Gregory v. Zumult , 294 F. App'x 792 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1282
JULIA F. GREGORY, as personal representative of the Estate of
Asberry Wylder, and in her individual capacity,
Plaintiff - Appellant,
v.
JON R. ZUMULT, Chief; COYLE KINARD, Captain; CHARLES A. SMITH,
Deputy Chief; RICHARD DEAN, Corporal; TIMOTHY JAMES HANDY,
Officer; MICHAEL D. SUTTON, Officer; MATTHEW B. HUGHES,
Officer; DAVID A. NEUMANN, Officer; STEVEN S. EVANS, Officer;
MATTHEW J. LAWLESS, Officer; JAMES WALLEY, Sergeant; NORTH
CHARLESTON POLICE DEPARTMENT; CITY OF NORTH CHARLESTON; J. AL
CANNON, JR., Sheriff of the Charleston County Jail,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:05-cv-3061-PMD)
Submitted: July 17, 2008 Decided: September 26, 2008
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark W. Hardee, THE HARDEE LAW FIRM, Columbia, South Carolina, for
Appellant. Stephanie P. McDonald, Sandra J. Senn, SENN, MCDONALD
& LEINBACH, LLC, Charleston, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julia F. Gregory, the personal representative of Asberry
Wylder, appeals the district court’s grant of Appellees’ Fed. R.
Civ. P. 50 motion for judgment as a matter of law dismissing her
wrongful death, survival, and loss of consortium claims under 42
U.S.C. § 1983 (2000). We have reviewed the record and find no
reversible error.
On the afternoon of November 7, 2003, Wylder walked into
a grocery store in North Charleston, South Carolina. Wylder
threatened grocery store clerks with a serrated steak knife and
took a package of ham before leaving the store. Police officers
confronted Wylder outside the store and, according to their
testimony and the testimony of several nearby eyewitnesses,
repeatedly told him to drop the knife and get on the ground.
Wylder refused and ignored the warnings while backing away from the
officers, leading them across the street. Wylder eventually
dropped the ham, reached into his pocket, and pulled out a
screwdriver that he had sharpened to a point. The officers failed
in their attempts to disarm Wylder by using pepper spray and
batons. During one of the attempts, Wylder cut Officer David
Neumann on the lip and chin with the knife. When Wylder advanced
toward the officers, Officer James Handy drew his firearm and fired
a single shot that hit Wylder. Wylder fell to one knee, but he
refused to drop the knife and attempted to get back to his feet.
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Handy fired a second shot and Wylder fell to the ground, where
officers subdued and handcuffed him. Wylder died as a result of
the gunshot wounds.
This court reviews de novo the grant of a Fed. R. Civ. P.
50 motion for judgment as a matter of law, viewing the facts in the
light most favorable to the nonmoving party. A Helping Hand, LLC
v. Baltimore County, 515 F.3d 356, 365 (4th Cir. 2008). “Judgment
as a matter of law is proper only if ‘there can be but one
reasonable conclusion as to the verdict.’” Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “Such
a motion is properly granted if the nonmoving party failed to make
a showing on an essential element of his case with respect to which
he had the burden of proof.” Wheatley v. Wicomico County, 390 F.3d
328, 332 (4th Cir. 2004) (internal quotation marks and citation
omitted); see Fed. R. Civ. P. 50(a)(1).
Gregory claims the district court failed to look at the
evidence in the light most favorable to her when it found Wylder
possessed the weapons and threatened the police officers. Five
bystanders testified they neither saw weapons in Wylder’s hands nor
saw him provoke the officers. While the district court had to draw
all reasonable inferences in favor of Gregory, it also could
consider uncontradicted and unimpeached evidence from disinterested
witnesses. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
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133, 150 (2000). Two store employees, unimpeached disinterested
witnesses, testified Wylder threatened them with the knife from a
short distance. The coroner, also an unimpeached disinterested
witness, found cuts on Wylder’s hand consistent with holding a
serrated knife. None of the witnesses dispute that a knife and
screwdriver matching the descriptions provided by the witnesses who
saw the weapons were recovered from the ground near Wylder. One of
Gregory’s witness, James Blankenship, saw the knife, as did
disinterested witnesses Michael Branham and Charles Hall.
In Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th Cir.
1998), Mark Sigman threatened police officers with a knife from
inside a house. When he exited the house, the officers warned
Sigman to stop, but when he continued to approach they shot him
twice, mortally wounding him. Id. at 784-85.
Sigman held that the statements of persons who claimed to
have observed, from a cheering mob on the other side of
the street, that the suspect was unarmed did not create
a triable issue of material fact where the officers
closest to the encounter unanimously testified that they
perceived the suspect to be armed. [Sigman, 161 F.3d] at
787. The Sigman Court concluded that given the volatile
and dangerous atmosphere and the need to make a
split-second self-defense decision, the question of
whether the suspect had a knife was not necessarily
material to the question of whether a reasonable officer
could have perceived him to be a violent threat. Id. at
788.
