Damon Wilson v. Prince George's County, Md , 893 F.3d 213 ( 2018 )


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  •                                       PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 17-1856
    DAMON WILSON,
    Plaintiff - Appellant,
    v.
    PRINCE GEORGE’S COUNTY, MARYLAND; PFC GILL, ID #3361, Prince
    George’s County Police,
    Defendants - Appellees.
    Appeal from the United States District Court for the District of Maryland, at Greenbelt.
    William Connelly, Magistrate Judge. (8:16-cv-00425-WGC)
    Argued: March 22, 2018                                          Decided: June 18, 2018
    Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
    Affirmed in part, vacated in part, and remanded by published opinion. Judge Keenan
    wrote the opinion, in which Chief Judge Gregory and Judge Floyd joined.
    ARGUED: George Aubrey Harper, LAW OFFICES OF GEORGE HARPER, Upper
    Marlboro, Maryland, for Appellant. Gessesse Teferi, PRINCE GEORGE’S COUNTY
    OFFICE OF LAW, Upper Marlboro, Maryland, for Appellees. ON BRIEF: Jared M.
    McCarthy, County Attorney, Andrew J. Murray, Deputy County Attorney, PRINCE
    GEORGE’S COUNTY OFFICE OF LAW, Upper Marlboro, Maryland, for Appellees.
    BARBARA MILANO KEENAN, Circuit Judge:
    Damon Wilson was shot several times during an encounter with Officer Brendan
    Gill, a Prince George’s County, Maryland, police officer. The incident occurred while
    Officer Gill was investigating an emergency call that Wilson had committed a burglary of
    his former girlfriend’s dwelling and had assaulted her.
    Wilson filed suit under 42 U.S.C. § 1983 against Officer Gill and Prince George’s
    County (collectively, the defendants), alleging excessive force in violation of the Fourth
    Amendment. Wilson also alleged in his complaint that Officer Gill’s conduct violated
    certain provisions of Maryland state law. The district court awarded summary judgment
    in the defendants’ favor, holding that Officer Gill was entitled to qualified immunity, and
    that the County was not liable because no constitutional violation occurred. 1
    Upon our review, we hold that the district court erred in determining that Officer
    Gill’s conduct did not violate Wilson’s Fourth Amendment rights.           Nevertheless, we
    affirm the district court’s determination that Officer Gill is entitled to qualified immunity,
    because we hold that the constitutional violation was not clearly established when the
    incident occurred. We also affirm the court’s judgment on the common law intentional
    infliction of emotional distress claim against Officer Gill and on the respondeat superior
    claim asserted against the County. However, because questions of immunity under state
    law remain, we vacate the court’s award of summary judgment on Wilson’s remaining
    1
    Regarding the Section 1983 claim of excessive force, the district court held that
    Officer Gill’s use of deadly force was objectively reasonable. Based on this holding, the
    court disposed of the Maryland state-law claims and awarded summary judgment in favor
    of the defendants on all claims.
    2
    state-law claims against Officer Gill, and remand those claims to the district court for
    further proceedings.
    I.
    The parties largely agree on the events that occurred from the moment that Officer
    Gill first saw Wilson until the time that Officer Gill fired his weapon. We note any
    disputes of fact below.
    On October 7, 2012, late in the afternoon, Wilson walked to the home of his
    former girlfriend, Mynia Johnson, because he wanted to see his two daughters who were
    in Johnson’s care. After “knocking” and “banging” on Johnson’s apartment door and
    receiving no response, Wilson began shouting that he wanted to see his children. As his
    anger increased, Wilson “kicked down” the front door of Johnson’s apartment and
    walked inside, cursing and yelling at Johnson and one of her male guests.
    After greeting one daughter, Wilson left the apartment. Johnson followed him
    outside and, during an argument that ensued, Wilson slapped Johnson. When Johnson
    threatened to call the police, Wilson attempted to take her phone, which fell into a drain.
    Wilson left the area and walked to his brother’s home. Because his brother was
    preoccupied with other matters, Wilson once again became angry, seized a pocket knife,
    and left his brother’s home. Wilson walked back toward Johnson’s apartment, intending
    to commit suicide in front of her so that she would blame herself for his death.
    Meanwhile, Johnson had placed a telephone call to a 911 operator and had
    informed the operator that her ex-boyfriend had broken into her apartment and had
    3
    assaulted her. Officer Gill arrived at the apartment in response to the 911 call. Johnson
    showed Officer Gill the damaged apartment door, and informed him that Wilson had
    assaulted her after breaking into the apartment. Johnson later accompanied Officer Gill
    outside the building. As Officer Gill and Johnson were leaving the building, Johnson
    observed Wilson some distance away and identified him to Officer Gill, who directed
    Johnson to return to her apartment. 2
    Officer Gill began walking toward Wilson, attempting to engage him in a
    dialogue. Moments later, Wilson pulled a shiny object out of his pocket. 3 However, due
    to the distance between him and Wilson, Officer Gill was unable to identify the object.
    Because Wilson continued walking in Officer Gill’s direction, Officer Gill drew
    his service weapon and commanded Wilson between ten and fifteen times to drop the
    object in his hands, which object Officer Gill later identified as a knife. After Wilson
    failed to drop the knife, Officer Gill called for assistance on his radio. Wilson told
    Officer Gill to leave so that Wilson could “do what [he] wan[ted to] do.” Wilson ignored
    Officer Gill’s repeated command that Wilson drop the knife.
    Instead, Wilson began directing obscene remarks at Johnson. Rather than drop the
    knife, Wilson took some steps forward, started “poking” himself with the knife, and “slit
    2
    Johnson was present for the events that took place following Wilson’s re-
    appearance at her apartment building. It is not clear whether she ignored Officer Gill’s
    request completely or initially obliged but later came out of the building.
    3
