Deborah Bygum v. The City of Montgomery ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2130
DEBORAH BYGUM, Administratrix of the Estate of Eric Michell Young,
deceased,
Plaintiff – Appellee,
v.
THE CITY OF MONTGOMERY; ROGER L. KING, individually as a member of
the Montgomery Police Department,
Defendants – Appellants,
and
THE MONTGOMERY POLICE DEPARTMENT; CITY OF SMITHERS; JOHN
MICHAEL HESS, SR., individually as a member of the Smithers Police Department,
Defendants.
Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:19-cv-00456)
Argued: October 25, 2022 Decided: February 24, 2023
Before RICHARDSON and RUSHING, Circuit Judges, and Sherri A. LYDON, United
States District Judge for the District of South Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Lydon wrote the opinion, in which Judge
Richardson and Judge Rushing joined.
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ARGUED: Michael William Taylor, BAILEY & WYANT, PLLC, Charleston, West
Virginia, for Appellants. Stephen Paul New, NEW, TAYLOR & ASSOCIATES, Beckley,
West Virginia, for Appellee. ON BRIEF: Charles R. Bailey, BAILEY & WYANT,
PLLC, Charleston, West Virginia, for Appellants. Russell A. Williams, NEW, TAYLOR
& ASSOCIATES, Beckley, West Virginia; Truman C. Griffith, WARNER LAW
OFFICES, PLLC, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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LYDON, District Judge:
Shot four times by Officer Roger King, Eric Young died in the early morning hours
of February 11, 2019, on a deserted West Virginia street. The shooting came on the heels
of a tense foot pursuit spanning less than five minutes. King followed Young for several
blocks, trying unsuccessfully to apprehend him for committing several non-violent
misdemeanors such as shouting obscenities, attempting to break into a patrol car, trying to
evade arrest, and obstruction. Officer King did not know if Young had a weapon. But he
could not rule out the possibility Young was armed.
When Officer King opened fire, Young was empty-handed, stationary, and 50 feet
away. With the first shot, Young started falling. Firing four more times while advancing
on Young, Officer King fired the final shot when he had advanced to 25 feet from Young.
Whether true or not, we must view these facts in the plaintiff’s favor as provided by
the district court. A jury could of course credit Officer King’s different story at trial. But
that’s for another day. The district court correctly noted it lacks that option (as do we) on
Officer King’s motion for summary judgment. And contrary to Appellants’ arguments, the
record here does not “blatantly contradict” the nonmoving party’s version of events such
that we cannot accept the facts as the district court viewed them. Because a jury could
reasonably find Officer King violated Young’s clearly established Fourth Amendment
right to be free from excessive force, the district court properly denied King qualified
immunity at this stage of the litigation. We affirm the district court’s decision.
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I. Background
Working the overnight shift alone on February 11, 2019, around 4:30 a.m., Officer
King heard someone yelling obscenities and threatening to kill everyone. King checked
the live video feed of the alleyway behind the Montgomery Police Department station and
saw a man, later identified as Eric Young, trying to open his locked police cruiser door.
Seeming to head to another cruiser, Young disappeared from the video frame. King
notified police dispatch of Young’s actions and left the station to investigate.
After searching, Officer King heard and then saw Young in a neighbor’s car shed.
King instructed Young to walk over to him. Instead, Young walked away and Officer King
followed. Attempting to confront Young, King (6’ 2” and between 180 to 185 pounds)
told Young (5’ 7” and 166 pounds) to get on the ground. Young told Officer King to get
out of his face and walked away. Officer King again followed.
Throughout the pursuit, Young remained non-compliant—refusing to get on the
ground as directed—and behaved erratically. J.A. 642–44. Young yelled “something
about Satan and the Lord,” J.A. 642. When Officer King asked Young who he was, Young,
in a voice King described as “demonic,” said he was Satan. J.A. 642. Young also
repeatedly flailed his arms and shirt, which Officer King said made him suspect aggression
and the possibility that Young was reaching for a weapon in his waistband. 1 J.A. 642. He
never saw a weapon on Young, though. J.A. 642.
