Jotaynun Lee v. Todd Bevington , 647 F. App'x 275 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1384
JOTAYNUN LEE, Individually, and on behalf of himself and
the minor children of Jataynun Trayvon Fleming, Deceased,
and as Administrator of the Estate of Jataynun Trayvon
Fleming, Deceased,
Plaintiff - Appellant,
v.
TODD JAMES BEVINGTON,
Defendant - Appellee,
and
CITY OF RICHMOND, VIRGINIA; WESLEY E. MOORE; JOHN DOE, Nos.
1-20, being members of the Richmond Police Department SWAT
Team who responded to, and shot at the decedent at 304
Beaufort Hill Drive, Richmond, VA 23225; JOHN DOE, Nos. 11-
20, being United States Marshals Service members who were
part of the response team that shot at decedent,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:12-cv-00471-REP)
Argued: March 22, 2016 Decided: May 5, 2016
Before NIEMEYER and MOTZ, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Cogburn wrote the
opinion, in which Judge Niemeyer and Judge Motz joined.
ARGUED: Kenechukwu C. Okoli, LAW OFFICES OF K.C. OKOLI, P.C.,
New York, New York, for Appellant. Donald Cameron Beck, Jr.,
MORRIS & MORRIS, P.C., Richmond, Virginia, for Appellee. ON
BRIEF: John B. Mann, JOHN B. MANN, P.C., Richmond, Virginia, for
Appellant. Antoinette Morgan Walker, MORRIS & MORRIS, P.C.,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
COGBURN, District Judge:
The Estate of Jataynun Trayvon Fleming (“Appellant” when
referring to the estate, or “Fleming” when referring to the
decedent) appeals an order of the district court granting
summary judgment to Detective Todd James Bevington (“Bevington”
or “Appellee”) in this 42 U.S.C. § 1983 excessive force action.
The district court determined that Bevington did not violate
Fleming’s Fourth Amendment rights when he used deadly force in
seizing Fleming, and alternatively found that Bevington was
entitled to summary judgment on his asserted qualified immunity
defense. We affirm.
I.
We review a district court’s grant of summary judgment de
novo. Estate of Armstrong ex rel. Armstrong v. Vill. of
Pinehurst, 810 F.3d 892, 895 (4th Cir. 2016). Summary judgment
shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual
dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit under
governing law. Id. When ruling on a summary judgment motion, a
court must view the evidence and any inferences from the
3
evidence in the light most favorable to the nonmoving party.
F.D.I.C. v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). “Where
the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue
for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). In the end, the question posed by a
summary judgment motion is whether the evidence “is so one-sided
that one party must prevail as a matter of law.” Anderson, 477
U.S. at 252.
“Because this is a deadly force case, ‘the witness most
likely to contradict [the officers'] story—the person shot dead—
is unable to testify.’” Ingle ex rel. Estate of Ingle v. Yelton,
439 F.3d 191, 195 (4th Cir. 2006) (quoting Scott v. Henrich, 39
F.3d 912, 915 (9th Cir. 1994)). In such situations, “a court
must undertake a fairly critical assessment of the forensic
evidence, the officer's original reports or statements and the
opinions of experts to decide whether the officer's testimony
could reasonably be rejected at a trial,” instead of merely
accepting a potentially self-serving version of events relayed
by the officers. Id. (citations omitted).
II.
A.
On July 14, 2010, officers of the Richmond Police
Department (“RPD”) arrived at Fleming’s family home in Richmond,
4
Virginia, to execute a warrant for Fleming’s arrest on charges
of robbery and use of a firearm in the commission of a felony.
Fleming was also suspected of being involved in a homicide and
home invasion committed earlier that day. When police entered
the residence, Fleming retreated and barricaded himself in an
upstairs bathroom. Officers present on the scene reported that
Fleming refused to exit the bathroom and repeatedly threatened
to shoot the police officers.
