TERESA ANN HENSLEY, as relator on behalf of the State of North Carolina, and as Administrator of the Estate of David Lee Hensley; H.H., a minor, by and through her parent and next friend; RACHELLE FERGUSON, Individually, and as relator on behalf of the State of North Carolina, Plaintiffs - Appellees,
MICHAEL SCOTT PRICE, Individually and in his Official Capacity as Lieutenant of Haywood County Sheriff's Department; KEITH ALLEN BEASLEY, Individually and in his Official Capacity as Deputy Sheriff of Haywood County Sheriff's Department; WEST AMERICAN INSURANCE COMPANY, Corporate Surety on the official bond of the Sheriff of Haywood County; THE OHIO CASUALTY INSURANCE COMPANY, Corporate Surety on the official bond of the Sheriff of Haywood County, Defendants - Appellants, and BOBBY R SUTTLES, Individually and in his Official Capacity as former Sheriff of Haywood County; JOHN DOE, #1; JOHN DOE, #2; LARRY BRYSON; DAVID MITCHELL, Defendants.
Argued: March 30, 2017
Amended: November 17, 2017
from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K.
Reidinger, District Judge. (1:14-cv-00193-MR-DLH)
Patrick Houghton Flanagan, CRANFILL, SUMNER & HARTZOG,
LLP, Charlotte, North Carolina, for Appellants.
Russell Lyway McLean, III, MCLEAN LAW FIRM, PA, Waynesville,
North Carolina, for Appellees.
SHEDD, DUNCAN, and AGEE, Circuit Judges.
Michael Price and Keith Beasley (collectively, the
"Deputies")-both employed by the Haywood County,
North Carolina, Sheriff's Department-shot and killed
David Hensley outside his home on the morning of August 9,
2012. The plaintiffs-Hensley's widow and two
daughters-brought suit against the Deputies in both their
individual and official capacities under 42 U.S.C. §
1983 and North Carolina law in the United States District
Court for the Western District of North Carolina. The
Deputies asserted federal qualified immunity and related
state defenses in a motion for summary judgment, which the
district court denied. For the reasons that follow, we affirm
the district court's judgment.
interlocutory appeal raising the issue of qualified immunity,
the Court views the facts in the light most favorable to the
plaintiffs. Pegg v. Herrnberger, 845 F.3d 112, 117
(4th Cir. 2017). We summarize the facts viewed in that light
as follows, recognizing the Deputies' forecast of
evidence is markedly to the contrary.
August 2012, the Deputies responded to a domestic disturbance
call at Hensley's home around 6:15 a.m. When the pair
arrived, they parked their cars in the front yard and
remained in the vehicles facing the home's porch. Shortly
thereafter, Hensley; his older daughter, Rachelle Ferguson;
and his minor daughter, H.H., walked out of the home and onto
the porch together. Hensley held a handgun.
Deputies noticed the handgun, but took no action-they neither
announced their presence nor asked Hensley to drop the gun.
Instead, they watched as Hensley briefly struggled with both
Ferguson and H.H., striking Ferguson with the handgun. After
that altercation ended, the Deputies watched as Hensley
walked off the porch and into the yard toward them. When he
reached the yard, Hensley looked back at his daughters on the
porch. According to plaintiffs' pleadings and proffer of
evidence, Hensley still held the handgun with its muzzle
pointed at the ground as he descended the porch stairs and
walked toward the Deputies.
this series of events, Hensley and the Deputies did not
acknowledge each other's presence. Hensley never raised
the gun toward the Deputies or made any overt threats toward
them. For their part, the Deputies never ordered him to stop,
to drop the gun or issued any type of warning. The Deputies
concede that neither of them ever spoke to Hensley.
after Hensley descended the porch and walked into the yard,
the Deputies exited their vehicles and shot and killed him.
2014, the plaintiffs-Teresa Ann Hensley (Hensley's wife),
in her capacity as administrator of Hensley's estate;
Ferguson; and H.H.-filed suit against the Deputies in both
their individual and official capacities in the district
court. The operative complaint asserted claims against the
Deputies for the violation of Hensley's Fourth Amendment
right to be free from unreasonable seizure, as enforced by 42
U.S.C. § 1983. As relevant here, the complaint also
asserted supplemental claims under North Carolina law,
including: (1) assault; (2) negligent infliction of emotional
distress, ("NIED"); and (3) wrongful death,
pursuant to N.C. Gen. Stat. § 28A-18-2. The plaintiffs
sought both compensatory and punitive damages.