1
In his statement provided to investigating officers less than three hours after the
incident, King initially stated he “didn’t see a weapon so [he] didn’t really think anything
of” Young’s actions. J.A. 42. But Officer King later said he “couldn’t tell if there was
(Continued)
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According to Officer King, Young stopped more than once to turn and “lunge” at
him before turning around and walking away again. J.A. 642. During one of those
instances, after Young turned and began walking toward Officer King, King fired his taser.
Young appeared to rip the wires out before walking away again. With the taser failing to
drop Young, King worried a substance was blocking Young’s pain receptors. King
notified police dispatch the taser was ineffective and continued to follow Young.
At some point after attempting to tase Young, Officer King drew his firearm in one
hand while still carrying the taser in the other. J.A. 643. Though out of cartridges, King
tried, to no avail, to convince Young to comply and get on the ground by threatening to
tase him again. J.A. 643–44. Soon after, the encounter ended with Officer King firing five
shots at Young, four of which hit and killed him. J.A. 399, 644.
After the shooting, Officer King stated he called for immediate medical assistance
and unsuccessfully tried to save Young by applying pressure to his chest wound. At some
point following the shooting, King discovered an unopened pocketknife clipped to Young’s
pocket. J.A. 643 n.4. Soon after, backup and paramedics arrived. Young was pronounced
dead. J.A. 398. He died from multiple gunshot wounds perforating the heart and lungs.
J.A. 399.
something in [Young’s] waistline.” J.A. 42. In his statement and during his deposition
just over a year later, King further stated he could not rule out whether Young’s picking up
his shirt revealed he had a weapon. See J.A. 52 (“And then when he started flapping his
shirt up and down, I thought he’s gonna reach for a gun or he’s gonna’ have something so
that’s why I pulled my gun out in fear that he had something.”); J.A. 60 (testifying “[i]f
he’s flailing his shirt, I don’t know if he’s not reaching for a weapon.”).
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Officer King and Deborah Bygum, Young’s mother, disagree on the circumstances
of the shooting, especially the positions, locations, and movements of King and Young.
According to Officer King, Young was about 20 feet away when he turned to face King
and charged him. J.A. 644. King stated he then shot Young when Young closed the
distance between them to about 8 to 10 feet. J.A. 644. Officer King reported Young “said,
just shoot me.” J.A. 499, 644. King also stated he feared for his life and was concerned
that if he backpedaled he could fall and lose his firearm because of a curb behind him. J.A.
644. After the first two shots, “[Young] just kept coming and then he turned and he turned
around again and that’s when [King] thought he was gonna’ reach or something,” and King
shot him again. J.A. 645.
In his initial, transcribed statement to law enforcement King said that, after the last
shot, Young fell on his back with his head toward King and his legs facing “the Kanawaha
side.” J.A. 645. During his deposition, however, King testified that, post-shooting,
“[Young] stood completely straight up, turned completely around away from [King], and
walked a good distance” before he “collapsed against the fence line.” J.A. 645.
Following the incident, Ms. Bygum brought several federal and state-law claims in
the U.S. District Court for the Southern District of West Virginia. She sued Officer King,
the cities of Montgomery and Smithers, and Officer John Hess. Ms. Bygum retained a
forensic expert, Dr. Jeremy J. Bauer, Ph.D., to suggest how the shooting unfolded. Based
on Dr. Bauer’s reconstruction of the shooting, Young’s version of events would differ from
King’s if Young were here to tell it.
