PATTERSON v. RANDAZZO et al, No. 1:2011cv00138 - Document 118 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION as to CHRISTOPHER O'NEAL PATTERSON signed by MAG/JUDGE JOE L. WEBSTER on 9/3/2015, that this court finds that there is no genuine 1ssue of material fact and therefore Defendants are enti tled to summary judgment. Accordingly, the Court RECOMMENDS that Defendants' motion for summary judgment (Docket Entry 95 ) be GRANTED. The Court further RECOMMENDS that Defendants' motion to dismiss (Docket Entry 82 ) be denied as moot.(Butler, Carol)
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PATTERSON v. RANDAZZO et al Doc. 118 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CHRISTOPHER O'NEAL JASON RANDAZZO, GERAID JONES, JUSTIN FLYNT, MATTHEW PHILLP O'HAL, JOEL CRANFORD, ERNEST K. IØRENN, and KRISTEN BENNE,T:f, ) ) ) ) ) ) ) ) ) ) ) ) Defendants ) ) PAT:TERSON, Plaintiff, V 1:11CV138 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter is before the court on the motion of Defendants Gteensboto Police Depattment ("GPD") Officers Ernest I(. \X/renn, Getald Jones, Jason Randazzo,Justin Flynt, I(risten Bennett and Matthew Phillip O'Hal (collectively "Defendants") for summalT judgment. (Docket Entty 95). Plaintiff Chdstophet O'Neal Pattetson ("Plaintiff' ot "Pattetson") has filed a tesponse. pocket E.rtty 117.) Also pending is Defendants' Motion to Dismiss. (Docket Entry 82). Fot the reasons that follow, Defendants' motion fot summary judgment should be gtanted and Defendants'motion to dismiss should be denied as moot. I. FACTUAL AND PROCEDURAL BACKGROUND In November 2010, Plaintiff pled guilty to multiple criminal chatges stemming from a bank robbery and subsequent shootout with law enfotcement in which his co-defendant was Dockets.Justia.com killed. Plaintiff was sentenced by the Honotable Thomas D. Schroedet to a 744-month prison sentence. (See United Søns u. Christopher O'Neal Palterson, No. 1:09CR54-1, Docket Entty 39) (the "cdminal case"). Plaintiff, acting þro se, subsequently filed this civil suit against the seven Greensboto Police Department officers involved in the shootout. In his second amended complaint, Plaintiff alleged that Defendants used excessive fotce dudng his attest in violation of the Foutth, Eighth, and Fourteenth Amendments to the Constitution. (Docket Entry 35.) Patterson challenged the entitety of GPD's use of fotce on the day of the shootout. (1/.) On Juty 26, 201.2, Defendants moved to dismiss the amended complaint on sevetal grounds, including qualified immunity. (Docket Entty 201,3, 39.) By order dated Septembet 30, the Court granted Defendants' motion as to Plaintiffls Eighth Amendment claim, his Fourteenth Amendment substantive due process claim, and all claims against Defendants in their official capacities. (Docket Enry 54.) to dismiss Plaintiffs Foutth mendment The Court futher gtanted Defendants'motion excessive force claim against Defendants in their individual capacities as to all claims ptedicated on conduct that precedes the time that Plaintiff surendered, remained subdued and unatmed, and no longet posed a threat, but denied the motion "in all other respects . . . without prejudice to it being taised upon a furthet showing." (Id. at 23.) Thus, the only temaining claim is one portion of Plaintiffs Fouth Amendment claim brought under 42U.5.C. S 1983, against Defendants in theit individual capacities. In the second amended complaint and its attachments, Plaintiff alleged that on February 9,2009, at about 5:15 pm he was driving a black Infiniti vehicle which GPD officets suspected was fleeing a bank robbery. (Am. Compl. 2 11 1, Docket E.ttty 35.) \X/hen Plaintiffs vehicle did not stop for law enforcement, police set out "stop sticks." (Itl.) Plaintiff alleged that he "lost conttol" of the vehicle, "swerved," and hit Defendant O'Hal, pinning the officer under the car. (Id. 11 2) Plaintiff alleged that Defendants "willfully, maliciously, and sadistically" used excessive fotce by reload their weapons. lting into his vehicle tepeatedly (Id.1'3.) Plaintiff such that they had to alleged that he ws not hit in the alleged lasted "several minutes"), but that he exited the vehicle surrendered, "both physically and verbally." (Id. nn gunfte (which he "with his hands up" and 4-6.) Plaintiff alleged that Defendants shot him at least seven times while he was þing on the gtound, totally distegarding Plaintiffs demands that the officers "stop shooting." (Id.nn 8, 11.) Plaintiff was shot sevetal times. He alleged that he sustained severe injuries, necessitating sevetal sutgeties and tesulting in permanent impairment. (Id.I 11.) Plaintiff pled guilty to the underþing bank tobbery which led to the police chase and shootout descibed in the amended complaint. The factual basis fot PlaintifPs guilty plea, which at the time of sentencing he agteed was accurate, stated: -{ witness who had been inside the bank called police communications saylng he was following the suspects who wete dtiving a black F'ord Taurus. As offìcers arived, the witness indicated that he did not drive all the way to the end of the deadend toad because he feated for his safety, but that he saw a black Inûnity come up the road and he recognized the persons inside as the robbers. Officets