After that initial interaction, the RPD officers dispatched
a SWAT team to the residence; Bevington was a member of that
SWAT team. The commander of the SWAT team, Lieutenant Mauricio
Tovar (“Tovar”), communicated to the SWAT officers, including
Bevington, the threats that Fleming had made to the RPD
officers. Tovar also showed the SWAT officers Fleming’s “wanted
poster,” which described Fleming as “armed and dangerous” and
advised that he “[would] not go quietly.” J.A. 357. The poster
also included Tovar’s handwritten notes describing
communications he had received from RPD officers investigating
the homicide. Those notes indicated that Fleming was possibly
armed with a handgun and had made statements that he “will
shoot” and was “not going down without a fight.” J.A. 354. When
Fleming’s father, Jotaynun Lee (“Lee”), arrived at the residence
and spoke with officers on the scene, he told the officers that
Fleming did not have a gun.
5
After Tovar briefed Bevington and the other SWAT team
members on the foregoing information, the SWAT team members
staged themselves in a spare bedroom across the hall from the
master bedroom, which connected with the bathroom where Fleming
remained barricaded. Police negotiators deployed a “throw phone”
into the bathroom, which allowed for audio communication between
Fleming and negotiation officers, as well as video surveillance
of the scene in the bathroom. The negotiation team informed
Tovar that based on the video surveillance relayed through the
throw phone, Fleming appeared to have a gun tucked into his
waistband. Tovar communicated this fact to Bevington and other
SWAT team members in the staging area. The negotiation team,
using the throw phone, attempted to convince Fleming to
peacefully surrender for several hours. In addition, throughout
the course of the negotiations, Bevington repeatedly instructed
Fleming on how to surrender, telling him to come out of the
bathroom with his hands up.
While barricaded, Fleming communicated with police
negotiators and members of the SWAT team, telling them he wanted
to speak to his father and that he wanted a cigarette. At one
point during the standoff, negotiators informed the SWAT team
members that Fleming had asked what the SWAT officers would do
if he “came out with his junk.” J.A. 355, 365. SWAT officers,
including Bevington, heard Fleming repeat this question from the
6
bathroom, yelling at the SWAT team, “What are you-all going to
do when I come out with my junk? What are you going to do when I
come out with my shit? You-all better get ready to kill me,” and
“you-all are going to have to shoot it out with me.” J.A. 365,
751-52, 795. Officers interpreted “junk” to be a slang word for
“gun” or “weapon.”
After several hours, Fleming stopped responding to
communications from the negotiators and began breathing heavily.
Based on communications with the negotiators, Tovar determined
that Fleming was preparing to exit the bathroom in a violent
manner. Tovar then decided to fire tear gas into the master
bathroom from outside the house in order to force Fleming to
exit and surrender. In preparation for the tear gas deployment,
Bevington and the other SWAT team members put on gas masks.
At the time the gas was deployed, Officer Wesley Moore
(“Moore”) was the first officer in the single-file SWAT line,
kneeling and holding a ballistic shield. Bevington was stationed
as the second officer in the team, standing directly behind
Moore and providing “cover to a lethal threat.” J.A. 368. Moore
was positioned in the doorway of the spare bedroom; Bevington
was leaning over the top of Moore, holding a rifle. The SWAT
team members in line behind Moore and Bevington were also
carrying rifles and service pistols; one carried a Taser to
7
deploy if necessary. The last two officers in line were part of
the “arrest team” responsible for handcuffing Fleming.
Soon after the tear gas canisters were launched into the
bathroom where Fleming was barricaded, Fleming exited the master
bathroom, 1 moved into the master bedroom, and advanced toward the
officers, who were waiting approximately 13 feet away in the
threshold of the door to the spare bedroom across the hall.
Moore and Bevington both testified that when Fleming exited
the master bathroom, his hands were outstretched toward the SWAT
team. They both testified that Fleming was holding a black
cylindrical object wrapped in some sort of cloth, and that they
perceived this object as a gun. What Moore and Bevington thought
was a gun was later determined to be a woman’s high-heeled shoe
wrapped in a t-shirt. As Fleming came toward the officers, Moore
fired a single shot at him. Moore later testified that he shot
because he feared for his life and thought that Fleming was
going to shoot him or another member of the SWAT team.
Bevington testified that as Fleming came out of the
bathroom and moved toward the officers, Moore shifted upwards a
1 Appellant argues that a dispute of material fact exists as
to how much time elapsed between the tear gas being thrown into
the bathroom and Fleming running out of the bathroom. Moore
stated at his deposition that only seconds elapsed; Sergeant
Charles Hayes (another SWAT member) estimated that it took
between three and seven minutes. Though disputed, this fact is
not material to resolution of the excessive force question
before us.