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Dr. Bauer used 3D visualization software to recreate the shooting. He simulated the
event following his consideration of the physical evidence (e.g., King’s ejected bullet
casings, Young’s bullet wounds, the locations of two bullets that struck the house behind
Young, Young’s location and position of rest), Officer King’s statement and deposition
testimony, and the autopsy report. Based on the 3D digital simulation, Dr. Bauer
concluded: Officer King fired the first shot, which hit Young in the left side of his chest,
when Young was 50 feet away facing him; Young was falling and rotating to his right with
respect to Officer King when he was struck by the next three bullets; Officer King fired the
last shot at 25 feet away from Young; and Young was not charging Officer King when
shots were fired. J.A. 646–50. Dr. Bauer otherwise “couldn’t eliminate whether or not
[Young] was moving forward or walking backward” during the shooting. J.A. 464. He
also determined Officer King moved toward Young “in an approximate 42-foot leftward
arc” during the shooting. J.A. 649–50.
Officer King and the City of Montgomery moved for summary judgment on, among
other grounds, qualified immunity on Ms. Bygum’s claim Officer King violated her son’s
Fourth Amendment right to be free from excessive force. In considering Officer King’s
summary judgment motion, the district court construed the facts in Ms. Bygum’s favor and
assumed true the following narrative:
Officer King, who was noticeably larger than Young, opened fire while
Young was 50 feet away, stationary, not wielding a weapon, and not known
to be carrying a weapon. He then fired four more bullets while advancing 42
feet in a leftward arc towards Young, firing the last bullet 25 feet away from
Young. Young began to fall to the ground after the first shot. Officer King
had probable cause to believe Young had committed several non-violent
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misdemeanors that night … and that Young was attempting to evade arrest
by flight. There is no evidence that anyone else was in the area at the time.
J.A. 654.
Against these facts, the district court decided a jury could find the shooting violated
Young’s clearly established Fourth Amendment right to be free from excessive force. J.A.
651–59. Officer King and the City of Montgomery now appeal the denial of their summary
judgment motion, asking we find King is entitled to qualified immunity and reverse. J.A.
671; Br. of Appellants at 47. They argue Officer King did not violate Young’s
constitutional rights, Br. of Appellants at 15–33, and, if he did, such rights were not clearly
established, Br. of Appellants at 34–47.
II. Jurisdiction
“A denial of summary judgment based on qualified immunity presents a narrow
exception to the general rule that we cannot review a denial of summary judgment in an
interlocutory appeal.” Halcomb v. Ravenell, 992 F.3d 316, 319 (4th Cir. 2021). Based on
this limited exception, we have jurisdiction under 28 U.S.C. § 1291 over the district court’s
denial of qualified immunity here “to the extent it turns on an ‘issue of law.’” Behrens v.
Pelletier, 516 U.S. 299, 311 (1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530
(1985)). But we may not review the district court’s facts. See Iko v. Shreve, 535 F.3d 225,
234 (4th Cir. 2008) (“[W]e lack jurisdiction to re-weigh the evidence in the record to
determine whether material factual disputes preclude summary disposition.”).
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III. Discussion
A. Legal Standards
An objective reasonableness standard governs our analysis of Bygum’s Fourth
Amendment excessive force claim. Elliott v. Leavitt, 99 F.3d 640, 642–43 (4th Cir. 1996)
(citing Graham v. Connor, 490 U.S. 386, 395–97 (1989) and Tennessee v. Garner, 471
U.S. 1 (1985)). “When deadly force is used, we have a more specific test for objective
reasonableness.” Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022). “In those cases, we
consider whether the hypothetical reasonable officer in that situation would have had
‘probable cause to believe that the suspect pose[d] a threat of serious physical harm, either
to the officer or to others.’” Id. (quoting Waterman v. Batton, 393 F.3d 471, 477 (4th Cir.
2005)). Our review “must focus on the moment that deadly force was used” rather than
“the whole episode.” Id. “[T]he justification for deadly force can fall away in seconds.”
Id.Taking care to “avoid hindsight bias,” we must “try to place ourselves in the heat of
the moment,” Stanton, 25 F.4th at 233, mindful “that officers on the beat are not often
afforded the luxury of armchair reflection,” Elliott, 99 F.3d at 642. We must “allow[] 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.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)
(quoting Graham, 490 U.S. at 396–97).
