January 27, 2016
[Copyrighted Material Omitted]
from the United States District Court for the District of
South Carolina, at Charleston. (2:11-cv-02289-CWH). C. Weston
Houck, Senior District Judge.
Lilley Jackson, SENN LEGAL, LLC, Charleston, South Carolina,
Scott Luck, SEIBELS LAW FIRM, P.A., Charleston, South
Carolina, for Appellee.
H. Garrett, GARRETT LAW OFFICES, North Charleston, South
Carolina, for Appellee.
WYNN and HARRIS, Circuit Judges, and Loretta C. BIGGS, United
States District Judge for the Middle District of North
Carolina, sitting by designation. Judge Biggs wrote the
opinion, in which Judge Wynn and Judge Harris joined.
LORETTA COPELAND BIGGS, District Judge
Christopher Blair Terry (" Terry" ) appeals the
district court's order denying his motion for summary
judgment on the basis of qualified immunity. For the reasons
that follow, we affirm.
reviewing the district court's denial of Terry's
motion for summary judgment, we view the facts in the light
most favorable to Brian Yates (" Yates" ), the
non-moving party, as we are required to do. See Plumhoff
v. Rickard, 134 S.Ct. 2012, 2017, 188 L.Ed.2d 1056
(2014); Waterman v. Batton, 393 F.3d 471, 473 (4th
December 27, 2008, Yates, a first sergeant and Iraq War
veteran, was driving a 1972 customized Buick Skylark on a
highway in North Charleston, South Carolina. His mother,
Patricia Yates, and brother, Kelvin Brown, were in a separate
vehicle following behind him. Yates drove past two police
cruisers when one of the cruisers, driven by Terry, pulled
out and began to follow him. At some point, Terry activated
his lights; however, there was a vehicle between Terry and
Yates, which led Yates to believe that the officer was
attempting to stop another vehicle. Yates then changed lanes,
using his turn signal, to allow Terry to pass. When Yates
realized that Terry was behind him, Yates pulled over at a
gas station. At the gas station, Terry approached Yates'
vehicle and requested Yates' driver's license. Yates
responded that he did not have his driver's license but
that he did have military identification. Terry then opened
the car's door and forced Yates out of the car. Around
this time, Yates' mother and brother arrived at the gas
station. Terry ordered Yates to place his hands on the car.
Yates complied. Terry informed Yates that he was under
arrest, which prompted Yates to inquire as to the basis for
the arrest. Terry failed to provide an explanation. With
Yates' hands on top of the car and Terry behind him,
Yates turned his head to the left and Terry deployed his
taser in " probe mode."  Yates fell to the ground.
Yates' brother then asked Terry why he tased Yates, and
Terry responded, " Back up[,] or do you want some
too[?]" J.A. 23, 68-69, 82, 479-80. While Yates was
still on the ground and having made no attempt to get up,
Terry tased him a second time. Following the second
application of the taser, Yates told his brother to call his
commanding officer and then reached for his cell phone, which
was clipped to his waist, when Terry tased Yates a third
time. Yates' mother passed out after the third taser
these events, other officers arrived on the scene and Yates
was placed into handcuffs. EMS also arrived and provided
medical care to Patricia Yates. The officers searched
Yates' vehicle. Yates was charged with an excessive noise
violation, no license in possession, and disorderly conduct,
all of which were nol prossed.
21, 2011, Yates filed this action in state court, alleging
multiple state claims and federal claims against Defendants
Terry, the City of North Charleston, the North Charleston
Police Department, Chief Jon R. Zumalt, and unnamed John
Does. The suit was removed to ...