    It is undisputed that this object was the pocket knife Wilson took from his
    brother’s home.
    4
    his throat.” He then took a few more steps toward Officer Gill, and began “stab[bing]”
    and “poking” himself in the chest, which he testified caused him to “stumble[]” forward
    about four steps.
    According to Wilson, at this point he was about 20 feet away from Officer Gill.
    Officer Gill, however, disputed Wilson’s estimate and stated that he was between 10 and
    15 feet away from Wilson. Johnson, who was standing about one or two feet behind
    Officer Gill, estimated that Wilson stopped eight feet away from Officer Gill. Although
    Officer Gill stated that Wilson “closed the distance” after stabbing himself in the chest,
    Officer Gill did not describe Wilson’s movement with any particularity.          However,
    sensing that Wilson was “too close,” Officer Gill discharged his firearm five times,
    aiming for the center of Wilson’s body. The record does not indicate whether Officer
    Gill issued a further warning to Wilson before shooting him. The record also lacks
    information regarding how quickly Officer Gill deployed the five shots.
    Wilson suffered multiple gunshot wounds to the torso, but the record does not
    indicate which shots, or how many shots, hit Wilson. The gunshot wounds caused
    Wilson to fall to the ground. With the assistance of another police officer who arrived
    shortly after the shooting, Officer Gill rolled Wilson away from the knife, placed
    handcuffs on him, and began performing CPR. 4
    4
    Wilson’s amended complaint alleged that he suffered permanent partial paralysis
    as a result of his gunshot injuries. However, there is no additional evidence in the record
    establishing the extent of Wilson’s injuries.
    5
    In his complaint filed against Officer Gill and Prince George’s County, Wilson
    asserted a claim under 42 U.S.C. § 1983 alleging excessive force in violation of the
    Fourth Amendment, as well as several claims under Maryland law. 5 The defendants filed
    a motion for summary judgment, contending that Officer Gill’s conduct was reasonable
    and that he otherwise was immune from suit under the doctrine of qualified immunity. In
    granting the defendants’ motion, the district court concluded that Officer Gill’s use of
    force was objectively reasonable and, therefore, did not constitute excessive force. Based
    on this conclusion, the district court also dismissed Wilson’s remaining claims against
    Officer Gill, as well as his claims against Prince George’s County. 6 Wilson timely noted
    this appeal.
    5
    The Maryland claims included causes of action under Articles 24 and 26 of the
    Maryland Declaration of Rights, and the common law torts of battery and intentional
    infliction of emotional distress. Wilson also originally brought a state-law claim for
    negligence against Officer Gill and a state-law claim of “unconstitutional custom and
    practice” against the County, but abandoned both claims in the district court. At oral
    argument before this Court, Wilson abandoned his appeal regarding his claim for
    intentional infliction of emotional distress.
    6
    We conclude that Wilson has abandoned on appeal any challenge to the district
    court’s dismissal of his claims against the County based on respondeat superior liability.
    Fed. R. App. P. 28(a)(8)(A) (“[T]he argument . . . must contain . . . appellant’s
    contentions and the reasons for them.”); see also, e.g., Jacobs v. N.C. Admin. Office of the
    Courts, 
    780 F.3d 562
    , 568 n.7 (4th Cir. 2015). In his briefing to this Court, Wilson
    asserts that the district court erred in granting summary judgment to the defendants.
    However, Wilson’s brief contains no reference to his claim against the County, much less
    offers any argument regarding the district court’s dismissal of that particular claim. And
    importantly, Wilson fails to address how any determination that Officer Gill’s conduct
    was unlawful would affect Wilson’s claims against the County and to address potential
    issues of governmental immunity. Accordingly, by failing to raise this issue, Wilson has
    abandoned it.
    6
    II.
    A.
    We review de novo the district court’s award of summary judgment. Meyers v.
    Balt. Cty., Md., 
    713 F.3d 723
    , 730 (4th Cir. 2013). Summary judgment is appropriate
    only when there are no material facts in dispute, and the moving party is entitled to
    judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986); 
    Meyers, 713 F.3d at 730
    .
    In conducting our review, we construe the evidence in the light most favorable to
    Wilson, the non-moving party. Lee v. Town of Seaboard, 
    863 F.3d 323
    , 327 (4th Cir.
    2017). We do not weigh the evidence or make credibility determinations. See Ray
    Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 
    673 F.3d 294
    , 305 (4th Cir. 2012)
    (stating that credibility determinations are not part of summary judgment proceedings);
    Gray v. Spillman, 
    925 F.2d 90
    , 95 (4th Cir. 1991) (assessing witness credibility and
    weighing evidence are functions of the jury, not of the trial judge ruling on motion for
    summary judgment).
    B.
    Qualified immunity is a doctrine that “balances two important interests—the need
    to hold public officials accountable when they exercise power irresponsibly and the need
    to shield officials from harassment, distraction, and liability when they perform their
    duties reasonably.” Pearson v. Callahan, 
    555 U.S. 223
    , 231 (2009). The doctrine of
    qualified immunity protects from liability officers who commit constitutional violations,
    but whose conduct does not violate clearly established statutory or constitutional rights
    7
    known to a reasonable person. 
    Meyers, 713 F.3d at 731
    . The burden of proving the
    affirmative defense of qualified immunity rests on the party seeking to invoke it. 
    Id. Our application
    of the qualified immunity doctrine is guided by the Supreme
    Court’s analysis in Saucier v. Katz, 
    533 U.S. 194
    (2001), later modified by the Court’s
    decision in Pearson, 
    555 U.S. 223
    . Under the Court’s two-step approach, we may first
    determine whether the facts alleged or shown, taken in the light most favorable to the
    plaintiff, establish that the officer’s conduct violated the plaintiff’s constitutional right.
    
