Smith v. Kendall ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6452
MICHAEL ANDREW SMITH,
Plaintiff - Appellee,
v.
RICHARD T. KENDALL,
Defendant - Appellant,
and
SANFORD POLICE DEPARTMENT,
Defendant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton
Tilley, Jr., Senior District Judge. (1:05-cv-00495-NCT-PTS)
Submitted: December 29, 2009 Decided: March 8, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Rachel E. Daly, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Winston-
Salem, North Carolina, for Appellant. Romallus O. Murphy,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard T. Kendall, a police officer with the Sanford
Police Department in North Carolina (“SPD”), appeals the
district court’s order denying his motion for summary judgment
in Michael Andrew Smith’s civil action alleging a Fourth
Amendment excessive force claim under 42 U.S.C. § 1983 (2006).
We affirm in part and dismiss in part.
I.
On the evening of January 1, 2003, Kendall, on duty
with the SPD, observed a sport utility vehicle (“SUV”) with its
rear taillights out. Kendall followed in his patrol car and
activated its blue lights in an effort to stop the SUV, but
Smith, the driver, responded by accelerating the SUV. Kendall
pursued Smith along a gravel road at a high rate of speed, at
times, activating the patrol car’s siren. Smith ran through two
stop signs before the vehicles reached an unpaved area, around a
local foundry that contained sand, mud, and railroad tracks. A
light was present but did not illuminate the area, and it was
drizzling and the sand was muddy. Smith’s SUV came to a stop,
and Kendall parked the patrol car nearby and approached the SUV
on foot. After approaching the SUV, Kendall fired multiple
gunshots into its windshield. The fact of the shooting is
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undisputed, but the parties’ accounts of the circumstances
leading up to it differ greatly.
Kendall stated in an affidavit that after he
approached the front of the SUV, Smith “revved” its engine, and
the SUV “lunged” toward Kendall. Kendall shouted at Smith to
stop, but the SUV continued to “wildly bounce,” moving forward
toward Kendall upon gaining traction and then moving backward
upon losing traction. Kendall lost his footing, and his leg
became stuck against a pile of muddy sand. Smith continued to
rev the SUV’s engine. Fearful that the SUV would run over him,
Kendall pulled out his firearm, aimed at Smith’s right arm in an
attempt to knock it off the steering wheel, and fired the gun
once through the SUV’s windshield. Smith, however, continued to
rev the SUV’s engine, and when the SUV came within a few feet of
Kendall, the officer fired six more times through the
windshield. Smith continued to rev the SUV’s engine, and it was
not until after Kendall’s eighth shot that Smith finally took
his hands off the steering wheel.
By contrast, Smith stated in an affidavit that after
Kendall approached the SUV, he ordered Smith to turn off its
engine and put his hands up. When Smith heard this command, he
complied. While the SUV’s engine was off and Smith’s hands
raised, Kendall fired his gun several times through the SUV’s
windshield.
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Smith was later taken to a hospital, and the operating
physician discovered two bullet wounds in Smith’s right arm.
According to the physician’s deposition testimony, the bullet
entry wounds Smith received were not like those he would have
received had he had his arms extended above his shoulders during
the shooting. Ruts of several feet in length were present in
the mud around the foundry, and there was mud splatter on the
SUV.
Kendall moved for summary judgment on the ground of
qualified immunity. The district court denied Kendall’s motion
on the qualified immunity defense, concluding that there existed
a genuine dispute as to whether the shooting constituted
excessive force under the Fourth Amendment and whether a
reasonable officer in Kendall’s position would have known that
his actions were unlawful. Kendall noted this interlocutory
appeal.
II.
A government official such as Kendall is not entitled
to qualified immunity from liability for civil damages if a
reasonable officer in his position would have known that his
shooting of Smith would violate Smith’s constitutional right to
be free from an excessive application of force. See Anderson v.
Creighton, 483 U.S. 635, 638-39 (1987). Kendall requests that
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the district court’s qualified immunity determination be
reversed on the current record.
