Gerardo Ayala v. J. Wolfe, II , 546 F. App'x 197 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2157
GERARDO GRANADOS AYALA,
Plaintiff – Appellant,
v.
J. W. WOLFE, II; LEXINGTON POLICE DEPARTMENT,
Defendants – Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cv-00624-CCE-LPA)
Argued: September 18, 2013 Decided: November 13, 2013
Before DAVIS, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Davis and Judge Diaz joined.
Eugene Ernest Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Jack M. Strauch, STRAUCH
FITZGERALD & GREEN, PC, Winston-Salem, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
In the dark of night near the scene of an armed robbery,
Plaintiff Gerardo Granados Ayala disregarded a police officer’s
command to place his hands on the hood of a patrol car.
Instead, without saying a word, Ayala took one hand from the
hood, reached into the waistband of his pants, and removed a
gun. In response, the officer, Defendant J.W. Wolfe, II, shot
Ayala. Under the circumstances of this case, the district court
did not err in ruling that Wolfe’s application of deadly force
was not excessive, and that Ayala’s Section 1983 and related
claims must fail. Accordingly, we affirm the grant of summary
judgment in Defendants’ favor.
I.
In July 2010, at 1:45 a.m., Wolfe, an officer with the
Lexington, North Carolina Police Department, responded to a
report that three armed men had robbed a restaurant. The report
indicated that the men fled on foot. Wolfe canvassed the area
near the restaurant and saw Ayala walking just a few blocks
away. Wolfe stopped his patrol car and instructed Ayala to put
his hands on the hood of the patrol car. After Ayala complied
with the order, Wolfe frisked him. Upon feeling a gun in
Ayala’s waistband, Wolfe backed away from Ayala, moved behind
his patrol car, and drew his service weapon. Without saying a
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word to the officer, Ayala moved his right hand from the patrol
car to his waistband and removed the gun.
In response, Wolfe shot Ayala several times. The first
bullet hit Ayala’s right hand and knocked the gun to the ground.1
Wolfe nevertheless continued to shoot Ayala in the torso until
he fell. Ayala lost consciousness after hitting the ground and
does not remember any shots after he fell. But despite being
unconscious, Ayala “believe[s]” that Wolfe shot him in his back
while he lay on the ground and that that bullet paralyzed him
from the waist down. J.A. 204.
The scene of the shooting was, in Ayala’s words, “very
dark[.]” J.A. 77. Wolfe declared that the “very bright” flash
from his gun after he shot “further hindered” his ability to
see. J.A. 73. Wolfe did not know that Ayala dropped his gun
after the first shot, but stated that he immediately stopped
shooting once Ayala fell to the ground. Ayala testified that he
had no idea what Wolfe could (or could not) see after the first
shot, that he did not know whether his gun made a sound when it
fell to the ground, and that he did not tell Wolfe—or otherwise
1
In reviewing the district court’s summary judgment ruling,
“courts are required to view the facts and draw reasonable
inferences in the light most favorable to the party opposing the
[summary judgment] motion.” Scott v. Harris, 550 U.S. 372, 378
(2007) (alteration in original) (internal quotation marks
omitted). In qualified immunity cases, this requirement
“usually means adopting . . . the plaintiff’s version of the
facts.” Id.
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indicate to Wolfe—that he no longer held the gun. Two witnesses
declared that they heard a series of gunshots in the middle of
the night, a pause of four or five seconds, and then an
additional gunshot. In Ayala’s words, the time between Wolfe’s
shots was “really fast.” J.A. 88-89.
In August 2011, Ayala filed this lawsuit against Wolfe in
his individual capacity and against the Lexington Police
Department, alleging Section 1983 claims and several state law
claims.2 After the close of discovery and upon learning that
Defendants intended to move for summary judgment, Ayala moved to
amend his complaint.
The district court granted the summary judgment motion,
determining that the evidence was insufficient to show that
Wolfe used excessive force in shooting Ayala. In addition, the
district court denied Ayala’s motion to amend the complaint.
Ayala appealed.
II.
With his first argument, Ayala contends that the district
court erred by granting summary judgment to Defendants on his
Section 1983 claims because Wolfe used unconstitutionally
2
On appeal, Ayala does “not persist in his allegation that
[the Lexington Police Department] committed a Monell [policy and
custom] violation as alleged in Count II of his original
Complaint.” Appellant’s Br. at 20 n.1.
4
excessive force by (1) initially shooting Ayala; (2) continuing
to shoot Ayala after he dropped his gun; and (3) shooting Ayala
after he fell to the ground.3 We review de novo the district
court’s grant of summary judgment, viewing all facts and drawing
reasonable inferences in Ayala’s favor. See Henry v. Purnell,
652 F.3d 524, 531 (4th Cir.) (en banc), cert. denied, 132 S. Ct.
781 (2011). Summary judgment is appropriate only if “‘no
material facts are disputed and the moving party is entitled to
judgment as a matter of law.’” Id. (quoting Ausherman v. Bank
of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).
