Taylor Quinn v. Christopher Zerkle ( 2024 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-2187
TAYLOR QUINN,
Plaintiff - Appellant,
v.
LIEUTENANT CHRISTOPHER K. ZERKLE; SERGEANT PAXTON LIVELY;
SERGEANT RICK KEGLOR; DEPUTY BRANDON KAY; DEPUTY JAMIE MILLER,
Defendants - Appellees.
No. 22-2188
MARK TOON, as Personal Representative of the Estate of Eric Toon
Plaintiff - Appellant,
v.
LIEUTENANT CHRISTOPHER K. ZERKLE, West Virginia State Police, in his
individual and official capacity; SERGEANT PAXTON LIVELY, Kanawha
County Sheriff, in his individual and official capacity; SERGEANT RICK
KEGLOR, Kanawha County Sheriff, in his individual and official capacity;
DEPUTY BRANDON KAY, Kanawha County Sheriff, in his individual and
official capacity; DEPUTY JAMIE MILLER, Kanawha County Sheriff, in his
individual and official capacity,
Defendants - Appellees.
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Appeals from the United States District Court for the Southern District of West Virginia,
at Charleston. Irene C. Berger, District Judge. (2:21-cv-00421; 2:21-cv-00427)
Argued: January 25, 2024 Decided: August 1, 2024
Before WILKINSON, GREGORY, and HEYTENS, Circuit Judges.
Reversed in part, affirmed in part, and remanded by published opinion. Judge Gregory
wrote the opinion, in which Judge Heytens joined. Judge Wilkinson wrote an opinion
concurring in part and dissenting in part.
ARGUED: William J. Forbes, FORBES LAW OFFICES, PLLC, Charleston, West
Virginia, for Appellants. Sylvester Allen Hill, Jr., CIPRIANI & WERNER, Charleston,
West Virginia; Michael Deering Mullins, STEPTOE LLP, Charleston, West Virginia, for
Appellees. ON BRIEF: Louis D. DiTrapano, Amanda J. Davis, CALWELL LUCE
DITRAPANO, PLLC, Charleston, West Virginia; Jennifer N. Taylor, FORBES LAW
OFFICES, PLLC, Charleston, West Virginia, for Appellants. Robert Lee Bailey, STEPTOE
& JOHNSON PLLC, Charleston, West Virginia, for Appellee Lieutenant Christopher Zerkle.
Allison Marie Subacz, CIPRIANI & WERNER, Charleston, West Virginia, for Appellees
Sergeant Paxton Lively, Sergeant Rick Keglor, Deputy Brandon Kay, and Deputy Jamie Miller.
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GREGORY, Circuit Judge:
In August 2019, Eric Toon led West Virginia State Trooper Lieutenant Christopher
K. Zerkle on an early morning high speed chase through Charleston, West Virginia, before
returning home to his sleeping girlfriend, Taylor Quinn. Lt. Zerkle arrived at Toon’s
residence moments after Toon and was later joined by Appellees Sergeant Paxton Lively,
Sergeant Rick Keglor, Deputy Brandon Kay, and Deputy Jamie Miller (“Kanawha
Deputies”). The Kanawha Deputies banged on or near Toon’s locked front door to
announce their arrival, while Lt. Zerkle and another officer formed a perimeter around the
house. The front door somehow unlocked and opened toward the Kanawha Deputies, who
then entered the house. Almost immediately, Toon broke his bedroom window and jumped
out of it armed with an AR-15. Toon and the rifle fell to the ground. Toon then rose to all
fours, grabbed the rifle and pointed it at another officer from the ground. That officer and
Lt. Zerkle opened fire, fatally wounding Toon, and injuring Quinn, who had followed Toon
out of the window.
Quinn and Toon’s estate (the “Estate”) separately asserted various claims related to
the Kanawha Deputies’ warrantless entry into the Toon residence, and Lt. Zerkle’s fatal
shooting of Eric Toon and non-fatal shooting of Taylor Quinn. The Kanawha Deputies
and Lt. Zerkle moved to dismiss, and the district court granted their motion in part and
denied it in part. After discovery, the Kanawha Deputies and Lt. Zerkle separately moved
for summary judgment on the remaining claims. The district court granted both motions
and Appellants now appeal.
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Because we conclude that factual disputes preclude summary judgment on
Appellants’ warrantless entry claims and Quinn’s excessive force, battery, and trespass
claims, we reverse the district court’s decision as to those claims. Without determining
whether the officers are entitled to qualified immunity as the district court held, we affirm
the court’s decision on all remaining claims on the grounds that there are no material disputes
of fact and therefore Appellees are entitled to judgment as a matter of law as to those claims.
I.
On the morning of August 1, 2019, Lt. Christopher Zerkle responded to a report of
a domestic violence incident. While en route to the location of the incident, Lt. Zerkle
observed two men, later identified as Eric Toon and Noah Sutherland, sitting on a parked
motorcycle in a private lot. Sutherland, the passenger, was not wearing a helmet, but Lt.
Zerkle saw no need to address the men because the motorcycle was not in motion. Lt.
Zerkle eventually found the couple who was involved in the domestic altercation and began
speaking to them.
While Lt. Zerkle was speaking to the couple, he noticed Toon and Sutherland
approaching him on the motorcycle. Sutherland still was not wearing a helmet, so Lt.
