Estate of Rodgers v. Smith

188 F. App'x 175

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 26, 2006
• Docket: 05-1382
• Status: Unpublished

Opinions

WILKINS, Chief Judge:

The Estate of Tarik K. Rodgers (the Estate) brought this federal civil rights action, see 42 U.S.C.A. § 1983 (West 2003), claiming violations of the Fourth Amendment in connection with the death of Tarik Rodgers (Rodgers). The Estate now appeals a decision of the district court granting summary judgment, on the basis of qualified immunity, to certain of the defendants.¹ For the reasons set forth below, we affirm.

I.

The pertinent facts, viewed in the light most favorable to the Estate, see Wilson v. Flynn, 429 F.3d 465, 466 (4th Cir.2005), are as follows. On April 14, 2002, a Martin County, North Carolina Sheriff’s deputy served a restraining order on Rodgers. The order prohibited Rodgers from coming into contact with his girlfriend, Angela Freeman, and their two children.

At approximately 10:00 that evening, Rodgers drove to Freeman’s house and abducted her at gunpoint. He drove her to a remote area, where they discussed the protective order. After resolving their differences, they engaged in consensual sex. Rodgers was upset about his conduct that evening and wondered aloud to Freeman how he was going to explain himself to their children. At one point he asked Freeman to shoot him, but she refused.

Around midnight, Rodgers drove by Freeman’s home to see if any police officers were there. (Although Rodgers had warned those present in Freeman’s home not to call the police, the police had nevertheless been contacted and informed that Rodgers had abducted Freeman at gunpoint.) Rodgers eventually passed a patrol car and “took off.” J.A. 93 (internal quotation marks omitted). A high-speed chase ensued that involved Martin County Deputy Sheriff Walter Farrow and City of Williamston, North Carolina police officers William Waters, Elvie Forney, Melanie Cox, and Charles Brown. The chase, which continued until nearly 2:00 a.m. on the morning of April 15, was later joined by Scott McFarland, a plainclothes narcotics officer from another jurisdiction. The officers engaged in the chase were aware that Rodgers had abducted Freeman and that he was considered armed and dangerous.

Rodgers ended the chase by stopping abruptly in a parking lot, causing Officer Waters to crash into the rear of Rodgers’ vehicle. Officer Waters exited his vehicle with his trained police dog. Officer Waters released the dog, which mistakenly attacked Officer McFarland, biting him on the left leg.

As Officer Waters was commanding the police dog to release Officer McFarland, Rodgers was attempting to exit his vehicle through the damaged driver’s side door, and the other officers who had been involved in the chase were approaching Rodgers’ vehicle. Freeman, who was still in the passenger seat of the automobile, heard Rodgers saying “holdup” as he tried to get out. Id. at 109. Rodgers had his hands up and, at that point, had nothing in them. However, Freeman did not notice whether Rodgers’ weapon, which had been between his seat and the center console, was still there. As Rodgers emerged from the car, Freeman could only see his left side, not his right.

Officer Brown grabbed Rodgers by the shirt to get him out of the car. Rodgers did not have a weapon at that time, but as Brown was pulling him out of the vehicle, Rodgers leaned back in and grasped his firearm. Officer Brown yelled “Gun!” and backed away from the vehicle. Officer Waters heard this warning and saw Rodgers emerging from his vehicle. Officer Waters did not see a weapon,² but he observed that Rodgers had his right hand under his shirt. Deputy Farrow, however, did observe Rodgers emerge from his vehicle with a firearm in his right hand. Officer Waters deployed the police dog, which initially engaged Rodgers by the arm. Officer Waters then saw Rodgers point the firearm at him (Officer Waters). In the ensuing seconds, Officer Waters and Deputy Farrow fired their weapons. Bullets from Officer Waters’ firearm struck Rodgers multiple times, killing him.

Some of the events surrounding the shooting were captured on videotape by a camera located in Officer Forney’s patrol vehicle. The recording begins as Officer Forney turns his vehicle to approach the crash scene. Officer Forney stopped behind Deputy Farrow’s vehicle, thus placing Deputy Farrow’s vehicle between the video camera and Rodgers’ and Officer Waters’ vehicles.