    Saucier, 533 U.S. at 201
    . If this initial prong is satisfied, we evaluate whether the right at
    issue was “clearly established” at the time of the officer’s conduct. 7 
    Id. Accordingly, even
    when the facts in the record establish that the officer’s conduct violated a plaintiff’s
    constitutional rights, the officer still is entitled to immunity from suit “if a reasonable
    person in the [officer’s] position could have failed to appreciate that his conduct would
    violate those rights.” Torchinsky v. Siwinski, 
    942 F.2d 257
    , 261 (4th Cir. 1991) (citation
    and internal quotation marks omitted).
    C.
    We first consider whether the facts alleged, taken in the light most favorable to
    Wilson, show that Officer Gill’s conduct violated the Fourth Amendment. 
    Saucier, 555 U.S. at 201
    . Wilson argues that Officer Gill’s conduct of firing his weapon at Wilson
    7
    Under Pearson, we need not conduct the two-step analysis in the sequence set
    forth in 
    Saucier. 555 U.S. at 236
    . Nonetheless, we exercise our discretion in this case
    and conduct the qualified immunity analysis in the order provided by the Court in
    Saucier. See 
    id. 8 constituted
    excessive force in violation of the Fourth Amendment. In response, Officer
    Gill contends that his use of deadly force was justified, because he reasonably feared for
    his safety and the safety of third parties present during his exchange with Wilson.
    Viewing the facts in the light most favorable to Wilson, we disagree with Officer Gill’s
    argument.
    The Fourth Amendment prohibits police officers from using excessive or
    unreasonable force in the course of making an arrest. Graham v. Connor, 
    490 U.S. 386
    ,
    395 (1989). We evaluate whether an officer has used excessive force based on a standard
    of “objective reasonableness.” 
    Id. at 396–97,
    399. In applying this standard, we consider
    “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat
    to the safety of the officers or others, and [3] whether [the suspect] is actively resisting
    arrest or attempting to evade arrest by flight.” 
    Id. at 396.
    An officer may not use deadly
    force against a person who “poses no immediate threat to the officer and no threat to
    others.” Tennessee v. Garner, 
    471 U.S. 1
    , 11 (1985).
    To determine whether a need for force outweighed Wilson’s Fourth Amendment
    rights, we examine each of the three Graham factors. We easily resolve the first and
    third factors. Regarding the first factor, Wilson does not dispute that he “kicked down”
    Johnson’s door, entered her apartment without her consent, and assaulted her. It also is
    undisputed that Officer Gill knew that Wilson had committed these offenses before his
    encounter with Wilson. Accordingly, the first Graham factor weighs in Officer Gill’s
    favor. 
    Graham, 490 U.S. at 396
    .
    9
    The third Graham factor, whether Wilson resisted or attempted to evade arrest,
    favors Wilson. Officer Gill had not attempted to arrest Wilson, and Wilson was not
    trying to evade arrest when Officer Gill repeatedly shot Wilson. Thus, this factor weighs
    against Officer Gill’s use of deadly force. 
    Id. The parties’
    arguments center on whether the second Graham factor supported the
    use of deadly force, namely, whether a reasonable officer could have perceived that
    Wilson “pose[d] an immediate threat to the safety of the officer[] or others.” 
    Id. Viewed in
    the light most favorable to Wilson, the facts show that Wilson did not threaten Officer
    Gill, Johnson, or any other individual present at the scene during the encounter. Wilson
    had a small knife in his hand and did not drop the knife when ordered to do so by Officer
    Gill. However, Wilson testified, and the defendants do not dispute, that Wilson never
    pointed the pocket knife in the direction of anyone but himself. Neither did Wilson move
    suddenly or act in a threatening manner toward Officer Gill or others. 8 Additionally, at
    the time Officer Gill discharged his weapon, Wilson had slit his own throat and had
    stabbed himself in his chest.
    And finally, a key disputed fact further calls into question whether Officer Gill
    faced an immediate threat. The parties dispute the distance separating Officer Gill and
    Wilson at the time that Wilson “stumbled” forward and Officer Gill discharged his
    weapon. The estimates of the three people present ranged between eight feet and 20 feet.
    8
    As noted previously, Wilson testified in his deposition that he “stumbled” a few