Zerkle pursued the motorcycle on that basis. Toon fled and led Lt. Zerkle on a chase at
speeds sometimes exceeding 100 MPH. At some point, Lt. Zerkle called in the pursuit,
which prompted a dispatcher to put out a BOLO (be on the lookout) to other state troopers
and Metro 911. Lt. Zerkle followed the motorcycle from 8:54 a.m. until 8:59 a.m., when
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he told dispatch that he lost sight of the motorcycle and was terminating the pursuit due to
traffic conditions.
Although he had formally terminated the chase, Lt. Zerkle continued to investigate
and quickly learned what neighborhood Toon lived in with the help of the couple from the
domestic dispute and others in the area. Toon and Sutherland arrived back at Toon’s house
at 9:12 a.m., ditched the motorcycle and ran inside. Lt. Zerkle arrived seconds later,
followed shortly thereafter by officers from the Kanawha County Sheriff’s Department and
Charleston Police Department. One of the officers on the scene located Toon’s motorcycle
and helmet with the help of his K-9 and tracked a scent to the front door of Toon’s house.
Lt. Zerkle and Charleston Police Officer Charles Whittington (“Cpl. Whittington”) then
knocked on Toon’s front door, but no one answered.
Meanwhile, inside the home, Quinn awoke to Toon toting an AR-15 and informing
her that officers had followed him home. J.A. 681; but see J.A. 814 (Sutherland’s
testimony that Toon did not arm himself before the officers entered the home). Quinn
suggested that they pray and that she speak to the officers. Toon refused her latter
suggestion and commanded that no one open the door or speak to the officers. Toon,
Quinn, and Sutherland watched footage of the officers on a TV in the bedroom that was
connected to cameras facing the front porch area, including the front door. At some point
while they were in the bedroom, Toon instructed Sutherland to check the front door to
ensure that it was locked. Sutherland left the bedroom twice to comply with that request.
Quinn and Toon never left the bedroom area.
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Outside the home, after Lt. Zerkle’s knock went unanswered, Lt. Zerkle and Cpl.
Whittington left the front porch, and the Kanawha Deputies convened on the porch while
Lt. Zerkle and Cpl. Whittington attempted to cover the perimeter of the home. With
Sergeant Keglor close by, Sergeant Lively initiated a K-9 “knock and announce,” yelling
“Kanawha County Sheriff’s Office, K-9, come out, call out, or we’ll send the dog, and he
will bite” while “banging on the door” or “on the side” of the home. J.A. 1193. Sgt. Lively
gave this announcement twice before he and the other officers heard movement on the
other side of the door. As Sgt. Lively attempted to make the announcement for the third
and final time, the door opened outward toward the Kanawha Deputies. They then entered
the home and split up in pairs in each direction.
When the Kanawha Deputies entered the house, Toon broke the bedroom window
using the AR-15 and jumped out of the broken window, rifle in hand. Toon and the gun
fell to the ground. While lying on the ground, Toon grabbed the gun and lifted it in Cpl.
Whittington’s direction. Lt. Zerkle and Cpl. Whittington then fired their weapons at Toon,
whose torso fell completely to the ground after the shots. Quinn, who followed Toon out
of the broken window, testified that she blacked out before jumping from the window and
when she regained consciousness, she was lying on the ground bleeding. J.A. 690. She
further testified that she did not recall any shots being fired before she jumped out the
window but that she believed she was shot while still in the window or in the air. J.A. 684–
85. According to Quinn, Sutherland did not jump out of the window until he was instructed
by officers to do so and, although he was not injured, he somehow had blood on his pants
leg. J.A. 688.
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II.
Quinn filed a lawsuit in the Circuit Court for Kanawha County, West Virginia, and
Appellees removed that case to the United States District Court for the Southern District
of West Virginia. Mark Toon, as personal representative of the Estate, filed a separate
lawsuit in the district court and the court consolidated the cases. The district court later
dismissed some of the claims Appellants asserted for failure to state a claim and set a
discovery schedule for the following claims:
• The Estate’s § 1983 warrantless entry claim against Lt. Zerkle
(premised on a bystander liability theory) and the Kanawha Deputies;
• The Estate’s § 1983 excessive force claim against Lt. Zerkle;
• Quinn’s §1983 warrantless entry and state law trespass claims against
the Kanawha Deputies; and
• Quinn’s §1983 excessive force and state law battery claims against Lt.
Zerkle.
Following discovery, the Kanawha Deputies and Lt. Zerkle separately moved for summary
judgment on all remaining claims asserted against them. Quinn and Toon opposed the
motions, contending that various disputes of fact prohibited summary judgment.
The district court granted both motions for summary judgment. The court found
that the officers banged on the locked door and announced their presence before the door
opened outward toward them. Quinn v. Zerkle, No. 2:21-CV-00421, 2022 WL 15316600,
at *7 (S.D.W. Va. Oct. 26, 2022). The court concluded that, under those circumstances,
any reasonable officer would have believed that someone in the house opened the door and
granted consent in response to the knock and announce. Id. Specifically, the court said:
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Whether the door was somehow jostled open, opened by the rumored giant
rats that Ms. Quinn testified prompted her and Mr. Toon to set a bear trap in
their kitchen, or deliberately opened by one of the occupants of the house
intending for the officers to enter while they fled through the window, the
relevant facts are those perceived by the officers at the time. They perceived
that the previously locked door opened in response to their knock and
announce.
