Jones v. Mullins Police Department , 355 F. App'x 742 ( 2009 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-6256
    JAMES ERICK JONES,
    Plaintiff - Appellant,
    v.
    MULLINS POLICE DEPARTMENT; OFFICER BAILEY,
    Defendants - Appellees.
    Appeal from the United States District Court for the District of
    South Carolina, at Beaufort. Joseph F. Anderson, Jr., District
    Judge. (9:07-cv-00497-JFA)
    Argued:   October 28, 2009                 Decided:   December 10, 2009
    Before WILKINSON and NIEMEYER, Circuit Judges, and Anthony J.
    TRENGA, United States District Judge for the Eastern District of
    Virginia, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
    LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
    Appellant. Mason Abram Summers, RICHARDSON, PLOWDEN & ROBINSON,
    PA, Columbia, South Carolina, for Appellees. ON BRIEF: Seth M.
    Jessee, Third Year Law Student, John F. Anderson, Third Year Law
    Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate
    Litigation Clinic, Charlottesville, Virginia, for Appellant.
    Douglas C. Baxter, RICHARDSON, PLOWDEN & ROBINSON, PA, Columbia,
    South Carolina, for Appellees.
    Unpublished opinions are not binding precedent in this circuit.
    2
    PER CURIAM:
    Appellant James Erick Jones (“Jones”) filed a claim under
    
    42 U.S.C. § 1983
        against      Officer       Larry    Bailey    (“Bailey”),     a
    police officer in the Mullins, South Carolina Police Department
    (the       “Department”),      and       also   against     the     Department       itself.
    Jones alleges that Bailey used excessive force in violation of
    the Fourth Amendment in connection with his arrest on November
    1, 2006 and that the Department is also liable for that use of
    excessive      force      based     on    its   hiring     of    Bailey.    The      District
    Court entered summary judgment against Jones on both of these
    claims, and Jones has appealed from that ruling. We affirm.
    I.
    As set forth in his verified complaint, 1 Jones alleges that
    on     November      1,     2006,    at     approximately          2:30    a.m., 2     Bailey
    “maliciously,         recklessly          and        unlawfully”     tailgated        Jones’
    vehicle       with    his    police       cruiser’s       high     beams     on,      thereby
    “concealing his identity” for approximately one half mile as
    1
    The District Court’s record for the purposes of appellees’
    motion for summary judgment consists of Jones’ verified
    complaint, Bailey’s affidavit, and Jones’ subsequently filed
    affidavit.
    2
    In a subsequently filed unverified “Correction in
    Evidence,” Jones states that the encounter occurred at 12:30
    a.m.
    3
    Jones drove to “a secluded area.” JA at 8. Feeling “endangered,”
    Jones “proceed[ed] to flee wrecking [his] vehicle.” 
    Id.
     Bailey
    then rammed his vehicle into the rear driver’s side of Jones’
    vehicle. Jones continues:
    Upon apprehending me (James Jones) and rendering me
    unarmed, Officer Larry Bailey then did unjustly and
    without cause pull his firearm and shot me (James
    Jones) once in the left side adominal[sic] area at
    close range. Officer Larry Bailey then did shove me
    (James Jones) into the driver[’s] side door of his
    vehicle[,] point his firearm a second time in the
    upper area of the left side of my face, firing a
    second shot. Which I (James Jones) avoid because upon
    noticing Officer Larry Bailey[’s] intentions and Gods
    Mercy I grab and pushed the weapon away and began to
    struggle with Officer Bailey in fear of my life.
    JA at 8-9. Jones also alleges that “there is probable cause to
    believe that the Mullins Police Department did knowingly employ
    Officer Bailey whom had a tarnished and unsatisfactory record.”
    
    Id.
    In   response   to   the   verified   complaint,   Bailey   and   the
    Department filed a motion for summary judgment. In an affidavit
    filed in support of that summary judgment motion, Bailey gives
    the following account of his encounter with Jones. On November
    11, 2006, 3 while on patrol, Bailey noticed a vehicle recklessly
    3
    The conflict in the stated dates of Jones’ arrest
    (November 1 compared to November 11, 2006) is not addressed in
    the record, either in the District Court or this Court.
    Nevertheless, this conflict is not a material one for the
    purposes of the District Court’s summary judgment ruling that is
    before us for review.