8
few inches, knocking Bevington’s gun slightly. Bevington
believed that the shot fired by Moore had come from Fleming.
Bevington testified that after the first shot was fired, Fleming
was still coming toward the officers with his hands straight out
in front of him, holding what appeared to be a weapon. Bevington
then fired several shots at Fleming. 2 Bevington testified that
after he fired the first round of shots, Fleming fell to the
ground but was still pointing his “weapon” at the officers and
attempting to get back up as the officers approached. Moore also
testified that after Fleming fell to the ground, he was still
holding what appeared to be a weapon and was pointing it toward
the officers. Bevington continued to fire until Fleming rolled
over and Bevington could no longer see Fleming’s hands.
Bevington stated that the time between the first and second
round of shots he fired was “less than seconds.” J.A. 382. Moore
and Bevington fired a total of nine rounds at Fleming, who was
struck multiple times in his hands, arms, torso, and chest.
2
Appellant argues that a genuine dispute of material fact
exists as to Bevington’s locations when Fleming exited the
bathroom and when he was shot seconds later. The district court
properly concluded that though a factual dispute existed as to
Bevington’s precise location at those times, resolution of those
disputed facts was immaterial to the excessive force analysis.
See Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 539-40
(E.D. Va. 2015) (“Whether Bevington was removed from Fleming by
thirteen feet or ten feet or five feet makes no difference to
the circumstances confronting the SWAT unit and Bevington as
Fleming exited the bathroom and advanced toward the unit.”).
9
When the shooting ceased, the two arresting officers
handcuffed Fleming, removed him from the scene, and placed him
in a waiting ambulance. 3 After being transported to a hospital,
Fleming was pronounced dead within 30 minutes. Upon inspecting
the scene after the shooting, officers did not find a gun.
Photographs of the scene reveal a woman's high-heeled shoe and a
blood-stained, light-colored t-shirt on the floor of the master
bedroom.
Appellant argues that a genuine issue of material fact
exists as to Fleming’s location and positioning at the time he
was shot. Appellant notes that during his interview three days
after the shooting, Bevington told investigators he shot Fleming
with a second round while Fleming was still on the ground and
trying to get up, describing it as: “he’s kind of laying toward
us and he has this item in his hand still…what I believe was a
gun and he tries to get up again.” J.A. 553. Years later, at his
deposition, he testified that he shot Fleming again while he was
3Appellant argues that a disputed issue of material fact
exists as to who handcuffed Fleming after he was shot based on
statements made by Lieutenant Stephen McQuail after the shooting
and a declaration that he later signed in April 2013. See J.A.
1255; 1253 (explaining that multiple officers assisted in
placing handcuffs on Fleming). In addition to finding no genuine
factual dispute between the officer’s statements, the issue of
who handcuffed Fleming after the shooting is irrelevant to the
inquiry before us.
10
on the ground, trying to get up, but still pointing what
Bevington thought to be a weapon at the officers.
Moore testified that after he fired his shot, Fleming fell
to the ground within a matter of seconds, and as Moore moved
toward him, Fleming “was on his back kind of sitting up a little
bit, and he had at least one hand pointed up, [and] I could see
the weapon in his hand at that time.” J.A. 786. When questioned
as to whether he heard gunfire other than his own before Fleming
fell to the ground, Moore testified, “when he was coming towards
me, I fired the one round. That’s all I heard. As we moved up,
that’s when I heard more gunshots. At that point…[h]e was kind
of up, probably kind of leaning up…[h]e was laying down sideways
with his weapon pointed up.” J.A. 789. Moore reiterated that
though Fleming was on the ground, he was still pointing what he
believed to be a weapon at the SWAT team. At that point, Moore
heard the shots that Bevington fired at Fleming.