A.
“The Fourth Amendment’s prohibition on unreasonable
seizures includes the right to be free of ‘seizures effectuated
by excessive force.’” Id. (quoting Schultz v. Braga, 455 F.3d
470, 476 (4th Cir. 2006)). Courts analyze whether an officer
has used excessive force under a standard of objective
reasonableness. Id. The reasonableness of a particular use of
force must be judged from the perspective of a reasonable
3
Ayala also argues that the district court erred by not
addressing his allegation that Wolfe violated his Fourth
Amendment rights by unlawfully stopping him. However, Ayala did
not raise this claim until his rejected motion to amend. Thus,
this claim is not properly before us.
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officer on the scene rather than with 20/20 hindsight. Anderson
v. Russell, 247 F.3d 125, 129 (4th Cir. 2001).
“The intrusiveness of a seizure by means of deadly force is
unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985).
Therefore, a police officer may use deadly force only when he
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. When a suspect confronts an officer with a weapon,
we have deemed the officer’s use of deadly force reasonable.
See Elliott v. Leavitt, 99 F.3d 640, 642-43 (4th Cir. 1996)
(holding that police officers’ actions were objectively
reasonable when they shot a man who pointed a handgun at them
after they had arrested him). As we have stated, “[n]o citizen
can fairly expect to draw a gun on police without risking tragic
consequences.” Id. at 644.
B.
With this legal framework in mind, we turn to Ayala’s
arguments in this case. Ayala first contends that Wolfe’s
initial decision to shoot him constituted excessive force. In
particular, Ayala claims that he never threatened Wolfe or
pointed his gun at Wolfe before Wolfe shot him. But even with
the benefit of every reasonable inference, a reasonable officer
would have had probable cause to fear serious physical harm
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justifying the use of deadly force under the circumstances of
this case.
Crucially, Wolfe instructed Ayala to place both hands on
the hood of the patrol car. Ayala testified that he understood
Wolfe’s command. Yet without saying a word to explain his
actions, Ayala took his right hand off the hood to remove the
gun in his waistband. On these facts, Wolfe acted objectively
reasonably in concluding that Ayala posed a threat of serious
physical harm warranting the use of deadly force at the time of
the first shot. Cf. Elliott, 99 F.3d at 642-44 (finding
officers’ use of deadly force against a handcuffed suspect
sitting in a patrol car reasonable because the suspect managed
to point a gun at them).
C.
The initial decision to shoot aside, Ayala argues that
because he dropped his gun after the first shot, Wolfe used
excessive force by continuing to fire at him. Ayala relies
heavily on Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005),
which held that “force justified at the beginning of an
encounter is not justified even seconds later if the
justification for the initial force has been eliminated.” Id.
at 481. The problem for Ayala is that “the reasonableness of an
officer’s actions is determined based on the information
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possessed by the officer at the moment that force is employed.”
Id. (citing Elliott, 99 F.3d at 643). And Ayala has proffered
no evidence that Wolfe should have known that he had dropped his
gun after the first shot, i.e., that the justification for using
deadly force had been “eliminated” after the first shot. See
id.
Ayala testified that he had no idea what Wolfe could see
after firing the first shot but confirmed that it was “very
dark[.]” J.A. 77. Ayala further testified that he did not know
whether his gun made a sound when it fell to the ground, and he
never informed Wolfe that he no longer held the gun.
Additionally, Ayala testified that the time between the first
shot and the “other ones” was really fast, J.A. 89, and that he
did not fall down until after the fifth shot. J.A. 92.
Wolfe testified that he could not see whether Ayala had
dropped his gun because of the darkness and the muzzle flash
from his gun. Instead, he focused on the center of Ayala’s body
when he fired his weapon, and he “never heard any sound that
would have suggested that Mr. Ayala had dropped his gun.” J.A.
74.
In essence, Ayala proffered no evidence that a reasonable
officer under the circumstances could have known that the threat
justifying the use of deadly force—that is, Ayala’s grabbing his
gun from his waistband in contravention of Wolfe’s order to
8
place his hands on the hood of the patrol car—had been
eliminated after the first shot, even assuming (as we must on
summary judgment) that it was. Cf. Estate of Rodgers ex rel.
Rodgers v. Smith, 188 F. App’x 175, 183 (4th Cir. 2006)
(unpublished decision) (concluding that even though the suspect
dropped his firearm as he fell, the police officer acted
reasonably in continuing to shoot because nothing in the record
reflected that the officer knew that the suspect was no longer a
threat).
D.
Ayala also challenges the district court’s determination
that Wolfe did not use excessive force by firing the final shot.
Ayala contends that Wolfe shot him in the back while he lay on
the ground on his stomach and four to five seconds after the
previous shots. Again, Ayala has failed to point to any record
evidence to support this contention.
Ayala admits that he was unconscious after he hit the
ground and thus could not competently testify that he was shot
after he fell.
