Noel v. Artson , 297 F. App'x 216 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1987
CHARLES RAYMOND NOEL; JACOB RALPH NOEL, individually and as
personal representative of the estate of Cheryl Lynn Noel;
RAMONA SCHWEIGER, to the use of Matthew Noel,
Plaintiffs – Appellees,
v.
CARLOS ARTSON, Officer, Badge No. 3836; DAVID SWEREN,
Officer, Badge #3794; MICHAEL GIDDINGS, Officer, Badge
#3305; MARK CRUMP, Sergeant, Badge #3389; ROBERT M.
GIBBONS, Sergeant, Badge #3904; BALTIMORE COUNTY, MARYLAND,
Defendants – Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:06-cv-02069-WMN)
Argued: September 23, 2008 Decided: October 22, 2008
Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and
Richard L. VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation.
Dismissed by unpublished per curiam opinion.
ARGUED: Paul M. Mayhew, BALTIMORE COUNTY OFFICE OF LAW, Towson,
Maryland, for Appellants. Terrell N. Roberts, III, ROBERTS &
WOOD, Riverdale, Maryland, for Appellees. ON BRIEF: John E.
Beverungen, County Attorney, BALTIMORE COUNTY OFFICE OF LAW,
Towson, Maryland, for Appellants. Robert G. Landolt, Columbia,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Officer Carlos Artson and his co-defendants (“defendants”)
appeal the district court’s denial of qualified immunity in a
§ 1983 action against them. We agree with plaintiffs that
defendants failed to properly raise their defense of qualified
immunity before the district court, and therefore dismiss the
appeal.
I.
At 4:30 a.m. on January 21, 2005, defendants, members of
the Baltimore County Police Department, executed a warrant at
the home of Cheryl and Charles Noel. Defendants had obtained
the warrant after finding evidence of personal drug use in trash
cans behind the Noel home. On the morning of the raid,
defendants opted to execute a “no-knock” entry because several
residents had prior criminal histories and two of the residents
owned registered handguns.
After breaking down the front door and detonating a flash-
bang grenade, seven officers entered the house. Four of the
officers ran upstairs to the bedroom where Cheryl and Charles
Noel were sleeping. Hearing the commotion, Cheryl Noel grabbed
her handgun and stood up out of bed. She was standing by the
bed with her gun pointed slightly downward at waist level when
two of the defendants kicked open the door and entered the room.
3
Defendant Artson quickly fired two shots at Cheryl Noel, who
slumped to the floor at the foot of the bed with her right arm
resting on the bed, approximately eight inches from the gun.
Artson told her to get away from the gun. At this point,
Charles Noel states that his wife remained motionless and
unresponsive, while Artson says that she continued to look at
the firing officer “like she’s trying to make a choice, make a
decision.” Artson states that Cheryl Noel moved her hand toward
the gun, prompting him to fire a third shot into her chest. The
coroner found that the third shot, unlike the first two, was
immediately fatal. The police later charged three residents of
the house with drug possession.
Cheryl Noel’s survivors filed a complaint against
defendants for damages under 42 U.S.C. § 1983 and under the
common law of Maryland. Following discovery, defendants filed a
Motion for Summary Judgment, which the district court denied on
September 6, 2007. Several days later, defendants wrote to the
district court to ask whether it had considered and ruled on the
qualified immunity issue and whether defendants could file
supplemental briefs on the issue. The court noted that
qualified immunity was not mentioned in the Motion for Summary
Judgment, but that it had considered the issue sua sponte and
concluded that “there were genuine issues of material fact as to
whether Defendants were entitled to qualified immunity” on both
4
the “no-knock” and third shot issues. The court did not accept
further briefing. Defendants then appealed the denial of
qualified immunity.
II.
On October 9, 2007, plaintiffs filed a motion to dismiss
defendants’ appeal on grounds that the defendants had waived
their claim of qualified immunity. We agree with plaintiffs
that defendants have waived their qualified immunity defense and
that the appeal must accordingly be dismissed.
Defendants mentioned the immunity defense briefly in their
Answer, but the defense only surfaced in the Reply to the
Plaintiffs’ Opposition to the Motion for Summary Judgment in
anything like a full-blown form. Defendants explain that they
did not discuss the defense earlier because they believed
plaintiffs’ underlying constitutional claims lacked merit.
Our cases have been consistent on one thing: that to be
preserved for appeal, the defense of qualified immunity must be
raised in a timely fashion before the district court. E.g.,
Sales v. Grant, 224 F.3d 293, 296-97 (4th Cir. 2000) (barring
the defendant from pursuing his qualified immunity defense when
he only cursorily mentioned the defense in his answer to a
§ 1983 complaint); Suarez Corp. Indus. v. McGraw, 125 F.3d 222,
226 (4th Cir. 1997) (barring the defendant from raising a
5
qualified immunity defense for the first time on appeal);
Buffington v. Baltimore County, 913 F.2d 113, 120-21 (4th Cir.
1990) (holding that a party had abandoned its qualified immunity
defense in a § 1983 action by not raising the issue clearly in
the motion for summary judgment).
The case on which defendants rely, Ridpath v. Board of
Governors Marshall University, 447 F.3d 292 (4th Cir. 2006), is
not to the contrary. Ridpath confirmed that “[g]enerally,
qualified immunity must be raised in an answer or a dismissal
motion,” but allowed for discretionary appellate review in some
circumstances. 447 F.3d at 305 (citing Fed. R. Civ. P. 8(c)).
In Ridpath, the court concluded that (1) the plaintiff was not
prejudiced by the district court’s consideration of the untimely
defense, because the court rejected the defense; (2) there was
no sign that the plaintiff sought to respond to the claim; and
(3) the plaintiff had fully addressed the qualified immunity
issue before the court of appeals. Id. at 306. But Ridpath is
clear that review of untimely claims is within the discretion of
the appellate court.
Here, plaintiffs would suffer prejudice because they had no
chance to address the issue in their opposition to summary
judgment. It was not until their reply to plaintiffs’
opposition to the summary judgment motion that defendants even
argued the immunity defense, and “[c]onsidering an argument
6
advanced for the first time in a reply brief . . . entails the
risk of an improvident or ill-advised opinion . . . .” McBride
v. Merrell Dow & Pharms., Inc., 800 F.2d 1208, 1211 (D.C. Cir.
1986). Our cases require that an affirmative defense be raised
in a timely fashion for a reason: what happened here deprived
plaintiffs of any chance to brief the question and receive a
fully considered ruling. The failure to raise the defense in a
timely fashion likewise deprived the district court of orderly
process and this court of the full benefit of the district
court’s reasoning. To permit appellate review in these
circumstances would reward parties who bypass settled procedural
requirements, and would encourage imprecise practice before the
trial courts. Accordingly, we decline to entertain this
interlocutory appeal and remand the action for further
proceedings in the district court.
DISMISSED
7