Id. The court recognized that an open door does not necessarily grant consent because a
person may open a door for several reasons. Id. However, it found that because the door
opened without anyone waiting on the other side to clarify the scope of consent, anyone in
the officers’ position would presume that someone opened the door then stepped back into
the darkened house away from the entrance permitting them to enter. Id.The court also held that even if the Kanawha Deputies unlawfully entered Toon’s
home, they were entitled to qualified immunity because it was not clearly established in
the Fourth Circuit that someone opening a door in response to a knock and announce, then
stepping away from the door’s entrance, would not constitute implied consent to enter. Id.
at *8. Having determined that the entry was constitutional and that the Kanawha Deputies
were entitled to qualified immunity, the court granted summary judgment on Appellants’
§ 1983 warrantless entry claims and Quinn’s state law trespass claim. Id. It also
determined that the Estate’s warrantless entry claim against Lt. Zerkle premised on his
failure to intervene to prevent the warrantless entry likewise failed. Id.
The court then turned to the parties’ excessive force claims. It said that Toon’s
claim was “frankly, not a close call” because it was “difficult to imagine” an officer who
would not feel threatened and respond in kind to the threat the armed Toon presented. Id.
at *9. According to the court, Lt. Zerkle (and Cpl. Whittington who was not a defendant
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in the case below) used force only after Toon, who was aware that officers were at his
home to pursue him, jumped out of the window holding an AR-15 and raised the rifle in
Cpl. Whittington’s direction. Id. The court noted that while its view of Toon’s arguments
may have been different if Toon was not armed, given that Toon pointed the gun at an
officer, there was no material dispute regarding whether Lt. Zerkle reasonably used deadly
force against him. Id.
Recognizing that Quinn’s excessive force claim was more complicated because it
was undisputed that she was unarmed and did not pose a threat to anyone, the court
ventured to determine whether Quinn “presented evidence that would permit a jury to find
that Lt. Zerkle intended to shoot her.” Id. at *10. The court found that all shots were fired
within two seconds, Quinn “had fully exited the window and gotten to her feet within ten
seconds of the shooting,” and Quinn was shot in the back/shoulder, which the court said
was “consistent with her facing the house as she dropped from the window.” Id. According
to the court, on these facts, no reasonable juror could conclude that Lt. Zerkle saw Quinn
and intentionally shot at her during the encounter. Id.
Instead, it said, “[t]he only reasonable inference from the facts presented is that Ms.
Quinn exited the window seconds after Eric Toon and was dropping to the ground behind
him at the same time Cpl. Whittington and Lt. Zerkle opened fire.” Id. The court therefore
found that Quinn was not Lt. Zerkle’s intended target and was instead accidentally injured
by his reasonable use of force on Toon. Id. Based on those findings, the court granted Lt.
Zerkle summary judgment on Appellants’ excessive force claims and Quinn’s battery
claim. It also granted the Kanawha Deputies summary judgment on Toon’s bystander
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liability claim premised on their alleged failure to intervene to prevent the fatal shooting.
Id. at *11. Quinn and the Estate timely appealed.
III.
We review district court decisions on motions for summary judgment and qualified
immunity de novo. See Franklin v. City of Charlotte, 64 F.4th 519, 529 (4th Cir. 2023).
In deciding such motions, “we may not credit the movant’s contrary evidence, weigh the
evidence, or resolve factual disputes in the movant’s favor, even if a jury could well believe
the evidence forecast by the movant.” Aleman v. City of Charlotte, 80 F.4th 264, 297 (4th
Cir. 2023). Rather, we must view the undisputed facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party to determine whether there is
a genuine dispute as to any material fact. See Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc). A material fact is one that “might affect the outcome of the suit under the
governing law,” and a genuine dispute exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In deciding this appeal, we must draw all reasonable inferences in
favor of the Estate and Quinn to determine whether there are any facts that could lead a
jury to find in their favor.
IV.
Section 1983 provides a vehicle for plaintiffs to assert claims against anyone who,
under the color of law, subjects them to “the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983.
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Law enforcement officers sued in their individual capacities under § 1983 may rely on the
doctrine of qualified immunity, which protects government officials from “bad guesses in
gray areas and ensures that they are liable only for transgressing bright lines” in defense of
their actions. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (internal quotation
marks omitted). Successful invocation of qualified immunity shields the officer from
liability, provided his conduct did not transgress “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Franklin 64 F.4th
at 529–30. Our job in reviewing an award of qualified immunity at the summary judgment
stage “is to consider whether there are any material disputes of fact . . . that, when resolved,
would amount to the violation of a clearly established constitutional right. If there are,
summary judgment is inappropriate.” Id. (quoting Stanton v. Elliott, 25 F.4th 227, 234 (4th
Cir. 2022) (internal quotations and citations omitted).
A.
The Fourth Amendment prohibits violations of one’s right to be secure against
“unreasonable searches and seizures.” Lange v. California, 141 S. Ct. 2011, 2017 (2021).
Reasonableness is “the ultimate touchstone of the Fourth Amendment.” Brigham City v.
Stuart, 547 U.S. 398, 403 (2006). In the context of searches or seizures of a person’s home,
reasonableness “generally requires the obtaining of a judicial warrant,” Riley v. California,
573 U.S. 373, 382 (2014) (internal quotation marks omitted), though that requirement is
not absolute. Brigham City, 547 U.S. at 403 (The “warrant requirement is subject to certain
exceptions.”). Valid consent is one recognized exception to the general prohibition against
warrantless entries into one’s home. Trulock v. Freeh, 275 F.3d 391, 401 (4th Cir. 2001).