At 1:50:56 on the recording, Deputy Farrow can be seen in the center of the screen, climbing up the side of his vehicle from behind the open driver’s side door. (He later testified that he was trying to stay out of the way of the police dog.) Officer McFarland is to the left of Deputy Farrow’s vehicle, crouched on the ground with his firearm in his right hand. At 1:51:01, Officer Waters comes into view from the left of the screen with the police dog. Officer Waters brings the dog forward a few feet and releases it, at which point the dog is out of view in front of Deputy Farrow’s vehicle. Having released the dog, Office Waters moves forward a few more steps and appears to be quite close to Rodgers.

As Officer Waters deploys the dog, Rodgers can be seen. Because of the location of Deputy Farrow’s vehicle with respect to the video camera, Rodgers at first is viewable only through the back and front windshields of Deputy Farrow’s vehicle. He appears to be leaning slightly forward, and his arms are contrasted against the white shirt he is wearing. At 1:51:03, Rodgers appears to rise up, raising his left arm. Deputy Farrow is standing on the ground behind the driver’s side door of his vehicle, and Officer McFarland is kneeling a few feet to the left. Both officers have their weapons drawn. At 1:51:04, Rodgers’ left arm has come down and he is falling backward, evidently having been engaged by the police dog. Officer McFarland is now standing on his uninjured right leg. At 1:51:06, Rodgers is out of view, Officer Brown is backing away, and Officer McFarland has advanced a small distance. Officer Forney comes into view on the left, behind the other three officers.

Rodgers appears again at 1:51:07, coming toward the officers as he falls. Rodgers has moved to the left of Deputy Farrow’s vehicle and is no longer obscured by it. He is moving sideways and is facing the video camera; thus, he is falling to his right, toward the officers. Two muzzle flashes can be seen as Officer Waters draws and fires his weapon. As Rodgers falls to the ground, his firearm can be seen leaving his hand and landing a few feet away. At 1:51:08, Rodgers is on the ground and now unarmed, and Officer Waters fires again. At 1:51:10-11, three more muzzle flashes are seen from Officer Waters’ weapon. The other officers—except Deputy Farrow, who continues to use the door of his vehicle as a shield—back away as the incident ends. Rodgers is lying on the ground but is still being pulled by the police dog, which is out of view but evidently has engaged Rodgers’ leg. The time elapsed from when Rodgers first appears on the video recording until the firearm is seen leaving his hand is no more than seven seconds.

Rodgers was transported to the hospital and pronounced dead. Examination of the body revealed that Rodgers had been shot multiple times in the head and body. He also exhibited bite marks on his right arm, hand, abdomen, and thigh. It is undisputed that shots fired by Officer Waters killed Rodgers; Deputy Farrow discharged his weapon but did not hit Rodgers, and Officer McFarland never discharged his weapon.

The Estate subsequently brought this action alleging multiple claims against the officers involved in the shooting, other individuals, and Martin County and the City of Williamston. As is relevant here, the Estate alleged that Rodgers’ Fourth Amendment rights were violated by the deployment of the police dog without prior warning and by the use of deadly force by Deputy Farrow and Officer Waters. We address each of these claims below.

II.

Government officials performing discretionary functions are entitled to qualified immunity from liability for civil damages to the extent that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); it protects law enforcement officers from “bad guesses in gray areas” and ensures that they are held liable only “for transgressing bright lines,” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992). Because qualified immunity “is an entitlement not to stand trial or face the other burdens of litigation,” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (internal quotation marks omitted), the question of its applicability should ordinarily be resolved at the summary judgment stage, see Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir.2005).