Nor could Ayala’s experts testify that Wolfe fired the
final, paralyzing shot after Ayala had fallen to the ground.
One expert testified that he could not determine “whether
[Ayala] was lying down, whether he was standing, or . . . what
9
position the shooter was [in]” when Wolfe fired the final shot.
J.A. 153. The other expert testified that “[Ayala] could have
sustained that shot that rendered him paraplegic in a standing
position, as he was going down, or after he was on the ground.
. . . [A]ny one of these [is] possible . . . .” J.A. 297.
Ayala relies on two witnesses who testified that they heard
gunshots and, after a pause of four or five seconds, an
additional shot. But these witnesses did not see the shooting
or provide any information beyond the pause before the last
shot. Their testimony thus has little bearing on the question
of whether Wolfe fired the final shot after Ayala fell to the
ground or after Wolfe could have reasonably determined that
Ayala was no longer a threat.
Wolfe stated that “[a]t no time did I ever shoot at Mr.
Ayala after he fell to the ground or otherwise use any type of
force against Mr. Ayala after he fell to the ground.” J.A. 74.
Ayala has failed to proffer any evidence to controvert Wolfe’s
testimony. And the district court properly rejected Ayala’s
unsupported speculation about what happened after he had fallen.
In sum, Ayala has pointed to no evidence that Wolfe used
excessive force at the time of the first shot, upon firing
additional shots, or at the time of the last shot. The district
court therefore properly granted summary judgment to the
Defendants on Ayala’s Section 1983 claims.
10
III.
Ayala also asserted several state law claims against Wolfe,
including battery, negligence, gross negligence and intentional
infliction of emotional distress. In North Carolina, a public
officer is entitled to immunity “unless it is alleged and proved
that his act, or failure to act, was corrupt or malicious, or
that he acted outside of and beyond the scope of his duties.”
Showalter v. N.C. Dep’t of Crime Control & Pub. Safety, 183 N.C.
App. 132, 136, 643 S.E.2d 649, 652 (2007); see also Turner v.
City of Greenville, 197 N.C. App. 562, 566, 677 S.E.2d 480, 483
(2009) (stating that the public immunity doctrine protects a
public official from individual liability for negligence as long
as the official “lawfully exercises the judgment and discretion
with which he is invested by virtue of his office, keeps within
the scope of his official authority, and acts without malice or
corruption” (quoting Bailey v. State, 330 N.C. 227, 245, 412
S.E.2d 295, 306 (1991))).
Ayala contends that the district court erred by granting
Defendants’ motion for summary judgment on his state law claims
arising from Wolfe’s actions. Here, Ayala has not overcome
Wolfe’s public officer immunity under North Carolina state law.
As explained above, the record evidence necessarily leads to the
conclusion that Wolfe’s actions were objectively reasonable
under the circumstances. Thus, Ayala has not shown that Wolfe
11
acted corruptly, maliciously, or outside the scope of his
duties.
IV.
With his last argument on appeal, Ayala contends that the
district court abused its discretion by denying his motion to
amend his complaint. While we review such a decision only for
abuse of discretion, “‘leave to amend a pleading should be
denied only when the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.’” Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 409 (4th Cir.
2013) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 242
(4th Cir. 1999)).
Ayala initially sought to amend his complaint to add: (1) a
claim that the initial stop violated the Fourth Amendment and
constituted false imprisonment, and (2) state law claims against
the Lexington Police Department in its official capacity
alleging waiver of sovereign immunity based on an insurance
policy. Ayala later sought to add the City of Lexington as an
additional defendant. The district court did not abuse its
discretion in barring Ayala from belatedly asserting new claims
and adding a new party. Much time had passed, discovery had
concluded, and granting Ayala’s late motion would prejudice
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Defendants. See Mayfield v. Nat’l Ass’n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 379-80 (4th Cir. 2012) (affirming
the district court’s denial of the appellants’ motion to amend
the complaint to add new allegations and causes of action after
a significant amount of discovery had been conducted because of
the resulting prejudice to the appellees). Further, the
district court did not abuse its discretion in determining that
the proposed state law claims against the Lexington Police
Department would be futile, given the lack of evidence
supporting Ayala’s excessive force claim.
V.
In sum, the district court properly concluded that Wolfe
did not use excessive force when he shot Ayala. We reiterate
our admonition that “[n]o citizen can fairly expect to draw a
gun on police without risking tragic consequences.” Elliott, 99
F.3d at 644. Yet, this case surely begs the questions of why
the officer did not remove Ayala’s gun when he discovered it
during his frisk or communicate to Ayala after discovering the
gun. Perhaps those simple steps could have obviated the
(objectively reasonably perceived) need to fire even one shot at
Ayala. However, this case turns not on what could have been,
but on the objective reasonableness of the force applied under
the circumstances as they played out. And under the facts of
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this case, Wolfe’s use of deadly force was objectively
reasonable. Accordingly, the district court’s decision is
AFFIRMED.
14