To the extent that this testimony constitutes a factual
discrepancy, we do not find it material to resolution of the
matter at hand. Both Moore and Bevington testified that Fleming
was attempting to get up, and either still had the “weapon” in
his hand, or was actively pointing it at the officers, after
Bevington fired the first volley of shots. As the district court
properly found:
11
The second volley was fired a split-second after the
first one, and, of course, Bevington, when he fired
that volley, was informed by all the previously
recounted facts just as he was when he fired the first
volley. In addition, Bevington, as did Moore, saw
that, although Fleming was down and wounded, he also
was trying to get up and, in the process, he was still
pointing at the police officers what was reasonably
thought to be a gun. And, Bevington knew that the man
pointing what he reasonably thought was a gun had
threatened to kill the police officers. He then made a
split-second reaction to fire the second volley at a
man who was a threat to him and other officers and who
was still resisting arrest. On the record here,
whether Fleming was on the floor, or not, is not
material to the determination whether…Bevington acted
reasonably to the presented risk when firing the
second volley.
Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 540 (E.D. Va.
2015).
As to the other alleged genuine issues of material fact
raised by Appellant, addressed supra, we find that they are not
truly disputed factual discrepancies, not material to resolution
of the question before us, or merely facts that Appellant
attempts to discredit in favor of his speculative version of
events. As this court has previously noted,
In cases where officers are hurriedly called to the
scene of a disturbance, the reasonableness of their
response must be gauged against the reasonableness of
their perceptions, not against what may later be found
to have actually taken place. It will nearly always be
the case that witnesses to a crime differ over what
occurred. That inevitable confusion, however, need not
signify a difference of triable fact. What matters is
whether the officers acted reasonably upon the reports
available to them and whether they undertook an
objectively reasonable investigation with respect to
12
that information in light of the exigent circumstances
they faced.
Gooden v. Howard Cty., Md., 954 F.2d 960, 965 (4th Cir. 1992).
We find that none of the factual disputes raised by Appellant
are triable issues that would ultimately affect the outcome of
this case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Appellant also contends that two inferences should have
been drawn in his favor at the summary judgment stage. First,
based on the fact that Fleming emerged from a bathroom full of
tear gas, Appellant asks the court to infer that Fleming’s eyes
were stinging and closed in response to the gas, and thus, that
he must not have been able to see where he was going. Second,
Appellant contends that the court should have inferred from the
testimony of the officers, some of whom did not report to the
investigators immediately after the shooting that they saw a
shoe or cloth near Fleming, that the shoe and cloth were planted
by one or more officers after the shooting but before the police
crime scene unit took photographs of the scene. We find such
inferences to be unsupported by the record and based wholly on
speculation. While the court is cognizant of the fact that there
is no testimony in this case from the one person who could have
potentially contradicted the testimony of the officers—the
decedent—there is simply no evidence in the record that would
13
allow us to make such inferences. Appellant’s assertions
essentially amount to a request for the court to doubt the
testimony in this case and rely instead on unfounded conjecture.
This we will not do. See Local Union 7107 v. Clinchfield Coal
Co., 124 F.3d 639, 640 (4th Cir. 1997) (“Fanciful inferences and
bald speculations of the sort no rational trier of fact would
draw or engage in at trial need not be drawn or engaged in at
summary judgment.”).
B.
Lee, in his capacity as the Administrator of Fleming’s
Estate, brought this § 1983 action in the Eastern District of
Virginia, alleging that Bevington’s actions constituted an
unlawful seizure of Fleming's person under the Fourth Amendment. 4
The district court granted Bevington’s Motion for Summary
4 Appellant’s Amended Complaint asserted three counts
against Bevington and other officers. In addition to the Fourth
Amendment excessive force claim asserted in Count I, Count II
alleged that Bevington violated Lee's and Fleming's children’s
substantive due process rights by depriving them of their
liberty interest “in the companionship, care, custody, and
management” of Fleming. Count III alleged that Bevington caused
Fleming “to suffer great pain, suffering and anguish” during the
July 14, 2010 standoff and subsequent shooting. On March 27,
2013, the district court dismissed, pursuant to Fed. R. Civ. P.
12(b)(6), Counts II and III of the Amended Complaint, as well as
Count I to the extent that it alleged claims on behalf of Lee
individually and Fleming's minor children. Appellant’s argument
on appeal challenges only the district court’s disposition of
Count I on summary judgment, thus making the excessive force
claim and related qualified immunity question the only issues
before us on appeal.