We consider the affirmative defense of qualified immunity against this substantive
legal backdrop. “Qualified immunity balances two important interests—the need to hold
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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). “When a qualified-immunity
defense is raised, we apply a two-step test.” Stanton, 25 F.4th at 233. “We must determine,
first, whether the facts viewed in [Ms. Bygum’s] favor make out a violation of [her son’s]
constitutional rights, and second, whether that violated right was clearly established at the
time.” Id. The burden of proof in this circuit is the plaintiff’s on the first question and the
defendants’ on the second. Id. (citing Henry v. Purnell, 501 F.3d 374, 377–78 & n.4 (4th
Cir. 2007)).
When we review a district court’s denial of summary judgment in the qualified
immunity context, “our review is de novo.” See id. at 234. “We view the evidence in the
light most favorable to the plaintiff; we draw all reasonable inferences in h[er] favor; and
we do not weigh the evidence or make credibility calls, even if we do not believe [s]he will
win at trial.” Id. Summary judgment is appropriate only if there is no genuine dispute of
material fact and Officer King is entitled to qualified immunity as a matter of law. See id.
B. Federal Qualified Immunity Analysis
1. Constitutional Violation
Viewing the facts most favorably to Ms. Bygum in the moments immediately
preceding the use of lethal force, Officer King lacked probable cause to believe Young
posed an immediate threat of serious physical harm to King or others. Other than Officer
King and Young, the streets were empty. If Young threatened anyone, it would have been
Officer King. But when Officer King opened fire, Young was standing 50 feet away,
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stationary, empty-handed, and not known to be carrying a weapon. J.A. 654–55. After the
first shot, Young started falling. Officer King advanced on Young in a 42-foot leftward
arc as he kept shooting, firing the last shot when he reached 25 feet away from Young.
Officer King had probable cause to suspect Young recently committed non-violent
misdemeanors and attempted to evade arrest by flight. But at the time of the shooting,
King lacked “probable cause to believe that [Young] pose[d] a threat of serious physical
harm, either to the officer or others.” Garner, 471 U.S. at 11; see also Wilson v. Prince
George’s Cnty., 893 F.3d 213, 220 (4th Cir. 2018) (“A jury could determine that [plaintiff],
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 [the officer] or others, thereby rendering [the
officer’s] use of lethal force unreasonable”).
In no way do we discount that Officer King may have reasonably believed Young
was potentially dangerous. To be sure, the justification for deadly force can arise in
seconds, just as it also “can fall away in seconds.” Stanton, 25 F.4th at 233. And King had
just observed Young commit several misdemeanors and behave erratically, yelling
obscenities and talking about God and Satan. Besides this irregular behavior, Young kept
flailing his arms and shirt during the confrontation, which made Officer King worried that
Young was aggressive and possibly reaching for a weapon. Though Officer King did not
see a weapon on Young, he couldn’t rule it out. More than once, Young lunged at Officer
King. And Young continually refused to comply with Officer King’s lawful commands.
While there may have been times during this pursuit Officer King felt fearful, the
moments immediately preceding the use of deadly force paint an objectively different
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picture. Young was 50 feet away, not moving, and not known to be armed. That’s when
Officer King fired his first shot. As Young was falling from the impact of the bullet,
Officer King advanced on Young, cutting the distance in half, while firing four more shots
killing Young in the deserted street. In those vital moments, Officer King could not
reasonably believe Young posed a threat of serious physical harm to King or others.
Appellants disagree. First of all, they argue, we can consider and reject the district
court’s factual findings as so “blatantly contradicted by the record’ … that ‘no reasonable
jury could believe [them],” Harris v. Pittman, 927 F.3d 266, 276 (4th Cir. 2019) (quoting
Scott v. Harris, 550 U.S. 372, 380–81 (2007)). Br. of Appellants at 18–24; Reply Br. of
Appellants at 1–3. Appellants rely on Scott v. Harris to make that argument, though, and
the facts before this court are very different.
Though Scott does address a Fourth Amendment excessive force claim, Scott
involved “a videotape of the incident … that ‘utterly discredited’ the plaintiff’s account,
rendering it a ‘visible fiction.’” Harris, 927 F.3d at 275 (quoting Scott, 550 U.S. at 380–
81). The Scott Court instructed, “[w]hen opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott, 550 U.S. at 380.