When a defendant asserts entitlement to qualified immunity, the court must consider two questions. The first is “whether a constitutional right would have been violated on the facts alleged” by the plaintiff. Saucier, 533 U.S. at 200, 121 S.Ct. 2151. If so, the next question is whether the right asserted was clearly established at the time of the alleged violation. See id. The law is clearly established “not only when the very action in question has previously been held unlawful, but also when pre-existing law makes the unlawfulness of the act apparent.” Meeker v. Edmundson, 415 F.3d 317, 323 (4th Cir.2005) (internal quotation marks omitted). On appeal, we review de novo the resolution of these questions by the district court. See Rogers v. Pendleton, 249 F.3d 279, 285 (4th Cir.2001).

The right the Estate alleges was violated here is Rodgers’ Fourth Amendment right to be free of unreasonable seizures, a right that includes seizures accomplished by excessive force. See Jones v. Buchanan, 325 F.3d 520, 527 (4th Cir.2003). The test for whether force employed to effect a seizure is excessive is one of “objective reasonableness under the circumstances.” Graham v. Connor, 490 U.S. 386, 399, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted).

A. Excessive Force—Deputy Farrow

The Estate first contends that the district court erred in granting summary judgment to Deputy Farrow. There is no dispute that while Deputy Farrow did fire his weapon, no bullets from that weapon struck Rodgers. Based on this, the district court concluded that Deputy Farrow had not seized Rodgers within the meaning of the Fourth Amendment. The Estate disputes this conclusion, maintaining that it is sufficient that Deputy Farrow intended to achieve Rodgers’ submission through the use of force. We disagree.

“From the time of the founding to the present, the word ‘seizure’ has meant a taking possession. For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. ” California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (internal quotation marks & citations omitted; emphasis added). Thus, a seizure occurs only when there is a physical touching or a submission to a show of authority.³ See id. at 625-26, 111 S.Ct. 1547; United States v. Letsinger, 93 F.3d 140, 143 (4th Cir.1996). Here, there was no seizure because the bullets from Deputy Farrow’s weapon never touched Rodgers. See Carr v. Tatangelo, 338 F.3d 1259, 1267, 1270-71 (11th Cir.2003) (noting that excessive force claim asserted by individual who was shot at by law enforcement officers, but not touched by bullets, did not involve Fourth Amendment seizure).

B. Excessive Force—Deployment of Police Dog

The Estate next contends that the district court erred in granting summary judgment on the Estate’s claim that Officer Waters unreasonably deployed the police dog without first warning Rodgers. See Vathekan v. Prince George’s County, 154 F.3d 173, 178 (4th Cir.1998) (“An attack by an unreasonably deployed police dog in the course of a seizure is a Fourth Amendment excessive force violation.”).

This court has twice addressed the constitutionality of the deployment of a police dog without prior warning. In Kopf v. Wing, 942 F.2d 265, 266 (4th Cir.1991), law enforcement officers deployed a police dog without prior warning on two suspects who were hiding in an “extremely narrow passage” between a shed and a fence and who were thought to be armed. This court concluded that the officer responsible for the deployment was not entitled to summary judgment on the basis of qualified immunity, reasoning that failure to provide a warning and time for the suspects to surrender was unreasonable, given that they were surrounded and unable to escape. See id. at 268. In Vathekan, the facts viewed in the light most favorable to the plaintiff indicated that a law enforcement officer deployed a police dog, without prior warning, into a residence that he believed had been broken into. See Vathekan, 154 F.3d at 176-77. This court concluded that doing so was unreasonable, see id. at 180, and noted that “Fourth Circuit precedent existing in 1995 clearly established that failure to give a warning before releasing a police dog is objectively unreasonable in an excessive force context,” id. at 179.

Citing Kopf and Vathekan, the Estate contends that deployment of a police dog without a verbal warning is always objectively unreasonable. This cannot be so, however. As noted in Vathekan itself, a Fourth Amendment excessive force claim is evaluated under the reasonableness standard set forth in Graham. See Vathekan, 154 F.3d at 178; see also Kopf, 942 F.2d at 267-68 (quoting Graham). The application of this test “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, 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.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Moreover, “[t]he calculus of reasonableness must embody allowance 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.” Id. at 396-97, 109 S.Ct. 1865. Thus, Vathekan cannot be viewed as holding anything more than that the unwarned deployment at issue in that case was unreasonable.