    4
    traveling in excess of the posted speed. After he activated his
    patrol    car’s    blue     lights,       the      vehicle    failed   to    stop,
    accelerated for a distance, and then suddenly slammed on its
    brakes, causing the vehicles to collide. Jones then exited this
    vehicle and attacked Bailey, causing both to fall to the ground.
    While on the ground, Jones grabbed Bailey from behind, placed a
    weapon to the side of his head, and told Bailey that if he
    moved, Jones would kill him. Bailey was able to unholster his
    weapon with his right hand and reach across his body to fire his
    weapon from behind and to his left side, hitting Jones in the
    stomach. At the time he fired his weapon, “[Bailey] feared for
    his life,” believing that Jones was going to kill him and “that
    his actions were reasonable under the circumstances.” JA at 23.
    In response to Bailey’s affidavit, Jones filed an affidavit
    in   which   he   repeats   much     of    his     original   account, 4    without
    disputing    the    core     facts        stated     in   Bailey’s     affidavit.
    Specifically in this regard, Jones does not dispute, as Bailey
    affirmed, that the blue lights on Bailey’s police cruiser had
    been activated during the encounter or that, during the struggle
    4
    There appears to be some non-material differences in
    Jones’ description of events as between the verified complaint
    and Jones’ supplemental affidavit. In Jones’ affidavit, Jones
    attributes the damage to his car entirely to the collision that
    occurred when Bailey rammed him, while in the verified
    complaint, the “wrecking” of the car is described within the
    context of Jones’ attempt to flee from Bailey.
    5
    leading up to the shooting, Jones grabbed Bailey from behind,
    placed a gun to Bailey’s head, and threatened to kill Bailey if
    he moved. Moreover, Jones does not dispute, and his own version
    of the facts is not inconsistent with, Bailey’s description of
    how he and Jones were positioned relative to each other when
    Bailey discharged his gun. While Jones states that Bailey shot
    him after he “was rendered unarmed,” he does not claim that
    Bailey knew he had been “rendered unarmed” when Bailey shot him
    during the struggle. Jones also does not claim that Bailey knew,
    or even that he should have known, that at some point during the
    continuous struggle that ensued from the moment Jones exited his
    vehicle up until the gunshot to Jones’ abdomen, Jones no longer
    presented a threat to Bailey.
    II.
    The motion for summary judgment was initially considered by
    the Magistrate Judge who, on January 3, 2008, issued his Report
    and    Recommendation,     recommending       that      Bailey’s     and     the
    Department’s   motion    for   summary     judgment   be    granted.   In    his
    Report   and   Recommendation,    the      Magistrate      Judge   found    that
    Bailey’s use of force was objectively reasonable in light of the
    circumstances at the time and that Jones’ constitutional rights
    were   therefore   not   violated.    He   also   found     that   Bailey   was
    entitled to qualified immunity, that the Department could not be
    6
    liable under the theory of respondeat superior, and that Jones
    had not come forward with any evidence to otherwise establish
    liability on the part of the Department.
    Jones       timely      filed       objections       to      the     Report        and
    Recommendation and the District Court reviewed the motion for
    summary   judgment      de   novo    pursuant     to     
    28 U.S.C. § 636
    (b)(1).
    Based    on     that   review,    the     District       Court    overruled        Jones’
    objections, adopted the recommendations set forth in the Report
    and Recommendation, and granted Bailey’s and the Department’s
    motion    for    summary     judgment.     We     review      a   grant       of   summary
    judgment de novo, viewing the facts in the light most favorable
    to   plaintiff,        the    non-prevailing         party.       See         Holland   v.
    Washington Homes, Inc., 
    487 F.3d 208
    , 213 (4th Cir. 2007).
    III.
    A.
    Section 1983, by its own terms, prohibits constitutional
    violations under color of state law. In this case, Jones claims
    that his constitutional rights under the Fourth Amendment were
    violated when Bailey used excessive force. In order to survive a
    motion for summary judgment, Jones was required to present facts
    sufficient to allow a reasonable fact finder to conclude that
    Bailey    used    excessive      force    under    the    circumstances.           Celotex
    Corp. v. Catrett, 
    477 U.S. 317
    , 325 (1986) (explaining that a
    7
    non-moving     party       must     come    forward         with    facts    sufficient         to
    establish      a    genuine       issue     of       material      fact   for     trial).       In
    assessing claims of excessive force under the Fourth Amendment,
    the Court must apply a “reasonableness standard.” See Graham v.