We have emphasized that “Scott is the exception, not the rule[,]” Harris, 927 F.3d
at 276, and “does not ‘abrogate the proper summary judgment analysis, which in qualified
immunity cases ‘usually means adopting ... the plaintiff's version of the facts.’” Id.(quoting Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th Cir. 2011)). Scott
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applies “only when there is evidence—like the videotape in Scott itself—of undisputed
authenticity that shows some material element of the plaintiff’s account to be ‘blatantly
and demonstrably false.’” Id. (quoting Blaylock v. City of Phila., 504 F.3d 405, 414 (3rd
Cir. 2007)). This case lacks Scott’s “added wrinkle[,]” 550 U.S. at 378, of “evidence …
of undisputed authenticity[,]” Harris, 927 F.3d at 276, “clearly contradict[ing] the version
of the story told by [Ms. Bygum] and adopted by [the district court,]” Scott, 550 U.S. at
378. See also Stanton, 25 F.4th at 234 (“Courts should be careful at summary judgment to
avoid simply accepting an officer’s self-serving statements and must consider all
contradictory evidence.”).
But hold on, argues Officer King: Even if we accept the district court’s facts, his
use of lethal force was still constitutional because he reasonably believed Young posed a
serious threat of physical harm. Because Young was allegedly “reaching” or “grabbing at”
his waistband, and in fact had a knife on him, Officer King argues his shooting was
justified. We do not agree.
Let’s start with the record. When Officer King opened fire, Young was empty-
handed and stationary. J.A. 654–55. There is nothing in the record that suggests Young
furtively moved “immediately prior to and at the very moment” Officer King fired his
weapon. 2 Betton v. Belue, 942 F.3d 184, 191 (4th Cir. 2019) (quoting Greenidge v. Ruffin,
2
Officer King’s statements regarding Young “flailing” his shirt do not expressly
relate to the moments immediately preceding Officer King opening fire on Young. See
J.A. 42, 52, 60, 217, 628.
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927 F.2d 789, 792 (4th Cir. 1991)). And the knife is irrelevant because Officer King was
unaware of it until afterwards.
Now to the case law. The cases cited by Officer King are factually distinct and do
not help him. For example, an officer shot a detainee who “was running in a crouched
position” and “close behind” another deputy who was yelling “[t]he man has got a gun!”
in McLenagan v. Karnes, 27 F.3d 1002, 1005 (4th Cir. 1994). In Anderson v. Russell, an
officer shot a suspect after (1) the officer was told by a citizen the suspect “appeared to
have a gun[;]” (2) the officer perceived the suspect to have a gun “on his left side near his
waist band[;]” and (3) the suspect “lowered [his hands], without explanation to the officers,
in an attempt to reach into his back left pocket[,]” seemingly “reaching for the reported
weapon.” 247 F.3d 125, 128 (4th Cir. 2001). When Officer King opened fire on Young,
he had no such affirmative, reasonable belief that Young—who was standing still and
empty-handed in the vacant street—had a weapon and was on the verge of using it against
King or others.
Appellants’ reliance on Sigman v. Town of Chapel Hill is similarly misplaced. 161
F.3d 782 (4th Cir. 1998). The procedural flip of this case, Sigman involved the district
court’s grant of summary judgment for the officer on a Section 1983 excessive force claim.
But in Sigman “officers had uncontroverted evidence of a suspect’s dangerousness and
knew that the suspect was armed and was behaving violently within a residence.” Clem v.
Corbeau, 284 F.3d 543, 555 n.4 (4th Cir. 2002) (quoting Rogers v. Pendleton, 249 F.3d
279, 292 (4th Cir. 2001)). The Sigman suspect (1) had threatened to kill the officer and
others present, Sigman, 161 F.3d at 784–85, 787; (2) threw objects and swung a knife at
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the officer, id.; and (3) just before the officer shot him, had advanced to within 10 to 15
feet of the officer, knife in-hand, “in a threatening manner[,]” id. at 785. Young—a
nonviolent, nonthreatening misdemeanor suspect standing still, empty-handed, and 50 feet
away—hardly reminds us of the suspect in Sigman.