    steps toward Officer Gill. Drawing a reasonable inference in Wilson’s favor, a jury could
    find such movement non-threatening.
    10
    A jury could determine that Wilson, standing 20 feet away and armed only with a pocket
    knife that he was using solely against himself, did not pose an immediate threat to Officer
    Gill or others, thereby rendering Officer Gill’s use of lethal force unreasonable.
    Under these alleged facts, therefore, a jury could conclude that Officer Gill
    violated Wilson’s Fourth Amendment right to be free from excessive force. In reaching
    this conclusion, we emphasize that we do not make credibility determinations in
    resolving the first prong of the Saucier analysis. 9 See Ray 
    Commc’ns, 673 F.3d at 305
    .
    Therefore, we conclude that the present record, when viewed in the light most favorable
    to Wilson, establishes that Officer Gill’s use of force was not “objectively reasonable”
    and, thus, was excessive in violation of the Fourth Amendment. Accordingly, we hold
    that the district court erred in reaching a contrary conclusion.
    D.
    Having determined that Officer Gill’s actions were an unconstitutional use of
    excessive force, we turn to consider the second step of the qualified immunity analysis,
    namely, whether Officer Gill’s conduct violated a constitutional right that was clearly
    9
    The district court relied on the report of the defendants’ expert, Craig Dickerson,
    in reaching the determination that Officer Gill’s use of force was reasonable and justified.
    Dickerson opined that a person armed with a knife and standing from an officer at a
    distance of 21 feet could rush toward, and “cut,” an officer before the officer would be
    able to draw his weapon from its holster. Here, however, the facts are undisputed that
    Officer Gill already had drawn his weapon when Wilson was about 40 feet away from
    Gill. For this reason, we conclude that Dickerson’s expert report is largely irrelevant to
    our determination of reasonableness. We also observe that it is for the jury to determine
    whether to credit Dickerson’s opinion. See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255 (1986).
    11
    established at the time the conduct occurred. 10 
    Saucier, 533 U.S. at 201
    . A right is
    “clearly established” if it would be clear to a reasonable officer that the alleged conduct is
    unlawful. Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982). In other words, the contours
    of the right must be “sufficiently clear ‘that every reasonable official would [have
    understood] that what he is doing violates that right.’” Reichle v. Howards, 
    566 U.S. 658
    , 664 (2012) (alteration in the original) (quoting Ashcroft v. al-Kidd, 
    563 U.S. 731
    ,
    741 (2011)). To determine whether a right is clearly established, we assess whether the
    law has “been authoritatively decided by the Supreme Court, 11 the appropriate United
    States Court of Appeals, or the highest court of the state.” Wilson v. Layne, 
    141 F.3d 111
    , 114 (4th Cir. 1998) (citation omitted).
    A right need not be recognized by a court in a specific factual context before such
    right may be considered “clearly established” for purposes of qualified immunity. See
    10
    The district court did not reach this step of the analysis, concluding that there
    was no Fourth Amendment violation. Although we could exercise our discretion and first
    determine whether the right, as alleged, was clearly established without affirmatively
    holding that there was a violation of the Fourth Amendment when the evidence is
    construed in the light most favorable to Wilson, we think it is important to recognize the
    Fourth Amendment violation in this case in order “to further the development of
    constitutional precedent.” 
    Pearson, 555 U.S. at 236
    .
    11
    Supreme Court precedent offers little guidance regarding our determination
    whether the right at issue is clearly established because in many instances, the Court has
    declined to decide whether an officer’s actions constituted a violation of the Fourth
    Amendment and instead has considered whether the right recognized by a court of
    appeals was clearly established. See, e.g., Kisela v. Hughes, 
    138 S. Ct. 1148
    , 1152
    (2018) (stating that “the Court need not, and does not, decide whether Kisela violated the
    Fourth Amendment . . . [f]or even assuming a Fourth Amendment violation occurred[,]”
    the officer’s conduct did not violate clearly established law); Brosseau v. Haugen, 
