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Hensley v. Price

United States Court of Appeals, Fourth Circuit

November 17, 2017

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,
v.
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

         Appeal 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.

          Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

          AGEE, CIRCUIT JUDGE

         Deputies 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.[1]

         I.

         A.

         On an 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.

         In August 2012, the Deputies[2] 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.

         The 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.

         Throughout 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.

         Shortly after Hensley descended the porch and walked into the yard, the Deputies exited their vehicles and shot and killed him.

         B.

         In July 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.[3] The plaintiffs sought both compensatory and punitive damages.

         After 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.

         The 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.

         The 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).

         II.

         The 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.

         A.

         This 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).

         B.

         In 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.[4] 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.

         III.

         A.

         We turn first to the Deputies' qualified immunity argument related to the plaintiffs' § 1983 claim.

         1.

         Section 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).

         Under 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).[5] Consequently, we examine only the first Saucier prong, "whether a constitutional violation occurred."

         That 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).

         With these guiding principles in mind, we turn to the Deputies' argument.

         2.

         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.

         In 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 any way.

         At this 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 claim.

         First, 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 ...


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