14
Judgment on March 18, 2015, finding that Bevington was entitled
to summary judgment on the merits of Appellant’s excessive force
claim and, accordingly, entitled to summary judgment on the
basis of qualified immunity. This appeal followed.
III.
A.
“Qualified immunity protects officers who commit
constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). “Officials will receive immunity unless the §
1983 claim satisfies a two-prong test: (1) the allegations, if
true, substantiate a violation of a federal statutory or
constitutional right and (2) the right was clearly established
such that a reasonable person would have known his acts or
omissions violated that right.” Brockington v. Boykins, 637 F.3d
503, 506 (4th Cir. 2011) (citation and internal quotation marks
omitted). The court may address these questions in either order,
but Appellant’s case will survive summary judgment “only if we
answer both questions in the affirmative.” Estate of Armstrong
ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 (4th
Cir. 2016) (citing Pearson v. Callahan, 555 U.S. 223, 232
(2009)). Here, considering the facts in the light most favorable
to Appellant, Bevington’s conduct did not violate Fleming’s
15
constitutional rights and our inquiry thus ceases after
resolving the first prong.
B.
Appellant alleges that Bevington violated Fleming’s Fourth
Amendment right to be free from unreasonable seizures—a right
that extends to seizures accomplished by excessive force. See
Graham v. Connor, 490 U.S. 386, 394 (U.S. 1989). “A claim that a
police officer employed excessive force is analyzed under the
Fourth Amendment under an ‘objective reasonableness’ standard.”
Smith v. Ray, 781 F.3d 95, 100-01 (4th Cir. 2015) (quoting
Henry, 652 F.3d at 531). Excessive force does not arise if an
officer’s actions “are ‘objectively reasonable’ in light of the
facts and circumstances confronting [him], without regard to
[his] underlying intent or motivation.” Id. (quoting Graham, 490
U.S. at 397). “The test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application…[but] 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.” Armstrong, 810 F.3d at 899 (internal citations and
quotation marks omitted). Three factors guide us in this
balancing: 1) the severity of the crime at issue; 2) the extent
to which the suspect poses an immediate threat to the safety of
the officers or others; and 3) whether the suspect is actively
16
resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396. “Ultimately, the question to be decided
is ‘whether the totality of the circumstances justifie[s] a
particular sort of ... seizure.’” Smith, 781 F.3d at 101
(quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). This
court has previously noted that, as opposed to considering an
officer’s actions piecemeal in a “segmented sequence of events,”
“[t]he better way to assess 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.”
Id. at 101-02 (quoting Rowland v. Perry, 41 F.3d 167, 173 (4th
Cir. 1994)). In addition, our determination of reasonableness
must account “for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.” Graham, 490 U.S. at
396-97. As the district court noted,
No citizen can fairly expect to draw a gun on police
without risking tragic consequences. And no court can
expect any human being to remain passive in the face
of an active threat on his or her life…the Fourth
Amendment does not require omniscience. Before
employing deadly force, police must have sound reason
to believe that the suspect poses a serious threat to
their safety or the safety of others. Officers need
not be absolutely sure, however, of the nature of the
threat or the suspect's intent to cause them harm—the
Constitution does not require that certitude precede
the act of self protection.
17
Lee v. City of Richmond, Va., 100 F. Supp. 3d 528, 542 (E.D. Va.
2015) (quoting Elliott v. Leavitt, 99 F.3d 640, 644 (4th Cir.
1996)).
Upon de novo review, we find that the totality of the
circumstances here justifies the seizure that took place. As to
the first Graham factor, the crime at issue was severe. Officers
were attempting to arrest Fleming for his alleged involvement in
a robbery accomplished by use of a firearm. The officers were
also aware that Fleming was a suspect in a homicide committed
earlier that day. The fact that Fleming was accused of
committing such violent crimes weighs against Appellant.