    543 U.S. 194
    , 198 (2004) (“We express no view as to the correctness of the Court of Appeals’
    decision on the constitutional question itself.”).
    12
    Hope v. Pelzer, 
    536 U.S. 730
    , 739 (2002); Buonocore v. Harris, 
    65 F.3d 347
    , 356–57
    (4th Cir. 1995). However, the Supreme Court has emphasized in recent years that courts
    are “not to define clearly established law at a high level of generality,” and that
    “[s]pecificity is especially important in the Fourth Amendment context.”         Kisela v.
    Hughes, 
    138 S. Ct. 1148
    , 1152 (2018) (quoting City and Cty. of San Francisco v.
    Sheehan, 
    135 S. Ct. 1765
    , 1775–76 (2015)). Thus, although we often have looked to the
    general rules articulated in Graham, 
    490 U.S. 395
    , and Garner, 
    471 U.S. 1
    , to hold that a
    right is clearly established, see, e.g., Clem v. Corbeau, 
    284 F.3d 543
    , 553–54 (4th Cir.
    2002), the Supreme Court has cautioned that we should do so only in “obvious case[s]”
    exhibiting violations of the core of the Fourth Amendment, 
    Kisela, 138 S. Ct. at 1153
    (citation omitted).
    Defined at the level of specificity required by the Supreme Court, we ask here
    whether it was clearly established law in October 2012 that shooting an individual was an
    unconstitutional use of excessive force when: (1) the officer had probable cause to
    believe that the person had committed certain misdemeanors, one of which involved the
    use of force against another person; (2) the individual was standing about 20 feet from
    the officer holding a knife and using it to hurt himself, but was not threatening anyone or
    making any sudden movements; and (3) the individual had ignored the officer’s repeated
    commands to drop the knife. Upon our review of relevant precedent, we hold that it was
    not clearly established law in October 2012 in the Supreme Court, this Circuit, or in the
    Court of Appeals of Maryland, that an officer shooting an individual under such
    circumstances would be engaging in an unconstitutional use of excessive force.
    13
    The cases we have examined are not sufficiently analogous to the present case to
    have placed Officer Gill on such notice. For example, when an individual was armed, we
    have held that the “mere possession” of a deadly weapon by the individual did not justify
    the use of deadly force. See Cooper v. Sheehan, 
    735 F.3d 153
    , 154, 159–60 (4th Cir.
    2013) (reviewing the state of the law in 2007 and determining that the right was clearly
    established). However, when additional facts indicated that an armed person posed a
    threat of harm to the officers or others, we have held that the use of deadly force was
    objectively reasonable. See Anderson v. Russell, 
    247 F.3d 125
    , 128, 132 (4th Cir. 2001)
    (holding that officers were entitled to qualified immunity for shooting a man suspected of
    carrying a gun who initially complied with commands, but later lowered his hands and
    reached into his back left pocket toward a bulge under his clothing); see also Slattery v.
    Rizzo, 
    939 F.2d 213
    , 214–17 (4th Cir. 1991) (holding that the shooting of an individual,
    suspected of narcotics trafficking, was objectively reasonable when the suspect ignored
    commands to raise his hands and turned in the officers’ direction with his hand partially
    closed around an object).
    Here, Wilson was not shot solely because he had a deadly weapon in his
    possession. Rather, Wilson was suspected of committing two crimes, namely, breaking
    and entering and battery, and Officer Gill was aware of these crimes before his
    interaction with Wilson.    Wilson also did not comply with Officer Gill’s repeated
    commands to drop the knife he was holding. Thus, our decision in Cooper did not put
    Officer Gill on notice that shooting Wilson would be crossing a bright line in violation of
    14
    the Fourth Amendment. See, e.g., 
    Anderson, 247 F.3d at 128
    , 132; 
    Slattery, 939 F.2d at 214
    –17.
    Cases featuring officer interactions with suicidal individuals or individuals
    suffering from mental illness likewise are not dispositive. For example, in 
    Clem, 284 F.3d at 545
    –46, two officers responded to a call by a woman explaining that her husband,
    Robert Clem, was suffering from dementia and various physical problems. Although
    Clem was not armed, he grew agitated and began acting erratically after the officers’
    arrival, causing the officers twice to administer pepper spray in an effort to subdue Clem.
    