This court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-
47 (1949). Although the Supreme Court has recognized that an
order rejecting a claim of qualified immunity is an appealable
order at the summary judgment stage, Mitchell v. Forsyth, 472
U.S. 511, 530 (1985), it has more recently explained that
immediate appealability of an order declining to accept a
defense based on qualified immunity is appropriate only if the
denial rests on a purely legal determination that the facts do
not establish a violation of a clearly established right,
Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Thus, “if the
appeal seeks to argue the insufficiency of the evidence to raise
a genuine issue of material fact, this court does not possess
jurisdiction under [28 U.S.C.] § 1291 to consider the claim.”
Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir. 2009); see
Winfield v. Bass, 106 F.3d 525, 529-30 (4th Cir. 1997)
(en banc). This court must accept the facts as set forth by the
district court in assessing the summary judgment ruling. Bailey
v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003).
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Relying on the parties’ conflicting accounts of the
events that immediately preceded the shooting, the district
court concluded that there existed in the record evidence from
which a reasonable trier of fact could conclude that Smith was
not posing an imminent threat to Kendall at the time Kendall
fired his weapon. While Kendall claims that the record shows
that his use of force was reasonable because he faced an
imminent threat of being run over by Smith’s SUV, we lack
jurisdiction to consider this claim, as it argues the
“insufficiency of the evidence to raise a genuine issue of
material fact.” Winfield, 106 F.3d at 529. We therefore
dismiss this portion of the appeal.
III.
Kendall also asserts that even granting that he
violated Smith’s rights under the Fourth Amendment, he is still
entitled to qualified immunity because a reasonable officer in
his position could have believed that the use of force employed
here was reasonable. This is so, Kendall contends, because, at
the time of the shooting in January 2003, the illegality of his
use of force in this case was not clearly established because
the law of this Circuit was unsettled. While we possess
jurisdiction to consider this claim, see id. at 530, we
nonetheless conclude it fails.
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To determine whether the district court erred in
rejecting a claim of qualified immunity, this court asks whether
a violation of a right secured by the Fourth Amendment occurred
and, if so, whether the right was so clearly established at the
time of the violation that a reasonable officer in Kendall’s
position could not have believed he was acting legally. See
Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 231
(4th Cir. 2002). At the time of the shooting in January 2003,
the law was clearly established that claims of excessive force
during arrest are governed by the Fourth Amendment and are
analyzed under an “objective reasonableness” standard.
Graham v. Connor, 490 U.S. 386, 388, 395-96 (1989). Application
of this standard requires a “careful balancing of the nature and
quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing government interests at
stake.” Id. at 396 (internal quotation marks omitted). The
analysis also requires “careful attention to the facts and
circumstances of each particular case, including . . . whether
the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Id. Because police
officers may have to make split-second decisions in
circumstances that are “tense, uncertain, and rapidly evolving,”
facts are to be “evaluated from the perspective of a reasonable
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officer on the scene, and the use of hindsight must be avoided.”
Gray-Hopkins, 309 F.3d at 231. An officer may use deadly force
when he has good reason to believe that the suspect presents a
threat of serious physical harm to himself or others.
Tennessee v. Garner, 471 U.S. 1, 11 (1985). Further, under
Graham, a court must focus on the moment when deadly force was
used. Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th Cir.
1991). Actions prior to that moment are not relevant in
evaluating whether the force used was reasonable. Elliott v.
Leavitt, 99 F.3d 640, 643 (4th Cir. 1996).
Based on Smith’s version of the events giving rise to
this litigation, Smith was in the SUV with the engine turned off
at the time Kendall started shooting at him. He was not
resisting arrest or endangering the safety of Kendall or others.
If this version of events is accepted, a trier of fact could
easily conclude that a Fourth Amendment violation occurred and
that a reasonable officer in Kendall’s position could not have
believed that he was acting lawfully in employing deadly force.
IV.
For the above reasons, we affirm the district court’s
determination that the right in question was clearly established
and dismiss the remainder of the appeal for lack of
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jurisdiction. * We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
DISMISSED IN PART
*
By this disposition, we indicate no view as to which of
the competing versions of events is more likely or which should
be accepted by the factfinder.
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