    Connor, 
    490 U.S. 386
    , 395 (1989). This standard of review is an
    objective      one,     and       the    question       is    whether       an    objectively
    reasonable         officer       under    the    same       circumstances         would       have
    concluded that a threat existed to justify the particular use of
    force. Anderson v. Russell, 
    247 F.3d 125
    , 129 (4th Cir. 2001).
    To determine the reasonableness of a particular use of force, it
    is   important       for     a   court     to    assess      the    situation       “from      the
    perspective of a reasonable officer on the scene, rather than
    with the 20/20 vision of hindsight.” Graham, 
    490 U.S. at
    396-
    397. A police officer may use lethal force if the police officer
    has “probable cause to believe that the suspect poses a threat
    of   serious       physical      harm,     either      to    the    officer       or   others.”
    Tennessee v. Garner, 
    471 U.S. 1
    , 11 (1985).
    In   this      case,       Bailey     shot      Jones     during      what       both   men
    describe as a life and death struggle, during which Jones placed
    his own gun to Bailey’s head and threatened to kill him. Whether
    Bailey     acted       reasonably           must       be     assessed           under    these
    circumstances. See Elliot v. Leavitt, 
    99 F.3d 640
    , 642 (4th Cir.
    1996) (“The court’s focus should be on the circumstances at the
    moment force was used and on the fact that officers on the beat
    8
    are not often afforded the luxury of armchair reflection.”).
    Jones contends that he was “rendered unarmed” before Bailey shot
    him, but there is no contention that Bailey knew that Jones was
    disarmed and no longer constituted a threat when Bailey shot
    Jones. Indeed, within the context of the struggle that followed
    Jones’ exit from his vehicle with a gun, late at night, in a
    secluded       area,     the   facts,   as       described          by     Jones    himself,
    demonstrate that Bailey had a reasonable fear that Jones was
    armed and dangerous at the time he shot Jones. Even if Jones’
    description of the struggle were accepted as true, no reasonable
    jury     could    find     that     Bailey       was        not    under    a      reasonable
    apprehension of serious physical harm at the hands of Jones when
    he shot Jones. See Garner, 
    471 U.S. at 11
    .
    Jones     urges    us   to   place    the       struggle      and     the    shooting
    within the context of what Jones claims was Bailey’s initial use
    of excessive force in running Jones’ car off the road. Again,
    even accepting as true Jones’ account of the events leading up
    to the shooting, it remains uncontested that upon seeing Jones
    drive by, Bailey activated his police cruiser’s blue lights to
    signal Jones to pull over, and Jones not only failed to stop,
    but    also     attempted      to   flee.    Jones’         own    description        of   the
    encounter places Bailey’s police cruiser next to Jones’ vehicle
    before    the    two     vehicles    collided.         By    the    time    the    collision
    between the two vehicles occurred and Jones exited his vehicle,
    9
    it would have been obvious to any reasonable observer in Jones’
    situation that the other vehicle was a police cruiser and that
    Bailey was a uniformed police officer. For that reason, Bailey
    would    have       reasonably     thought         that    his        status       as    a   police
    officer was known to Jones and that Jones’ conduct could not be
    explained by anything other than an intention to harm him. In
    any event, whether or not Jones was under some misapprehension
    as to Bailey’s identity, the fact remains that Bailey needed to
    respond instantaneously to Jones’ imminent threats to kill him.
    Viewed    from      the   point    of    view      of     the    objectively            reasonable
    officer as required by Graham, Bailey was confronted by a man
    who emerged from his car with a firearm threatening to use it
    after attempting to flee a police cruiser with its blue lights
    flashing. The District Court correctly concluded that there were
    no genuine issues of material fact and Bailey was entitled to
    judgment as a matter of law on Jones’ Fourth Amendment claim
    under Section 1983.
    B.
    The    District    Court       was    also      correct        in    concluding        that
    Bailey        was   entitled      to    qualified         immunity          from    any      Fourth
    Amendment violation. When government officers are performing a
    discretionary         function,        they    are      entitled        to     a    defense     of
    qualified       immunity    unless       their       conduct      clearly          violates      an
    established         constitutional       right       that       the    officer          reasonably
    10
    would have known to exist. Harlow v. Fitzgerald, 
    457 U.S. 800
    (1983)(granting qualified immunity in the Section 1983 context).
    Whether    or     not     a   police     officer         is   entitled       to    qualified
    immunity is a question of law for the court, and when there are
    no relevant disputed material facts, a court should rule on the
    qualified       immunity       issue     at        the    summary      judgment       stage.