    Id. at 547.
    Clem began “stomping” forward toward one of the officers with his hands
    open and in front of his body. 
    Id. at 548.
    Without giving Clem any warning, one of the
    officers shot him. 
    Id. We held
    that the officer’s use of force was unreasonable in
    violation of the Fourth Amendment. 
    Id. at 552.
    In contrast, we held in Sigman v. Town of Chapel Hill, 
    161 F.3d 782
    (4th Cir.
    1998), that an officer was entitled to qualified immunity for shooting an individual who
    at one point was armed with a knife, and had been drinking, throwing things, and cutting
    himself. 
    Id. at 787.
    The individual had ignored several commands from the officers, had
    made threats to the officers and others, and had used the knife to slash at one of the
    officers through a window before one officer shot him. 
    Id. The conduct
    at issue here lies somewhere between the officer’s unreasonable use
    of force in Clem and the officers’ reasonable use of force in Sigman. Although Clem and
    Sigman both featured a mentally unstable individual, neither case is sufficiently
    analogous to the circumstances present here. Unlike in Clem, Wilson was armed and had
    15
    been engaged in criminal activity. And unlike in Sigman, Wilson never threatened
    others, either verbally or with the knife, during his interaction with Officer Gill.
    Therefore, our precedent at the time regarding the use of force on mentally ill individuals
    did not offer sufficient guidance to place “every reasonable offic[er]” in Officer Gill’s
    position on notice that his conduct would violate the Fourth Amendment. 
    Ashcroft, 563 U.S. at 741
    (citation and internal quotation marks omitted).
    Our review of Maryland Court of Appeals decisions affirms our conclusion that
    Officer Gill was not on notice regarding the constitutional violation resulting from his
    alleged conduct. Decisions by the Maryland Court of Appeals encompass cases that
    fairly could be deemed “obvious case[s]” of unreasonable uses of force. See Barbre v.
    Pope, 
    935 A.2d 699
    , 716 (Md. 2007) (holding that officer was not entitled to immunity
    under the Maryland Tort Claims Act for shooting an individual who was not intoxicated,
    incapacitated, or threatening the safety of the officer or others, and whose hands were
    raised in surrender). And decisions by that court have ratified an officer’s use of deadly
    force against individuals who reasonably appear to be armed in dangerous circumstances.
    See Richardson v. McGriff, 
    762 A.2d 48
    , 49–50 (Md. 2000) (affirming jury verdict in
    favor of officer when officer shot the plaintiff after the officer’s partner quickly opened
    the door to a closet in a dark kitchen, and officer shined flashlight inside, seeing the
    plaintiff holding and lowering into firing position what appeared to be a large weapon).
    However, the Court of Appeals of Maryland has not decided a case with facts sufficiently
    analogous to those present here such that Officer Gill was on notice that his conduct
    violated the Fourth Amendment.
    16
    A survey of other circuits’ case law also illustrates the lack of clear consensus
    regarding violations of this nature. In some instances, courts have found excessive the
    use of deadly force against erratically behaving or suicidal individuals who are not
    otherwise threatening anyone and have not committed any violent acts.             See, e.g.,
    McKenney v. Mangino, 
    873 F.3d 75
    , 79–80, 83 (1st Cir. 2017) (holding that it was
    excessive force for an officer to shoot a suicidal individual holding a gun in one hand and
    who ignored officer’s commands but who did not point the gun at anyone or act in a
    threatening manner toward the officer); Estate of Escobedo v. Bender, 
    600 F.3d 770
    , 773,
    780, 786 (7th Cir. 2010) (holding that the use of tear gas, flash bang devices, and ultimate
    shooting of an armed suicidal individual under the influence of drugs was excessive when
    the individual did not threaten anyone). But another out-of-circuit case can be construed
    as supporting Officer Gill’s decision to use deadly force in this case. See, e.g., Elizondo
    v. Green, 
    671 F.3d 506
    , 508, 510 (5th Cir. 2012) (holding that officer’s shooting of a
    suicidal teenager not suspected of committing any crimes was reasonable when teenager
    refused orders to drop the knife in his hand and approached officer with the knife raised).
    Given the lack of “a consensus of cases of persuasive authority” from other jurisdictions,
    a reasonable officer in Officer Gill’s position would not have known that his actions were
    unlawful. Booker v. S.C. Dep’t of Corr., 
    855 F.3d 533
    , 538–39 (4th Cir. 2017) (citation
    omitted).
    Ultimately, this case simply is not an “obvious” one, permitting us fairly to say
    that the decisions in Garner and Graham, on their own, clearly established the right at
    issue. White v. Pauly, 
    137 S. Ct. 548
    , 552 (2017) (citation and internal quotation marks
    17
    omitted). As of October 2012, our precedent shed some light on officer interactions with
    unarmed, mentally ill individuals, see generally Clem, 
    284 F.3d 543
    , and with armed,
    actively threatening, mentally unstable individuals, see generally Sigman, 
    161 F.3d 782
    .
    Our cases as of that time also addressed the reasonableness of deadly force against
    armed, but non-threatening individuals. See generally Cooper, 
    735 F.3d 153
    . And our
    decisions up to that date provided guidance to officers faced with armed individuals
    suspected of violent crimes. See generally, e.g., Anderson, 
    247 F.3d 125
    ; Slattery, 
    939 F.2d 213
    . However, as of October 2012, our precedent and the decisions of the Court of
    Appeals of Maryland fell short of providing sufficient notice to an officer to bar qualified
    immunity when the officer used deadly force against an armed, but otherwise non-
    threatening, self-harming individual suspected of committing misdemeanor offenses.
    Accordingly, we hold that in October 2012, it was not clearly established that an
    officer would violate a suspect’s Fourth Amendment right to be free from excessive force
    by shooting a person who: (1) was suspected of having committed a burglary and a
    battery; (2) was standing about 20 feet from the officer holding a knife, inflicting harm on
    himself and stumbling, but not threatening others or making sudden movements; and (3)
    was refusing to obey the officer’s repeated commands to drop the knife at the time he was
    shot. We therefore conclude that Officer Gill is entitled to qualified immunity. We
    emphasize, however, that as of the date this opinion issues, law enforcement officers are
    now on notice that such conduct constitutes excessive force in violation of the Fourth
    Amendment.
    18
    III.
    Wilson’s remaining claims against Officer Gill involve alleged violations of the
    Maryland Declaration of Rights Articles 24 and 26, and common law battery. The same
    standard applies to the Maryland Declaration of Rights claims as to claims asserted under
    the Fourth Amendment. See Henry v. Purnell, 
    652 F.3d 524
    , 536 (4th Cir. 2011) (stating
    that the court’s conclusion that the defendant violated the plaintiff’s Fourth Amendment
    rights meant that the defendant also violated the plaintiff’s rights under Articles 24 and
    26 of the Maryland constitution); see also 
    Richardson, 762 A.2d at 56
    ; Okwa v. Harper,
    