As to the second Graham factor, the uncontroverted
testimony indicates that the officers reasonably believed that
Fleming posed an immediate threat to their safety. In addition
to being aware of the fact that Fleming was wanted for violent
crimes, the officers had been briefed on information from RPD
indicating that Fleming was likely armed. They also received
reports from the negotiation team that video surveillance
revealed what appeared to be a weapon tucked into Fleming’s
waistband. Moreover, Fleming made overt threats to the SWAT team
officers on the scene implying that he was armed. Once he
emerged from the bathroom holding what appeared to be a weapon
pointed at the officers, there existed a reasonable perception
that Fleming posed an immediate risk to their safety. While it
18
was later determined that Fleming was not armed, he
intentionally created the perception that he was. Fleming
continued to point the apparent weapon at the officers even
after Moore and Bevington fired their initial shots. These
undisputed facts indicate that Bevington could reasonably have
determined that Fleming posed a threat to his safety, as well as
that of his fellow officers, over the course of the rapidly
evolving and uncertain scenario that unraveled once Fleming came
out of the bathroom.
The third factor—whether Fleming was actively resisting
arrest—is also not favorable to Appellant. Fleming had been
actively resisting arrest for several hours at the time he was
shot. He chose to emerge from the bathroom creating the
impression that he was capable of, and intent on, shooting the
arresting officers instead of complying with their commands to
peacefully surrender.
In sum, the totality of circumstances here is that Fleming
was actively resisting arrest for violent felony charges,
threatened and taunted the police with suggestions that they
should be prepared to kill him, made statements directly to the
officers implying that he was armed, and came out of the
bathroom after a multiple-hour standoff with his hands
outstretched toward the officers, pointing what appeared to be a
weapon at them. The district court properly concluded that
19
considering the factual circumstances as a whole, “[n]o jury
instructed on the applicable law could conclude that Bevington
acted unreasonably in firing either the first or second volley”
of shots. Lee, 100 F. Supp. 3d at 541. While the loss of life
that occurred in the course of Fleming’s attempted arrest is
undeniably heartrending, the totality of circumstances here
clearly justifies the actions by law enforcement that took
place.
IV.
We have also considered Appellant’s arguments about experts
and find them to be either waived or abandoned. The “Statement
of Issues” section of Appellant’s brief raises as an issue for
consideration on appeal whether the district court properly
precluded the expert testimony of Dr. Kenneth Okafor. Appellant
also stated in the “Summary of Argument” section of his brief
that the district court improperly excluded such testimony.
However, Appellant never addresses the issue further in his
opening or reply brief, and made no mention of this issue at
oral argument. An appellate brief “must contain appellant's
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies....” Fed. R. App. P. 28(a)(8). To that effect, the failure
to raise or discuss an issue in an appellate brief renders that
issue abandoned. See Mayfield v. Nat'l Ass'n for Stock Car Auto
20
Racing, Inc., 674 F.3d 369, 376-77 (4th Cir. 2012). Because
Appellant has failed to substantively argue the issue to the
court, cite legal authority, or point out any particular part of
the record relevant to his assertion regarding Dr. Okafor’s
testimony, we deem this issue abandoned.
In addition, though Appellant did not articulate in the
“Statement of Issues” section of his brief any appellate issue
related to Appellee’s expert Matthew Nordel, he asserted in his
“Summary of Argument” section that the district court erred by
making a credibility determination as to this expert. We first
note that the district court nowhere cited any testimony or
opinion from Mr. Nordel in the decision now before us on appeal,
and Appellant has failed to articulate where in the record the
district court made any finding or reference related to him. It
is thus unclear that the district court made a credibility
determination as to this expert as Appellant claims. It is also
unclear how any such determination could have affected the
district court’s decision on summary judgment. Moreover,
Appellant has failed to cite any legal authority in support of
his position on this issue. Thus, we need not consider this
argument because it fails to comply with Fed. R. App. P.
28(a)(8). Even if the issue were properly before us, however, to
the extent Appellant challenges Mr. Nordel’s expert opinions as
to the trajectories of bullets fired at Fleming, any facts
21
related to the distance and angle from which the bullets were
fired would have no material impact on our analysis of the
alleged constitutional violation at hand in light of the rest of
the uncontroverted evidence discussed herein, even if such facts
had been accepted by the district court.
V.
Because Bevington’s actions did not constitute an unlawful
seizure in violation of Fleming’s Fourth Amendment rights, we
affirm the district court’s decision granting Bevington’s
summary judgment motion.
AFFIRMED
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