. Id. at
9, 17-18. During this second charge, three officers fired at
Hunt. Id. at 9.
31
Under these circumstances, as the majority notes, the
officers’ use of deadly force, though tragic, was reasonable and
proportional, because “a reasonable officer would have believed
that Hunt had a weapon (including a gun and probably a knife),
that he was holding Evans against her will and refusing to allow
her free movement, and that he was an immediate threat to the
officers and to Evans.” Id. at 18.
There is no hint of discrimination in the officers’
reasonable and proportional response. The majority goes out of
its way to emphasize as much. It writes that “it certainly
appears that the officers sought to seize Hunt not because of his
mental illness but because of his ‘objectively verifiable
misconduct’ towards the officers and Evans,” and it further
concludes that “[t]here is no indication that the officers’
actions towards Hunt were tainted by any race-based motivations,
nor any evidence that Hunt was treated differently from
similarly-situated white suspects.” Id. at 26. Based upon the
majority’s description of the crisis, the majority writes with
some understatement when it says “it does not appear likely from
the existing record that discrimination was the motivating factor
behind the officers’ actions.” Id. at 27.
Indeed, it is not clear even to the majority precisely what
discrimination the plaintiff claims. With respect to disability,
32
the majority writes that “[t]he precise nature of the
discrimination claim is not clear to us,” id. at 25, and with
respect to race, the majority notes that “[p]laintiff’s counsel
was unable to articulate any particular basis for this claim at
argument,” id. at 26-27. Despite this, the majority remands “for
further proceedings.” Id. at 3. Thankfully, the majority’s
remand is narrow, calling upon the district court to engage in
“further delineation,” id. at 26, and “further evaluation,” id.
at 27, but not mandating discovery, id. at 26-28.
Statutory protections may of course exceed constitutional
ones and “an adverse determination on the Fourth Amendment claim
is not necessarily determinative of the discrimination claims.”
Id. at 24. This does not mean, however, that statutory and
constitutional protections must be placed so squarely and
affirmatively at odds. The qualified immunity balance between
vindicating meritorious claims and protecting officials from the
burdens of litigation is upset when plaintiffs may demand
discovery into the motivations of officials whose conduct was
outwardly blameless. Harlow v. Fitzgerald, 457 U.S. 800, 815-18
(1982). “[T]here is often no clear end to the relevant evidence”
in such inquiries, making them “peculiarly disruptive of
effective government.” Id. at 817.
33
Such considerations affect the availability of discovery, as
the Supreme Court has held that “a credible showing of different
treatment of similarly situated persons” is required before
plaintiffs may put officials to the labor and expense of
discovery concerning equal protection claims of selective
prosecution. United States v. Armstrong, 517 U.S. 456, 470
(1996); see also Marshall v. Columbia Lea Reg’l Hospital, 345
F.3d 1157, 1167 (10th Cir. 2003) (applying Armstrong limits to
equal protection claims concerning traffic stops and arrests);
United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002)
(applying Armstrong limits to claim that defendant was singled
out for law enforcement interview). To proceed with motivational
inquiries under disability statutes and the Equal Protection
Clause where a neutral basis for action is so exceptionally clear
is to set the protections of immunity and the plain teaching of
Armstrong at naught.
While the majority describes a remand as the “more prudent”
course, Maj. Op. at 26, prudence counsels against perpetuating
any further litigation based upon the encounter that the majority
describes. There is ample basis to affirm on a record showing
that Danville’s officers sought to protect in non-excessive
fashion an innocent woman they reasonably believed to be a
hostage, while under attack by a man they reasonably believed to
34
be armed and dangerous. If in a desire to avoid litigation the
officers had waited and Evans had been harmed, they would have
been faulted all the more through the lens of hindsight.
Continuing this lawsuit can only demoralize those who place their
lives at risk for others.
I would affirm the judgment.
35