    757 A.2d 118
    , 140–41 (Md. 2000). Thus, because we have concluded that Officer Gill
    used excessive force in violation of the Fourth Amendment, Officer Gill’s conduct also
    violated the Maryland constitution. See 
    Henry, 652 F.3d at 536
    . Additionally, Officer
    Gill’s conduct, if proved, would constitute a battery under Maryland law. See French v.
    Hines, 
    957 A.2d 1000
    , 1037 (Md. Ct. Spec. App. 2008) (noting that “[t]o the extent that
    the officer uses excessive force in effectuating an arrest, the privilege [to commit a
    battery in the course of a legally justified arrest] is lost”).
    Because the district court erroneously concluded that Officer Gill’s use of force
    was reasonable, the court did not address fully the question of immunity under Maryland
    law. “[M]indful that we are a court of review, not of first view,” Lovelace v. Lee, 
    472 F.3d 174
    , 203 (4th Cir. 2006) (citation omitted), we remand these state-law claims
    against Officer Gill for the district court to consider “in the first instance” whether
    Officer Gill is entitled to immunity under Maryland law, Jennings v. University of North
    Carolina, 
    482 F.3d 686
    , 702 (4th Cir. 2007).
    19
    IV.
    For these reasons, we affirm the district court’s award of summary judgment to
    Officer Gill on the Section 1983 claim of excessive force and the common law claim of
    intentional infliction of emotional distress. We also affirm the court’s award of summary
    judgment to the County on the respondeat superior claim. We vacate the portion of the
    district court’s order granting summary judgment to Officer Gill on the remaining state-
    law claims, and remand those claims for further proceedings consistent with this opinion.
    AFFIRMED IN PART;
    VACATED IN PART;
    AND REMANDED
    20
    