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Validity is determined based on the totality of the circumstances and exists only where an
individual knowingly and voluntarily grants his consent. Id. (“Consent to search is valid
only if it was knowing and voluntary and courts assess validity based on the totality of the
circumstances.”) (quotations omitted). Where an officer maintains that the consent on
which he relied was implied, we ask “what would the typical reasonable person have
understood by the exchange between the officer and the suspect?” United States v. Neely,
564 F.3d 346, 350 (4th Cir. 2009) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991).
The Kanawha Deputies entered Toon’s home when the previously locked front door
opened toward them before they completed their third and final knock and announce. They
contend that the door opening was enough evidence of consent for them to enter the home,
although they had not interacted at all with the individuals inside the home. Under the
Kanawha Deputies’ theory, any officer would be authorized to enter a person’s home
simply because the door opened after the officer knocked. This would be true even if the
person opened his door following a knock to determine the knocker’s identity and the
reason for the knocker’s visit. And it would remain true if the door opened because of the
wind, a child, a pet, or simply because the lock malfunctioned.
The potential implications of this theory are especially troubling considering that
some modern locks are electronic, battery operated, and/or controlled remotely (using apps,
for example). Under this theory, if a technological failure causes a door with an electronic
lock to open, an officer who happens to be waiting to question or arrest a suspect in that
home would be free to enter without any affirmative sign of consent from the occupants
simply because the door opened. Once inside, the officer could look for the suspect, or
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otherwise roam around the house under the presumption of implied consent that the
Kanawha Deputies would have us create here. This line of reasoning cannot stand under
the Fourth Amendment, which prohibits warrantless entries into anyone’s home with few
exceptions, and therefore must be rejected. Brigham City, 547 U.S., at 403.
What’s more, we also reject the Kanawha Deputies’ proposition for another reason—
it requires us to impermissibly weigh the evidence and draw inferences in the Kanawha
Deputies favor. It is not our role (nor that of the district court) to weigh the facts or adopt
the Kanawha Deputies account of the events as the only possible conclusion. In fact, at this
stage of the litigation, even if a reasonable juror could conclude that the Kanawha Deputies
believed that someone unlocked the door, summary judgment is precluded here if evidence
in the record could persuade the same juror otherwise. That is, Appellants’ claims must
survive if the evidence in the record supports them. We find that it does.
It is undisputed that the door was locked when Lt. Zerkle and Cpl. Whittington
initially approached it and when Sgt. Lively began to knock and announce. It is also
undisputed that Sgt. Lively knocked and announced twice and that the door opened
outward as he tried to conduct the third and final knock and announce. According to the
record, one knock and announce consists of announcing the officers’ presence while
“banging on the door or the wall near the door three times.” J.A. 258. It is therefore
undisputed that Sgt. Lively banged on or near the door at least six times before the door
opened. We also know that Lt. Zerkle knocked on the door at least once. J.A. 455.
Witnesses for both parties testified that the door and lock at issue here were atypical.
Quinn testified that Toon made the lock himself. Quinn said the lock closed by “slid[ing]
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shut” and consisted of a “hole in the wall with a breaker bar,” “a bolt twisted,” and a “little
piece of metal welded to the front door to keep the bolt in place.” J.A. 735.
As a threshold matter, should a juror find Quinn credible, the juror could conclude
that Toon explicitly expressed that he did not want the officers in his home. That alone
could refute the officers’ claims of consent at least as it pertains to the Estate’s warrantless
entry claim. See Georgia v. Randolph, 547 U.S. 103, 106 (2006) (holding that “a physically
present co-occupant’s stated refusal to permit entry . . . render[ed a] warrantless search
unreasonable and invalid as to him.”). Moreover, drawing all inferences in Appellants’
favor, one could conclude that the officers were aware that the flimsy door could not
withstand the amount of pressure they applied and opened because of their repeated
banging on or near the door, Sgt. Lively’s pull on it, see J.A. 930, the force from his last
knock, or something else, and therefore not because someone inside unlocked it. Under
that interpretation of the facts, a reasonable juror could conclude that the Kanawha
Deputies did not reasonably believe that they had consent to enter the home and did so
anyway in violation of the Fourth Amendment. Because that account of the events is
supported by the record, the district court erred in concluding that the Kanawha Deputies’
account was the only reasonable inference one could draw from the evidence.
Moreover, even if someone inside the home had unlocked the door, that fact alone
is insufficient to demonstrate implied consent. Although we have not had the opportunity
to address this scenario before now, we find the principles articulated by the Supreme Court
in Lange v. California, in the context of the hot pursuit exception, persuasive on this issue.
141 S.Ct. 2011, 2016 (2021) (holding that pursuit of a suspected misdemeanant does not
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present an exigent circumstance and therefore does not justify a warrantless entry into a
suspect’s home, absent another Fourth Amendment exception).
As the Supreme Court explained, it is well-established that “when it comes to the
Fourth Amendment, the home is first among equals.” Id. at 2018 (citation and quotation
omitted). That “centuries-old principle,” the Court said, flows from our nation’s English
roots in which a man’s house was his castle, entitled to special protection, including
freedom from warrantless entry. Id. at 2018, 2023. The Court held that, while in some
cases the circumstances of a pursuit may present an emergency that justifies warrantless
entry, generally, an officer must obtain a warrant prior to entering a suspected
misdemeanant’s home, even where the suspect has fled. Id. at 2021–22.