Applying this test to the particular facts that faced Officer Waters when he deployed the police dog without first warning Rodgers, we conclude that there was no Fourth Amendment violation. When Officer Waters deployed the police dog, he had heard Officer Brown shout “Gun!”, and he observed that Rodgers’ right hand was out of view under his shirt.⁴ These observations were combined with Officer Waters’ knowledge that Rodgers had kidnapped his girlfriend at gunpoint, had led police on a high-speed chase, and had stopped abruptly in a manner that caused Officer Waters’ vehicle to collide with Rodgers’ vehicle. At the time of the deployment, Officer Waters was no more than 10 feet away from Rodgers. Officer Waters testified during his deposition that he deployed the dog without warning because “I was close and there was no cover between [Rodgers] and I. And I didn’t want to draw any more attention to myself than I had to.” J.A. 285. Under these circumstances, we cannot say that Officer Waters’ judgment was an unreasonable one. We therefore conclude that there was no Fourth Amendment violation in the manner Officer Waters deployed the police dog.

Even if Officer Waters’ deployment of the police dog without prior warning did violate the Fourth Amendment, the unlawfulness of his conduct was not clearly established on April 15, 2002. Kopf and Vathekan stand at most for the principle that the Fourth Amendment is violated when an officer who faces no immediate threat deploys a police dog without prior warning. For the reasons set forth above, that was not the case here.

C. Excessive Force—Shooting

The Estate next contends that Officer Waters used excessive force in shooting Rodgers. “The intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Nevertheless, a police officer may employ deadly force when 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, 105 S.Ct. 1694; see Cox v. County of Prince William, 249 F.3d 295, 299 (4th Cir.2001).

The record evidence, viewed in the light most favorable to the Estate, supports the conclusion that when Rodgers initially emerged from his vehicle, his hands were up, and they were empty. This much can be reasonably inferred from Freeman’s testimony and from the testimony of Officer Brown. We will therefore assume that at that point, the use of deadly force would have violated the Fourth Amendment. However, no deadly force was used then. Rather, the uncontradicted record evidence establishes that at some point after initially emerging from the car, Rodgers acquired his firearm, either by reaching back into the car and grabbing it (as Officer Brown’s testimony would indicate), or by some other means (such as removing it from the waistband of his pants, an inference consistent with Freeman’s testimony). Further, the uncontradicted record evidence indicates that Officer Brown shouted “Gun!” and, critically, that Rodgers waved the weapon around and pointed it directly at Officer Waters and Deputy Farrow. Indeed, Officer Waters testified that he saw Rodgers point the firearm at him after Rodgers had been engaged by the police dog. When Officer Waters was presented with these circumstances, he also knew that Rodgers had abducted his estranged girlfriend at gunpoint, had led officers on a lengthy high-speed chase, and had caused one of the pursuing vehicles to crash into his own. We therefore hold that Officer Waters’ use of deadly force was not objectively unreasonable in light of the circumstances known to him at the time of the shooting.

The Estate further contends, however, that even if the use of deadly force was justified when Officer Waters fired the initial shots, that justification ended when Rodgers fell to the ground. We disagree. The reasonableness of an officer’s actions rests on the information possessed by the officer at the moment that force is employed. See Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.1996). Therefore, “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” Waterman v. Batton, 393 F.3d 471, 481 (4th Cir.2004); see Hopkins v. Andaya, 958 F.2d 881, 887 (9th Cir.1992) (per curiam) (holding that second use of deadly force was unreasonable when “the exigency of the situation lessened dramatically” after the first use of deadly force).

In Elliott, we assessed the reasonableness of the use of deadly force by police officers who had placed a suspect, with his hands cuffed behind his back, in a police cruiser. See Elliott, 99 F.3d at 641-42. Moments later, the officers observed the suspect pointing a firearm at them, and they fired 22 shots in a matter of seconds, killing the suspect. See id. at 642. We rejected the contention that the number of shots fired rendered the use of force excessive, noting that the shooting took place in a matter of seconds. See id. at 643. “That multiple shots were Bred does not suggest the officers shot mindlessly as much as it indicates that they sought to ensure the elimination of a deadly threat.” Id. In contrast, in Waterman we considered a situation in which officers fired at a suspect as he accelerated his vehicle toward and then past them. See Waterman, 393 F.3d at 474-75. We held that officers exceeded constitutional bounds by continuing to fire after the vehicle passed them, at which point the officers knew or should have known that the immediate threat of harm had passed. See id. at 482.