Document Info

Docket Number: 17-1856

Citation Numbers: 893 F.3d 213

Filed Date: 6/18/2018

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (27)

major-maurice-anderson-v-david-russell-and-john-doe-officer-david , 247 F.3d 125 ( 2001 )

gary-sigman-individually-and-as-administrator-of-the-estate-of-mark , 161 F.3d 782 ( 1998 )

robert-clem-v-s-corbeau-and-county-of-fairfax-virginia-j-thomas , 284 F.3d 543 ( 2002 )

Johnny Gray v. Detective Spillman Detective Bishop ... , 925 F.2d 90 ( 1991 )

Norman Slattery v. Christopher Rizzo , 939 F.2d 213 ( 1991 )

Ray Communications, Inc. v. Clear Channel Communications, ... , 673 F.3d 294 ( 2012 )

Estate of Escobedo v. Bender , 600 F.3d 770 ( 2010 )

william-torchinsky-sylvia-torchinsky-v-siwinski-individually-and-as , 942 F.2d 257 ( 1991 )

Leroy A. Lovelace v. Jack Lee Gene Shinault K. Lester , 472 F.3d 174 ( 2006 )

melissa-jennings-and-debbie-keller-v-university-of-north-carolina-at , 482 F.3d 686 ( 2007 )

Henry v. Purnell , 652 F.3d 524 ( 2011 )

Barbre v. Pope , 402 Md. 157 ( 2007 )

charles-h-wilson-geraldine-e-wilson-raquel-wilson-next-friendmother-of , 141 F.3d 111 ( 1998 )

daniel-g-buonocore-v-donald-l-harris-special-agent-bureau-of-alcohol , 65 F.3d 347 ( 1995 )

French v. Hines , 182 Md. App. 201 ( 2008 )

Richardson v. McGriff , 361 Md. 437 ( 2000 )

Okwa v. Harper , 360 Md. 161 ( 2000 )

Harlow v. Fitzgerald , 102 S. Ct. 2727 ( 1982 )

Tennessee v. Garner , 105 S. Ct. 1694 ( 1985 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

View All Authorities »