The Kanawha Deputies do not contend that they entered the home in hot pursuit of
Toon for any crimes. In fact, they explicitly denounce the hot pursuit theory, stating that
it is irrelevant to this appeal, and elect instead to rely solely on implied consent to proclaim
the constitutionality of their actions. Resp. Br. 1. That consent, they argue, was understood
because the door opened toward them. Under that theory, the opened door here is no
different than the open garage in Lange, and, as in Lange, the officers entered Toon’s home
simply because there was an opportunity to do so. Nevertheless, the Kanawha Deputies
urge us to disregard the rationale articulated in Lange and conclude that an officer may
invite himself into one’s home, without ever interacting with the owner or anyone else,
whenever presented with an opportunity to do so, unless of course he is in pursuit of a
suspected misdemeanant.
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Not only does that proposition contradict our precedent which requires us to
determine the reasonableness of an officer’s belief based on an exchange between the
officer and another person, Neely, 564 F.3d at 350, it defies common sense. Indeed, as the
district court recognized, a person opening a door does not constitute consent to enter
because anyone “might open a door in response to a knock, expecting the person on the
other side of the threshold to explain the reason for their visit prior to determining whether
to invite them in.” Quinn at *7. It also defies logic under the Supreme Court’s decision in
Lange. The Kanawha Deputies essentially invite us to establish that only the pursuit of a
suspected misdemeanant precludes law enforcement from entering a suspect’s home
through an open entry point without first having an interaction with anyone from which the
officer could infer consent to enter the home. Acceptance of such an invitation would
require us to assume that the Constitution affords a protection to one suspected of a crime
that it denies one who is not. We decline to make such an illogical assumption. For those
reasons we find the Kanawha Deputies’ arguments unpersuasive and conclude that officers
may not assume consent to enter a suspect’s home simply because a door opens.
Finally, even if someone inside the home had unlocked and opened the door
intending to grant the officers consent, a reasonable juror could still conclude that the
officers’ entry was unjustified and unconstitutional on the facts of this case. As indicated
above, only valid, voluntary consent is an exception to the general prohibition against
unreasonable seizures. Trulock, 275 F.3d at 401; see also Georgia v. Randolph, 547 U.S.
103, 106 (2006) (stating that warrantless entry is permitted where “police obtain the
voluntary consent of an occupant who shares, or is reasonably believed to share, authority
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over the area in common”). “Voluntariness is a question of fact to be determined from all
the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973). And an
individual who grants consent under duress or threats of physical harm cannot be said to
have done so voluntarily. See United States v. Azua-Rinconada, 914 F.3d 319, 324 (4th
Cir. 2019) (stating that “[t]he question whether consent to search is voluntary — as distinct
from being the product of duress or coercion, express or implied — is one of fact to be
determined from the totality of all the circumstances”).
Here, Sgt. Lively yelled “Kanawha County Sheriff’s Office, K-9, come out, call out,
or we’ll send the dog, and he will bite” as he knocked on the door. J.A. 258, 514. One
could conclude that anyone who may have opened the door did so not of his own volition,
but to avoid being bitten by Sgt. Lively’s dog for failure to acquiesce to Sgt. Lively’s
commands. Under that interpretation of the facts, a reasonable juror could conclude that
while an occupant may have intended to grant consent, the consent was invalidated by the
threat. See Bumper v. State of North Carolina, 391 U.S. 543, 548–49 (1968) (The
government cannot prove consent “by showing no more than acquiescence to a claim of
lawful authority.”).
i.
The Kanawha Deputies contend that even if this Court concludes that their
understanding of consent was unsound, as we have, they are still entitled to qualified
immunity. This is so, they say, because we have not addressed a factually analogous case
sufficient to establish that entering a residence when a previously locked door opens in
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response to officers knocking, but no one comes to the door or interacts with the officers
in anyway, violates the Fourth Amendment.
The Kanawha Deputies’ contention overstates the facts and misapprehends the law.
As to the facts, they maintain that the door opened in response to their knocking, but the
record supports only the conclusion that it opened following the officers’ knocking.
Compare Resp. Br. 34, with e.g., J.A. 512 (“Sergeant Lively starts his third callout. And
then when he knocks on the door, the door goes open.”). The former suggests a causal
connection that we cannot infer at this stage of the litigation, while the latter merely states
what happened. With respect to the law, the Kanawha Deputies seem to misunderstand
what it means for a right to be “clearly established” to prevent a qualified immunity
defense. Contrary to their suggestion, we need not have recognized a right on identical
facts for it to be deemed clearly established. Aleman v. City of Charlotte, 80 F.4th 264,
295 (4th Cir. 2023). Rather, we will deny a claim of qualified immunity where we
determine that officers in the Fourth Circuit have been provided “fair warning, with
sufficient specificity,” that their actions would violate the Constitution. Id.As noted above, the right against warrantless searches and seizures has been a part
of our nation’s values since its founding. Lange, 141 S. Ct. at 2022–23. Given the
importance of this right, it is enforced subject to very few exceptions, which must be
adequately demonstrated on the record to justify any deviation from the general
prohibition. Id. at 2018–19. This Court has recognized implied consent only where it
could be inferred based on conduct of the suspect or another occupant in the presence of
the officer. Indeed, in each of the cases in which we have recognized implied consent, the
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officers’ understanding was premised on an interaction with a person presumed to have
authority to consent. See Hylton, 349 F.3d at 786 (finding consent where girlfriend moved
from the couch to permit an officer to search under it); United States v. Wilson, 895 F.2d
168, 170 (4th Cir.1990) (finding consent where defendant raised his arm after agent asked
him permission for a pat down search); United States v. Wilson, 895 F.2d 168, 170 (4th
Cir.1990) (finding consent where defendant raised his arms after agent asked permission
to pat him down). And, as noted above, we have explicitly stated that the appropriate
inquiry in this context is “what would the typical reasonable person have understood by
the exchange between the officer and the suspect?” Neely, 564 F.3d at 350. It was therefore
well established in August 2019 that implied consent must be based on inferences an officer
draws from the conduct of someone at least presumed to have the ability to authorize
consent.