discovery, the Deputies moved for summary judgment, arguing
that they were entitled to qualified immunity from the
plaintiffs' individual-capacity § 1983 claims on the
ground that they acted reasonably in using deadly force. They
also contended that they were entitled to public official
immunity and related defenses under North Carolina law on the
plaintiffs' individual capacity assault, NIED, and
wrongful death claims. Finally, the Deputies argued that, if
the court resolved their immunity defenses favorably to them,
the plaintiffs' official capacity claims failed as a
matter of law.
district court entered an order denying the Deputies'
motion for summary judgment on the issue of qualified
immunity, and concluded that:
[T]he legal question is whether [the] [p]laintiffs'
forecast of evidence can give rise to a reasonable inference
that the [D]eputies objectively lacked probable cause to
believe that [Hensley] posed a threat of serious physical
harm to them. Taking the evidence in the light most favorable
to the [p]laintiffs, . . . a reasonable jury could conclude
that the [Deputies] had no objective basis upon which they
could base a decision to use deadly force against [Hensley].
Hensley v. Suttles, 167 F.Supp.3d 753, 762 (W.D.
N.C. 2016). The district court also rejected the
Deputies' public official immunity defense and other
state defenses on the same ground. Id. at 766-67.
Deputies noted a timely appeal. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and the collateral order doctrine.
Winfield v. Bass, 106 F.3d 525, 528-29 (4th Cir.
1997) ("To the extent that an order of a district court
rejecting a governmental official's qualified immunity
defense turns on a question of law, it is a final decision
within the meaning of § 1291 under the collateral order
doctrine[.]"). See generally Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541 (1949).
Deputies raise two arguments on appeal. First, they contend
that the district court erred in denying them qualified
immunity from suit and allowing the plaintiffs' §
1983 claim to proceed. Second, the Deputies argue that the
district court erred in denying the application of their
North Carolina state law defenses.
Court reviews the district court's denial of qualified
immunity de novo, taking all the facts in the light
most favorable to the non-moving party, here, the plaintiffs.
Pegg, 845 F.3d at 117. As a practical matter, this
means that the Court "accept[s] the facts as the
district court articulated them when it determined whether
summary judgment was appropriate, and then . . . determine[s]
whether, based on those facts, a reasonable person in the
[Deputies'] position could have believed that [they]
w[ere] acting in conformity with clearly established law at
the time." Id. We also review the denial of
public official immunity and other state law defenses de
novo. See Bailey v. Kennedy, 349 F.3d 731, 739
(4th Cir. 2003).
reviewing a denial of summary judgment based on qualified
immunity, we may only consider whether, on the undisputed
facts and the facts considered in the light most favorable to
the plaintiffs, the defendants violated clearly established
law. See Iko v. Shreve, 535 F.3d 225, 233-35 (4th
Cir. 2008). In this procedural posture, we may not credit
defendant's evidence, weigh the evidence, or resolve
factual disputes in the defendants' favor. For example,
we may not take as true the Deputies' assertion that once
Hensley stepped off the porch he had the muzzle of the gun
pointed toward them in a "shoot-from-the-hip"
position. Similarly, we may not accept their contention that
when Hensley stepped onto the porch he initially pointed the
gun at them. While a jury could well believe the evidence
forecast by the Deputies, we take the facts in the light most
favorable to the plaintiffs to determine the applicable
questions of law and ignore any contrary factual
claims. See Mitchell v. Forsyth, 472 U.S.
511, 528-29 (1985) (observing that the "question of
immunity is separate from the merits of the underlying action
for purposes of [an interlocutory appeal under the collateral
order doctrine] even though a reviewing court must consider
the plaintiff's factual allegations in resolving the
immunity issue"); Pegg, 845 F.3d at 117.
first to the Deputies' qualified immunity argument
related to the plaintiffs' § 1983 claim.
1983 "creates a cause of action against any person who,
acting under color of state law, abridges a right arising
under the Constitution or laws of the United States."
Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir.
2013). In the case at bar, the plaintiffs have alleged that
the Deputies violated Hensley's Fourth Amendment right to
be free from unreasonable seizures. Even though the
plaintiffs have alleged a constitutional violation, the
Deputies are "entitled to invoke qualified immunity,
which is more than a mere defense to liability; it is
immunity from suit itself, " if they meet the
requirements. Id.; see also Mitchell, 472
U.S. at 526. "Qualified immunity protects officers who
commit constitutional violations but who, in light of clearly
established law, could reasonably believe that their actions
were lawful." Henry v. Purnell, 652 F.3d 524,
531 (4th Cir. 2011) (en banc).
the two-step process set out by the Supreme Court in
Saucier v. Katz, 533 U.S. 194 (2001), we may ask
"whether a constitutional violation occurred."