Rogers v. Pendleton, 249 F.3d 279, 292-93 (4th Cir. 2001) (footnote
omitted).
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In the present case, there was uncontroverted evidence
that Wylder had threatened to hurt the store employees with a
knife. The five officers who testified gave detailed and
consistent testimony describing Wylder’s possession of the knife
and screwdriver. The officers, who were closer than any bystander,
uniformly testified to Wylder’s volatile and unpredictable actions
and how Handy acted quickly when he perceived Wylder as a threat to
the officers.
In a rapidly evolving scenario such as this one, a
witness’s account of the event will rarely, if ever,
coincide perfectly with the officers’ perceptions because
the witness is typically viewing the event from a
different angle than that of the officer. For that
reason, minor discrepancies in testimony do not create a
material issue of fact in an excessive force claim,
particularly when, as here, the witness views the event
from a worse vantage point than that of the officers.
Anderson v. Russell, 247 F.3d 125, 130-31 (4th Cir. 2001) (citing
Sigman, 161 F.3d at 788). The discrepancies between the officers’
testimony and the observations of the bystanders who did not see
the knife or Wylder’s aggressive actions are not enough to raise a
material question of fact disputing the version of events described
by the unimpeached witnesses and the consistent testimony of the
officers. We conclude the district court did not err in its
factual conclusions when it granted the Rule 50 motion.
A claim that police used excessive force is examined
under the Fourth Amendment to determine whether the force used was
objectively reasonable. Graham v. Connor, 490 U.S. 386, 394-97
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(1989). Under Graham, a court must focus on the moment that 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, even if the suspected
criminal activity is relatively minor. Anderson, 247 F.3d at 132;
Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996). “An
officer’s [decision] is ‘judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight,’ allowing for the fact that ‘police officers are
often forced to make split-second judgments — in circumstances that
are tense, uncertain, and rapidly evolving.’” Milstead v. Kibler,
243 F.3d 157, 163 (4th Cir. 2001) (quoting Graham, 490 U.S. at 396,
397).
“The intrusiveness of a seizure by means of deadly force
is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985).
However, such deadly force may be employed “[w]here the officer 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. “Thus, if the suspect threatens the officer with a weapon or
there is probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious
physical harm, deadly force may be used if necessary to prevent
escape, and if, where feasible, some warning has been given.” Id.
at 11-12.
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Here, the officers repeatedly warned Wylder to stop, drop
his weapons, and get on the ground. The officers knew of Wylder’s
threats to harm the store employees and saw him strike Officer
Neumann. The officers unsuccessfully attempted to use nonlethal
force to disarm Wylder, but he resisted. When he perceived Wylder
as a threat to the safety of the officers, Handy made a split-
second decision to shoot Wylder.
Even if Wylder was not actually about to attack the
officers, Handy and the other officers acted on their reasonable
perception that Wylder was about to do so. “[T]he Fourth Amendment
does not require omniscience. . . . Officers need not be absolutely
sure . . . 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.” Elliott, 99 F.3d at 644; see
also Slattery v. Rizzo, 939 F.2d 213, 215-16 (4th Cir. 1991)
(finding deadly force appropriate when suspect failed to comply
with officer’s order to raise his hands and officer reasonably
believed suspect to be coming at him with a weapon, although the
“weapon” turned out to be a beer bottle). The situation had
escalated to the point that the officers believed the use of deadly
force was necessary to prevent harm to themselves.
Gregory argues Handy’s actions were unreasonable and he
could have used a lesser degree of force. Notwithstanding the
officers’ use of pepper spray and batons, the “suggestion that the
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officers might have responded differently is exactly the type of
judicial second look that the case law prohibits.” Elliott, 99
F.3d at 643. The district court properly declined to look back in
hindsight to second—guess Handy’s decision to use deadly force
instead of a lesser degree of force.
Handy’s split-second decision to use deadly force against
Wylder was reasonable in light of Handy’s well-founded belief that
Wylder was threatening to harm the officers. Thus, Handy’s use of
deadly force does not constitute a Fourth Amendment violation. As
Handy’s actions were reasonable, we need not address any claims
against the other officers, the police department, the chief of
police, and the town of North Charleston because “[i]n the absence
of any underlying use of excessive force . . ., liability cannot be
placed on either the non-shooting officers, a supervisor, or the
City.” Hinkle v. City of Clarksburg, 81 F.3d 416, 420 (4th Cir.
1996).
Because the district court did not err when it granted
Appellees’ motion for judgment as a matter of law, we affirm the
judgment. 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
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