It was also settled that consent is not voluntary where it is the product of duress.
See Azua-Rinconada, 914 F.3d at 324 (recognizing that consent that is the product of
“duress or coercion” is not voluntary); see also United States v. Lattimore, 87 F.3d 647,
650 (4th Cir. 1996) (stating that “the conditions under which the consent to search was
given (such as the officer’s conduct; the number of officers present; and the duration,
location, and time of the encounter)” are relevant in determining whether the consent was
voluntary). Against that backdrop, a reasonable officer in the Kanawha Deputies’ position
should not have concluded that a previously locked door opening toward them, without
more, constituted implied consent to enter the home. The Kanawha Deputies are therefore
not entitled to qualified immunity.
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B.
The Estate asserts a bystander liability claim against Lt. Zerkle on the grounds that
Lt. Zerkle failed to intervene to prevent the Kanawha Deputies’ warrantless entry into
Toon’s home. The district court dismissed this derivative claim without assessing it on the
merits because it held that the Kanawha Deputies’ entered the home with consent and thus
that their entry was constitutional. Because we disagree with the court’s conclusion on
Toon’s warrantless entry claim, we now assess his failure to intervene claim on the merits.
“The concept of bystander liability is premised on a law officer’s duty to uphold the
law and protect the public from illegal acts, regardless of who commits them.” Randall v.
Prince George’s Cnty., Md., 302 F.3d 188, 203 (4th Cir. 2002). It establishes that “one
who is given the badge of authority of a police officer may not ignore the duty imposed by
his office and fail to stop other officers who summarily punish a third person in his presence
or otherwise within his knowledge.” Id. at 203–04. An officer may only be held liable
under a bystander liability theory in connection with a constitutional violation where the
officer knows that a fellow officer is violating an individual’s rights, has a reasonable
opportunity to prevent the violation, and chooses not to intervene. Id.It is undisputed that the door was locked when Lt. Zerkle and Cpl. Whittington
initially knocked on it, and that Lt. Zerkle did not believe that he had a constitutional basis
to enter the residence at the time that he knocked. The Estate makes much of these facts
insinuating that because Lt. Zerkle knew that he did not have a basis to enter, it must
necessarily follow that he knew that the Kanawha Deputies could not enter either. See
Resp. Br. 42. The Estate did not cite a single legal authority to support its position or direct
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this Court’s attention to any facts suggesting that Lt. Zerkle had actual knowledge that the
Kanawha Deputies’ entry into the residence was unconstitutional as required to save his
claim. That alone is sufficient to affirm the district court’s decision.
Furthermore, even if we inferred Lt. Zerkle’s knowledge from his determination that
he could not force entry into the home, as the Estate urges us to do, its claim would still
fail because it has not proffered facts sufficient to demonstrate that Lt. Zerkle had a
reasonable opportunity to prevent the Kanawha Deputies from entering the home.
According to the record, the Kanawha Deputies entered the home immediately after the
front door opened outward, when Sgt. Lively attempted to complete his final knock and
announce. At that time, Lt. Zerkle was on the perimeter of the home with his sights on the
bedroom window that Toon ultimately broke and escaped through. Nothing in the record
suggests that Lt. Zerkle could have prevented the Kanawha Deputies actions between the
time the door opened and the time they entered. The Estate’s bystander liability claim
therefore fails.
C.
Next, Appellants both assert an excessive force claim. A claim that a law
enforcement officer used excessive force—deadly or not—during any seizure of a person
is analyzed under the Fourth Amendment reasonableness standard. Franklin, 64 F.4th at
530–31. In this context, the reasonableness of use of force is determined based on the
factors announced by the Supreme Court in Graham v. Connor: (1) “the severity of the
crime”; (2) “whether the suspect poses an immediate threat to the safety of the officers or
others”; and (3) “whether he is actively resisting arrest or attempting to evade arrest.” 490
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U.S. 386, 396 (1989). Ultimately, we must determine whether the officer had probable
cause to believe that the suspect posed an imminent threat of serious physical harm to
anyone at the very moment the deadly force was used. See Stanton v. Elliott, 25 F.4th 227,
233–34 (4th Cir. 2022). Excessive force analyses are fact specific, and the second Graham
factor is particularly significant where the force was deadly. Franklin, 64 F.4th at 531.
It is undisputed that Toon jumped out of his bedroom window holding an AR-15.
Nevertheless, the Estate argues that the officers should not have used deadly force against
Toon because he did not pose an immediate threat to their safety, never made it to his feet,
and did not raise the rifle before being shot. Fatal to its claim, The Estate’s interpretation
of the record is belied by Cpl. Whittington’s body cam footage, which shows Toon on the
ground pointing an AR-15 in Cpl. Whittington’s direction.