We thus conclude the district court correctly held a reasonable jury could find
Officer King’s actions here violated the Fourth Amendment.
2. Clearly Established Analysis
Because Ms. Bygum has shown Officer King violated her son’s Fourth Amendment
right to be free from excessive force, we turn to the second step of the qualified immunity
framework, the clearly established analysis. “A right is clearly established only if its
contours are sufficiently clear that ‘a reasonable official would understand that what he is
doing violates that right.’” Carroll v. Carman, 574 U.S. 13, 16 (2014) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)). We agree with the district court that Young’s
Fourth Amendment right not to be shot under the circumstances was clearly established.
As a threshold matter under this query, “we must first define the right at issue with
specificity[,]” Knibbs v. Momphard, 30 F.4th 200, 223 (4th Cir. 2022), “keeping in mind
that the Supreme Court has cautioned against defining the right at too ‘high [a] level of
generality,’” Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 539 (4th Cir. 2017) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “[W]e have previously stated, clearly
established ‘includes not only already specifically adjudicated rights, but those manifestly
included within more general applications of the core constitutional principle invoked.’”
Wall v. Wade, 741 F.3d 492, 502–03 (4th Cir. 2014) (quoting Pritchett v. Alford, 973 F.2d
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307, 314 (4th Cir. 1992)). There is no prerequisite of “a case directly on point[,]” Kisela,
138 S. Ct. at 1152 (quoting White v. Pauly, 580 U.S. 73, 79 (2017)), as “the test is not
whether ‘the very action in question has previously been held unlawful,’” Clem, 284 F.3d
at 555 (quoting Anderson, 483 U.S. at 640).
Instead, the standard is “whether pre-existing law makes the unlawfulness of an act
‘apparent.’” See id. (quoting Anderson, 483 U.S. at 640). With this test in mind, we do
not “assume that government officials are incapable of drawing logical inferences,
reasoning by analogy, or exercising common sense.” See Williams v. Strickland, 917 F.3d
763, 770 (4th Cir. 2019). “In some cases, government officials can be expected to know
that if X is illegal, then Y is also illegal, despite factual differences between the two.” Id.As such, “defendants ‘can still be on notice that their conduct violates established law even
in novel factual circumstances,’ so long as the law provided ‘fair warning’ that their
conduct was unconstitutional.” Booker, 855 F.3d at 538 (quoting Hope v. Pelzer, 536 U.S.
730, 741 (2002)).
Here, “the question before us … is whether it was clearly established [by February
11, 2019] that shooting an individual was an unconstitutional use of excessive force,”
Betton, 942 F.3d at 194, when (1) the suspect was 50 feet away from the officer; (2) the
suspect was facing the officer; (3) the suspect was stationary, not charging at or running
toward the officer; (4) the suspect was not wielding or known to be carrying a weapon; (5)
the officer had probable cause to believe the suspect had committed non-violent
misdemeanors; (6) the suspect had behaved erratically; (7) the suspect was non-compliant;
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(8) the suspect was attempting to evade arrest by flight; and (9) no other members of the
public were present.
As of February 2019, two Fourth Circuit decisions provided “fair warning” that
shooting a suspect under these circumstances “was unconstitutional.” Booker, 855 F.3d at
546 (quoting Hope, 536 U.S. at 741). These cases did not “specifically adjudicate”
Young’s right not to be shot under the conditions here and differ factually. But they involve
the court finding a suspect’s right to be free from deadly force clearly established when the
suspect posed a greater threat to the officer than Young did to Officer King. Thus, Young’s
right is “manifestly included within more general applications of the core constitutional
principle invoked” in the findings of Fourth Amendment violations in these cases. Wall,