    Willingham v. Crooke, 
    412 F.3d 553
     (4th Cir. 2005) (“Ordinarily,
    the    question      of   qualified     immunity         should   be    decided      at   the
    summary judgment stage.”).
    In this case, as we have discussed above, Bailey did not
    violate Jones’ Fourth Amendment rights at all, much less violate
    a     clearly     established          right       that       Jones    had        under   the
    circumstances. No reasonable law enforcement officer would think
    that in the situation that Bailey found himself, he would not be
    entitled to protect himself from Jones’ threats of deadly force.
    IV.
    The District Court also dismissed Jones’ claim against the
    Department.       The     Court   must     therefore          determine       whether     the
    Department was entitled to judgment in its favor based on the
    absence of any genuine issues of material fact.
    The Court notes initially that there can be no municipal
    liability       in    the     absence     of       an     underlying      constitutional
    violation. Since the Court has found that Jones did not suffer
    11
    any constitutional violation, there is no basis for imposing
    liability on the Department. Nevertheless, the Court will review
    the District Court’s decision, which appears to have been issued
    on alternative grounds.
    Section 1983 does not limit its reach to individual state
    actors who violate plaintiffs’ constitutional rights; it also
    allows   claims      against   municipalities.      In     Monell   v.    Dept.   of
    Social    Servs.,      
    436 U.S. 658
        (1978),       the   Supreme     Court
    established that a municipality could only be held liable if it
    put into effect a policy or custom that caused a deprivation of
    federal rights. 
    Id. at 690-691
    . Here, Jones bases his                      Section
    1983   claim    against      the   Department     solely    on   its     hiring   of
    Bailey. While a        Section 1983 violation can be based on even a
    single hiring decision, Board of County Commissioners of Bryan
    County (Bryan) v. Brown, 
    520 U.S. 397
     (1967), Jones’ claim is
    viable   only   if    the    Department     was   “deliberately     indifferent”
    towards how its hiring decision could lead to a deprivation of
    federal rights. 
    Id. at 407
    . The standard is a high one. As the
    Supreme Court observed in Bryan:
    Only   where    adequate   scrutiny   of  an  applicant’s
    background would lead a reasonable policymaker to
    conclude that the plainly obvious consequence of the
    decision    to    hire   the  applicant   would   be   the
    deprivation of a third party’s federally protected
    right   can    the   official’s   failure  to   adequately
    scrutinize     the   applicant’s   background   constitute
    ‘deliberate indifference.’
    12
    
    Id. at 411
    .
    In       the    District        Court,    Jones     did      not     assert       liability
    against          the     Department       based       on   a        claim    of     “deliberate
    indifference.” Rather, he based his claim against the Department
    only       on    the     theory   of     respondeat        superior.        A     municipality,
    however,         is    not   liable      for    constitutional            deprivations        under
    Section         1983     based    on    the     doctrine       of    respondeat          superior.
    Monell, 
    436 U.S. at 691
     (1978)(“[A] municipality cannot be held
    liable          solely    because       it      employs    a     tortfeasor          .    .   .    a
    municipality           cannot     be    held     liable    under       Section       1983     on   a
    respondeat superior theory.”) (emphasis in original). For these
    reasons, the District Court’s dismissal of Jones’ claim against
    the Department must be affirmed. 5
    5
    On appeal, Jones does assert that the Department may be
    liable under the “deliberate indifference” standard articulated
    in Bryan. Jones did not raise this argument in the District
    Court, and he therefore forfeited it. See Beaudett v. City of
    Hampton, 
    775 F.2d 1274
    , 1278 (1985) (explaining that pro se
    litigants still need to raise arguments at the trial level in
    order to preserve those issues for appeal). Nevertheless, all
    that Jones alleges in connection with his claim against the
    Department is that Bailey had been reprimanded in the past while
    working for a different police department. That allegation is
    clearly insufficient to support a claim under either Monell, 
    436 U.S. at 691
    , or Bryan, 520 U.S. at 411.
    13
    V.
    The District Court correctly concluded that there were no
    genuine    issues    of    material   fact   and     that    Bailey   and     the
    Department were entitled to judgment in their favor as a matter
    of   law   on   Jones’     Section    1983   claim    that    he   suffered    a
    constitutional deprivation of his Fourth Amendment rights based
    on   the   alleged   use   of   excessive    force   and     the   Department’s
    hiring of Bailey. For these reasons, we affirm the judgment of
    the District Court.
    AFFIRMED
    14