We have consistently held that an officer need not wait until a gun is pointed at him
to act. See Anderson v. Russell, 247 F.3d 125 (2001); see also Stanton v. Elliott, 25 4th 227,
234 (4th Cir. 2022) (“A police officer need not wait for a suspect to shoot before using deadly
force.”). A natural corollary to that rule is that an officer is entitled to use deadly force when
a rifle is pointed directly at him or another officer in his presence. Lt. Zerkle and Cpl.
Whittington opened fire on Toon after Toon pointed a rifle in Cpl. Whittington’s direction.
Because it was reasonable for Lt. Zerkle to use deadly force to prevent Toon from shooting
a fellow officer, he is entitled to summary judgment on Toon’s excessive force claim.
The same cannot be said with respect to Quinn’s claim. Lt. Zerkle maintains that
he accidentally shot Quinn when he lawfully shot at Toon. If true, this fact would legally
preclude Quinn’s excessive force claim because liability under § 1983 must be premised
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on a state actor’s intentional unconstitutional conduct. Schultz v. Braga, 455 F.3d 470, 480
(4th Cir. 2006) (“[A] seizure within the meaning of the Fourth Amendment always requires
an intentional acquisition of physical control, it does not extend to accidental effects or
unintended consequences of government action.”) (internal quotations and citation
omitted). Thus, Lt. Zerkle cannot be held liable under § 1983 for injuries Quinn sustained
from bullets he intended for Toon. Although Lt. Zerkle’s position finds some support in
the record, his account presents but one conclusion a reasonable juror could come to.
Because the record also supports the conclusion that Lt. Zerkle intentionally shot an
unarmed Quinn as she exited or fell from the window, Quinn’s claim must proceed.
Cpl. Whittington testified that the bedroom window Toon and Quinn jumped from
was approximately eight feet above the ground. J.A. 1522–23. His body camera shows
Toon collapse while on the ground and shows Quinn on her feet after the shooting before
she stumbles and falls to the ground. Sutherland testified that it was not possible for Toon
and Quinn to exit the window simultaneously because of Toon’s size. J.A. 811. The parties
agree that Quinn jumped out of the window only seconds after Toon, and that all shots were
fired within a matter of seconds. Quinn testified that she jumped out of the window feet first,
was shot in the right shoulder/back area, and that her blood was on Sutherland’s pants, even
though he did not jump out of the window until after the shooting. J.A. 684–85, 688.
The record before us could support the conclusion that Lt. Zerkle aimed at and
intentionally shot Quinn. Lt. Zerkle maintains that he shot only at Toon who we know was
on the ground. It is not clear whether Quinn was shot while she was in the window eight
feet above the ground, in the air falling from the window, standing upright on the ground,
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or in another position altogether. However, given that we do not know Quinn’s position at
the time she was shot, it is plausible that Quinn was far enough from Toon when she was
shot, that she would not have been hit by a stray bullet meant for him. For example, if
Quinn was standing upright, her right back or shoulder (where she was shot) would have
been several feet above the ground and above Toon, the alleged intended target.
Alternatively, a reasonable juror might infer that Quinn was shot while standing in the
window based on her testimony that her blood was on Sutherland’s pant leg and that he did
not jump out of the window until the officers directed him to do so. Under either scenario,
one could conclude that Lt. Zerkle aimed above the ground and shot Quinn, thereby
rendering his use of force against her intentional and potentially unconstitutional. *
V.
The district court dismissed Quinn’s state law claims on the same grounds that it
granted summary judgment on the related federal claims. See e.g. Quinn v. Zerkle, 2022 WL
* We pause here to note that our discussion of whether Lt. Zerkle intentionally shot
Quinn does not suggest that our Court will consider an officer’s underlying motive or intent
in assessing whether the officer reasonably employed force. To clarify, at issue in this
case, is whether a reasonable juror could conclude that Quinn was not shot accidentally or
hit by a bullet meant for Toon, not Lt. Zerkle’s subjective reason for shooting Quinn. Thus,
this case concerns whether Lt. Zerkle at all intended to seize or use excessive force against
Quinn and does not alter our long-standing principle that “[s]ubjective factors involving
the officer’s motives, intent, or propensities are not relevant” to our excessive force
analysis. Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994) (“Subjective factors involving
the officer's motives, intent, or propensities are not relevant.”); see also Henry v. Purnell,
652 F.3d 524, 535 (4th Cir. 2011) (stating that “an officer’s good intentions do not make
objectively unreasonable acts constitutional.”); Jones v. Buchanan, 325 F.3d 520, 527 (4th
Cir. 2003) (“We do not consider the officer’s intent or motivation.”).
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15316600, at *8 (granting summary judgment on Quinn’s trespass claim after finding that
the Kanawha Deputies entered the Toon residence with consent); id. at 11 (granting summary
judgment on Quinn’s battery claim based on its determination that there was no evidence
that Lt. Zerkle intended to shoot Quinn). Having determined that the district court erred in
dismissing Quinn’s warrantless entry and excessive force claims, we now assess her state
law trespass claim against the Kanawha Deputies and battery claim against Lt. Zerkle.
Under West Virginia law, a trespasser is “one who goes upon the property or
premises of another without invitation, express or implied, and does so out of curiosity, or
for his own purpose or convenience, and not in the performance of any duty to the owner.”