741 F.3d at 502–03 (quoting Pritchett, 973 F.2d at 314).
First, in Clem v. Corbeau, two officers responded to a call to assist a mentally ill
man’s family with getting him to see a doctor. 284 F.3d at 545–46. Like Officer King, the
officers in Clem did not see anything indicating the presence of a weapon, see id. at 547,
551, though the officer who shot the man could not rule out that he was armed, see id. at
552, 555 n.3. Like Young, the man “became agitated[,]” see id. at 547, and non-lethal
force (pepper spray) seemed ineffective, id. Similarly, the man was “grabbing,” “flailing,”
and “waiving his arms around.” See id. The man’s hands were also “open” and
weaponless. See id. at 547–48. Viewing the facts in the light most favorable to the man
shot, the court found the constitutional right clearly established, as “a reasonable police
officer in [the officer’s] position would have perceived [the man] to be unarmed, blinded,
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and stumbling, in no condition to pose any threat to the officer” when the officer fired three
shots at close range down the hallway at the man. Id. at 548, 554.
Viewing our facts here, Young posed even less of a threat to Officer King than the
man posed to the officer in Clem. Young was 50 feet away instead of at close range,
stationary rather than moving toward the officer, and in an empty street instead of a
confined hallway. If the man in Clem’s constitutional right was clearly established, it is
“manifestly included” that Young’s was as well.
Second, in Wilson, officers responded to a 911 call that a woman’s ex-boyfriend had
broken into her home and assaulted her. 893 F.3d at 216. When they arrived on the scene,
officers located the man, who pulled out a knife that he refused to drop. Id. at 216–17. As
the man approached the officer, he slit his own throat, and stabbed and poked himself in
the chest, with the knife. Id. at 217. The suspect (who survived) said he was about 20 feet
away from the officers when the officer shot him five times. Id.The court stressed that following its 2018 opinion, officers were on notice that
shooting a person violates that person’s Fourth Amendment right to be free from excessive
force when (1) the person was a burglary and battery suspect (2) the person “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) [the person] was refusing
to obey the officer’s repeated commands to drop the knife at the time he was shot.” Id. at
224.
On each of these three elements, the Wilson suspect posed a greater threat to the
officer than Young did to Officer King. Officers suspected the man in Wilson of burglary
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USCA4 Appeal: 21-2130 Doc: 41 Filed: 02/24/2023 Pg: 19 of 19
and attacking someone—not nonviolent misdemeanors. And the Wilson suspect was 20
feet away when the officer shot him—30 feet closer to the officer than Young to Officer
King. Further, the Wilson suspect visibly had a knife he refused to drop and was stabbing
himself. Because Wilson “manifestly included” Young’s clearly established Fourth
Amendment right not to be shot under the circumstances here, it would have been apparent
to a reasonable officer on the scene that Officer King’s use of deadly force against Young
was unconstitutional. 3
IV. Conclusion
For the reasons articulated above, we find a reasonable jury could credit Ms.
Bygum’s version of events, if proven at trial, over Officer King’s story and determine
Officer King’s actions violated Young’s clearly established Fourth Amendment right to be
free from excessive force. Without suggesting who is right or whose side a jury may
ultimately believe, we therefore conclude Officer King was not entitled to qualified
immunity. Accordingly, the district court’s order denying Officer King summary judgment
on qualified immunity grounds with respect to plaintiff’s 42 U.S.C. § 1983 excessive force
claim is
AFFIRMED.
3
The cases Appellants rely on do not help Officer King on the clearly established
prong. See, e.g., Sigman, 161 F.3d at 784–85 (undisputedly dangerous suspect had
threatened to kill the officer and others present and had advanced to 10 to 15 feet from the
officer with a knife when shot); see also McLenagan, 27 F.3d at 1005–09 (officer shot
detainee “running in a crouched position” and “close behind” another deputy yelling “[t]he
man has got a gun!”); see also Anderson, 247 F.3d at 128–31 (suspect appeared to be
“reaching” for a gun, disregarding officers’ commands, when shot).
19