We conclude that Elliott is controlling here. The videotape establishes that Rodgers fell to the ground, with his arms in the vicinity of his waist, no later than 1:51:08. At this time, Rodgers appears to be slightly curled up, thus presenting the top or back of his head to Officer Waters. Only two seconds later, at 1:51:10, Officer Waters fires three more shots. Importantly, although Rodgers’ firearm left his hands as he fell, nothing in the record indicates that Officer Waters knew that Rodgers had dropped his weapon, and thus was no longer a threat. We conclude that on this evidence, a reasonable factfinder could only conclude that Officer Waters was acting to ensure the neutralization of a deadly threat.

Even if the second volley of shots were unconstitutional, that unconstitutionality was by no means clearly established as of April 15, 2002. Waterman required us to decide whether it was clearly established in November 2000 that an officer may not use deadly force in the seconds after a serious threat had abated. See Waterman, 393 F.3d at 482-83. We concluded that although other circuits had reached this conclusion prior to the relevant time, the Fourth Circuit had not. See id. at 483. In light of the uncertainty of the law existing at the time of the incident, we held that the unconstitutionality of the use of force in the seconds after a threat has abated was not clearly established. See id. Because the law on this point did not become clear until 2004, when Waterman was decided, we conclude that even if Officer Waters had violated the Constitution, he would be entitled to qualified immunity on the basis that the unconstitutionality of his actions was not clearly established at the time of the incident.⁵

III.

This case is no doubt a tragic one. It is possible, as the Estate contends, that Rodgers was attempting to surrender when he was engaged by the police dog and shot at by the officers. Even if this was the case, however, the circumstances presented to the officers at the outset of the encounter—the kidnapping, the high-speed chase, the wielding of a firearm and pointing it at the officers—gave them probable cause to believe otherwise, and to use deadly force to eliminate a serious and immediate threat to their fives. We therefore affirm the district court.

AFFIRMED.

1 . The district court had previously dismissed other claims against these defendants and the claims against other defendants. The Estate does not appeal those dismissals.

2 . The record contains three evidentiary items concerning Officer Waters' observations: the State Bureau of Investigation (SBI) statement he made shortly after the incident, an affidavit sworn in late November 2004, and a transcript of his deposition testimony, given in October 2004. The affidavit indicates that Officer Waters saw Rodgers with a firearm before he deployed the police dog, while the SBI statement indicates that he did not see the weapon until after the deployment. Officer Waters’ deposition testimony (at least the portion included in the record) does not directly address this topic. We assume the truth of the SBI statement, as that is most favorable to the Estate.

3 . The Estate does not claim that Rodgers submitted to a show of authority by Deputy Farrow, or by any other officer.

4 . Citing Freeman’s statement to the police and her deposition testimony, the Estate asserts that there is ''compelling evidence that the unarmed ... Rodgers had his hands in the air when he was viciously attacked by the K-9 Officer.” Br. of Appellants at 27. As set forth in Part I.A., however, Freeman's statement and deposition testimony establish that she viewed Rodgers’ hands only for a brief period as he began to emerge from his vehicle. The uncontradicted testimony of officers outside the vehicle—who observed Rodgers when Freeman could not—and what can be seen on the videotape indicate that Rodgers' hands were not raised in surrender when the police dog was deployed.

5 . In light of our conclusion that all of the officers involved in the incident are entitled to qualified immunity, the Estate's claims against Martin County Sheriff Keith Roach and against the City of Williamston necessarily fail. See Kopf, 942 F.2d at 269 (noting that municipal liability "is derivative of, but narrower than, the officers” ’).