Henry, 652 F.3d at 531. If we conclude that a
constitutional violation has occurred, we then examine
"whether the right violated was clearly
established." Id. A right is "clearly
established" when "its contours are sufficiently
clear that a reasonable official would understand that what
he is doing violates that right." Cooper, 735
F.3d at 158 (internal alteration and quotation marks
omitted). Although we may exercise our discretion in
determining which of the two prongs to analyze first,
Pearson v. Callahan, 555 U.S. 223, 236 (2009), the
Deputies have failed to raise-and, therefore, have waived-any
argument that the right at issue was not clearly established.
See Fed. R. App. P. 28(a)(8)(A) ("[T]he
argument . . . must contain . . . appellant's contentions
and the reasons for them[.]); Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (noting
failure to comply with Rule 28 results in abandonment on
appeal). Consequently, we examine only the first
Saucier prong, "whether a constitutional
inquiry asks: when viewing the facts in the light most
favorable to the plaintiffs, did the Deputies violate
Hensley's Fourth Amendment right to be free from
unreasonable seizures when deadly force was exercised against
him? "The use of deadly force is a seizure subject to .
. . the Fourth Amendment." Tennessee v. Garner,
471 U.S. 1, 7 (1985). "A reasonable officer is entitled
to use deadly force where [he] has probable cause to believe
that a suspect poses a threat of serious physical
harm, either to [himself] or to others."
Cooper, 735 F.3d at 159 (internal alterations and
quotation marks omitted) (emphasis added). To determine
whether such probable cause existed here, we ask whether the
Deputies' use of deadly force was "objectively
reasonable in light of the facts and circumstances
confronting them, [viewed in the light most favorable to the
plaintiffs, ] without regard to [the Deputies']
underlying intent or motivation." Graham v.
Connor, 490 U.S. 386, 397 (1989). We assess the
reasonableness of their conduct based on the totality of the
circumstances, Yates v. Terry, 817 F.3d 877, 883
(4th Cir. 2016), and based on the information available to
the Deputies "immediately prior to and at the very
moment they fired the fatal shots." Greenidge v.
Ruffin, 927 F.2d 789, 792 (4th Cir. 1991) (internal
alterations and quotation marks omitted).
these guiding principles in mind, we turn to the
Deputies contend that the district court erred in denying
their motion for summary judgment on the plaintiffs'
§ 1983 claim because their use of deadly force against
Hensley was reasonable under the circumstances. To support
their argument, the Deputies maintain that, even viewing the
facts in the light most favorable to the plaintiffs, it is
clear that Hensley emerged from his home with gun in hand,
that Hensley hit Ferguson shortly before coming off the porch
and advancing toward them, and that the entire series of
events took only a brief time. The Deputies posit that their
use of deadly force against Hensley in such circumstances was
clearly reasonable because he both demonstrated a propensity
for violence and came toward them with a gun.
rejoinder, the plaintiffs contend that the Deputies acted
unreasonably for two reasons. First, the plaintiffs point out
that under their version of the facts, when the Deputies
killed Hensley, he was pointing the gun at the ground and was
threatening neither the Deputies nor his daughters. As the
plaintiffs proffer, Hensley's altercation with Ferguson
had concluded by the time he walked off the porch; therefore,
because he never raised his weapon toward the Deputies, he
was not immediately threatening to anyone at the scene.
Second, the plaintiffs argue that the Deputies' actions
were all the more unreasonable here because they shot without
warning Hensley to drop the gun or communicating with him in
stage of the proceedings, we must agree with the plaintiffs.
If a jury credited the plaintiffs' evidence, it could
conclude that the Deputies shot Hensley only because he was
holding a gun, although he never raised the gun to threaten
the Deputies. Indeed, he never pointed the gun at
anyone. Moreover, the Deputies had ample time, under
the plaintiffs' evidence, to warn Hensley to drop his gun
or stop before shooting him, but they concede they never gave
any such warning. Because the use of force in such
circumstances would be objectively unreasonable, we must
affirm the district court's summary judgment order
denying the Deputies qualified immunity on the § 1983
if we assume, as we must, the credibility of the
plaintiffs' evidence, we cannot say that Hensley posed a
threat of serious physical harm to either the Deputies or his
daughters at the time the Deputies fired the fatal shot. The
lawful possession of a firearm by a suspect at his home,
without more, is an insufficient reason to justify the use of
deadly force. Indeed, it is unreasonable for an officer to
believe "that a suspect poses a threat of serious
physical harm, either to [himself] or to others, "
merely because that suspect possesses a firearm.
Cooper, 735 F.3d at 159 (internal alterations and
quotation marks omitted); see also Pena v. Porter,
316 Fed.Appx. 303, 312 (4th Cir. 2009) ("Absent any
additional factors ...