Ragonese v. Racing Corp. of W. Virginia, 234 W. Va. 706, 710 (2015). It is clear from the
record that the Kanawha Deputies entered Toon’s home for their own purposes and not in
service to Toon and Quinn. Thus, as was the case with its § 1983 counterpart, whether the
trespass claim survives depends on whether the Kanawha Deputies had consent to enter
Toon’s home. Because the analysis at this stage is materially identical, the parties’ trespass
claims must proceed for the reasons we articulated above with respect to their § 1983
warrantless entry claims. The Kanawha Deputies are also not entitled to qualified
immunity under West Virginia law, which applies the federal standard. See Robinson v.
Pack, 223 W. Va. 828, 834 (2009) (stating that an officer will be immune from personal
liability “if the involved conduct did not violate clearly established laws of which a
reasonable official would have known”).
Similarly, because we cannot determine whether Lt. Zerkle intentionally shot
Quinn, his challenge to her battery claim fails for the same reasons we articulated with
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respect to her excessive force claim. A person may be liable for battery in West Virginia
if he “acts intending to cause a harmful or offensive contact with the person of the other or
a third person” and “a harmful contact with the person of the other directly or indirectly
results.” W. Virginia Fire & Cas. Co. v. Stanley, 216 W. Va. 40, 51 (2004). Thus, if the
jury concludes that Lt. Zerkle intentionally shot Quinn, he may be held liable for battery
under West Virginia law. He could also be liable if the jury concludes that he intended
only to shoot Toon because Quinn’s injuries resulted from his intent to harm a third person.
Thus, even under Lt. Zerkle’s interpretation of the facts, he could be liable for battery under
West Virginia law irrespective of whether he is liable under federal law. Quinn’s battery
claim therefore also survives.
VI.
For the foregoing reasons, we reverse the district court’s decision regarding
Appellants’ § 1983 warrantless entry claim against the Kanawha Deputies, Quinn’s § 1983
excessive force and state law battery claims against Lt. Zerkle, and Quinn’s state law
trespass claim against the Kanawha Deputies. We affirm the court’s decision regarding
the Estate’s § 1983 claims excessive force and failure to intervene against Lt. Zerkle. We
remand for further proceedings consistent with this opinion.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED
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WILKINSON, Circuit Judge, concurring in part and dissenting in part:
I concur in those parts of the majority opinion rejecting Toon’s claims of excessive
force and bystander liability. I also concur in that part of the opinion denying qualified
immunity on the issue of the homeowner’s consent to the search. It is well established that
consent need not be verbal to be valid. See United States v. Hylton, 349 F.3d 781, 786 (4th
Cir. 2003). But here, there was a lack of objective manifestation of consent to justify the
officers’ entry into the home.
We do not know why the door to Toon’s home was open. Perhaps the door was
loosely hinged or imperfectly locked. Perhaps some cherubic breeze nudged it open.
Perhaps the door was popped open by the officers’ incessant banging. Perhaps it is best
that the mystery of the open door remain a mystery until it is solved by a jury. Regardless,
the mystery in its present state is insufficient to denote consent. And without a showing of
consent, the officers are not entitled to qualified immunity on their entrance into Toon’s
abode. See Welsh v. Wisconsin, 466 U.S. 740, 748 (1984).
The issue of the shooting of Toon and Quinn, however, is an entirely different
matter. Because the record shows that Lieutenant Zerkle hit Quinn in the course of his
justified shooting of Toon, he is entitled to judgment.
As an initial matter, we are all in agreement that the lethal shooting of Toon—who
in that moment posed an imminent deadly threat to the officers—was justified. Toon
attempted to evade officers by jumping out of his bedroom window, but not before
grabbing his AR-15 rifle. As he tumbled out the eight-foot-high window, he fell to the
ground and his rifle pointed up towards Corporal Whittington. We therefore agree with the
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district court that it is beyond dispute that Zerkle was entitled to use deadly force under
these circumstances.
Where my colleagues and I depart, however, is on the shooting of Quinn. Quinn and
Toon were shot at the same time, in the same place, in the same manner, and with the same
purpose. While this formulation is often used to judge the reasonableness of state regulation
of expression, it seems useful here in judging the objective reasonableness under the Fourth
Amendment of the application of excessive force.
Zerkle shot Quinn when he shot Toon. The body camera footage, audio evidence,
and expert testimony all make plain that all shots fired by officers on the scene—including
the shots that killed Toon and injured Quinn—were fired within two seconds. It is not
reasonable to project intent when the scenario unfolded before the officer in the blink of an
eye. The shooting occurred in the same place, as Quinn had slipped out of the window
immediately after she saw Toon go through it with his rifle. And all bullets were fired in
the same manner, a single burst of fire, for the same purpose: to end the deadly threat posed
by the suspect who was pointing his AR-15 towards Whittington. Because the shooting
was a single event with a singular time, place, manner, and purpose, it was justifiable.
Zerkle had no time to sort through the obvious threat the situation posed. Suddenly
confronted with a suspect dropping from above with a high-powered rifle, Zerkle had to
orient, decide, and act within a very compressed timeframe. It is quite unfair for our judicial
system to spend months massaging the split-second decision that Zerkle made to protect
his life and that of Corporal Whittington.
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When officers have the luxury of time, they may be held to higher standards. But
we cannot require those whom society expects to confront danger on its behalf to make
finely parsed distinctions in “tense, uncertain, and rapidly evolving” situations with deadly
consequences. Graham v. Connor, 490 U.S. 386, 396–97 (1989). Here, the officers acted
instantaneously to protect their lives. It is wrong to second-guess their actions. What law
is this that requires those who enforce the law to risk their very lives in the service of it?
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