began following a black Infìnity and a high speed vehicle pursuit ensued. Dudng the incident one citizen's cat was hit by the suspect vehicle and sustained property damage. The citizen was not injured. Citizens tepotted seeing shots fted from the fleeing vehicle. Dudng the chase, both the ddvet and passenger in the officets. Officet O'Hal, with the getav/ay c^r fted ^t Gteensboto Police Depattment[, ]attempted to place stop sticks in the area whete the suspect car was ftaveling. The suspect's -) car swerved and c me back toward the officet, hitting him with their vehicle. According to Officer O'Hal, the suspect car acceletated and came straight towards him. The ddvet of the suspect car was seen pointing a frearm at Officer O'Hal. The officer was shot and sedously injuted. Offìcets began fring at the suspect vehicle. The passenget, Iater identified as Dimatkchrisy Eddie Majors was shot and killed. The ddvet, idcntificd as Chdstophcr O'Ncal Pattctson, continued fting, but eventually got down on the gtound and dtopped his gun. Pattetson was shot sevetal times during this confrontation. (Cdm. Case, Docket Entry 20 at 4.) Thus, Plaintiff admitted undet oath that aftet hitting an officet with the escape vehicle he fired weapon at the officers attempting to apptehend him. Plaintiff attached to the amended complaint what he represents to be an excerpt of an interview of Defendant Flynt, one of the responding GPD officets, conducted by the SBI. (Sec. Am. Compl. Ex. A, Docket Entry 35.) The interview quotes Officer Flynt as saying that during the chase he heard officers say that they wete being shot at, and Flynt himself saw the dtiver point a gun and shoot towatd the position Randazzo as well as Defendant Cnnford and anothet of Defendants O'Hal and officet. (Id.) Officet Flynt is quoted as saying: I saw the drivet fPatterson] aiming and shooting at the officets I began shooting at the driver in defense of the other officersf'] lives. The dtiver got out of the car, stopped shooting and yelled 'stop ff#]cking shooting at me.' He then got down on the gtound. \X/hen Qd.) Defendant Ra¡dazzo's alleged statement to the SBI notes that "Pattetson got out of the cat and got on the gtound with his hands up and said 'stop shooting."' (Id.) Defendant Wtenn allegedly told the SBI that Patterson "got out of the car and lafid] down on the 4 ground after spinning atound and falling down." (Itl.) Plaintiff was then apptoached by officets and handcúfed. (Id.) One of the GPD vehicles at the scene had a dashboard c meta that recorded the scene and some Ernest ìØrenn of the encounter between Plaintiff and law enforcement. (Jee Decl. of fl 7, Exhibit A, Docket Entry 103.) Plaintiff alleges that the dashboard c meta recording refetenced in Exhibit B contradicts Defendant Flynt's account and provides evidence that he was shot excessively aftet he had suttendered and was þing on the ground unarmed. (Docket Etttty 54 at 5; see also Sec. Am. Compl. fl 9, Docket Enuy 35.) The Court has viewed the dashcam video in its entitety and will addtess it more fully later in the discussion. In support of their motion for summary ¡udgment, Defendants have each fìled declarations as to the events of February 9,2009, including the robbery, high speed chase, shootout and arrest of Plaintiff. Four of the Defendants, Officers Jones, Ctanfotd, Wtenn and Bennett, all state in their declatations that they did not engage Plaintiff dudng the terminal moments of the encounter. (Decl. of Getald Jones fl 10, Docket Entry 99; Decl. Joel Cranford 1T of 9, Docket E.ttry 102; \Ørenn Decl. nn1,1,-1,2; Decl. of I(dsten Bennett fl 10, Docket Entry 100.) The other three Defendants, Offìcets Randazzo, O'Hal and Flynt, wete involved in the terminal moments of the encountet. Defendant O'Hal states that Plaintiff was shooting at him both before and aftet he exited the vehicle. (Decl. of Matthew O'Hai fl 11, Docket E.rtty 98.) Offìcer O'Hal futther stated: 1.2. When he exited the car, it appeated that Mt. Pattetson attempted to stand up, but instead of standing sttaight, he crouched and then went to his knees. While he was ctouching and on his knees, Mt. Pattetson kept the 5 handgun aimed in my direction. of my fear for my own safety. 13. At no time did I other physical 14. ^ct I continued to engage Mt. Pattetson because Mr. Patterson stand up, raise his arms, ot take any that could be construed as an attempt to suttender. see Dudng the encounter, I did not heat Mr. Patterson say anything, including any statement that could be construed as an attempt to surendet. 15. By this time, OfficerRandazzo had approached my location, and took position over my shouldet. 1,6. Subsequently, Mt. Pattetson began to fall to the gtound. After Mt. Pattetson went to the ground, his atm was extended away ftom his body and it did not appeat that he was aiming the handgun in my direction, or arry ^t other offìcers or civilians at the scene. I adjudged that the thteat ptesented by Mt. Patterson had ended and at that moment I ceased fting my service weapon. I do not recall seeing ot hearing any officers at the scene fire theit weapons aftet the point in time that Mr. Pattetson no longer presented a threat to my safety. Qd.llÍt12-1,6.) Officer Flynt similady descdbed the tetminal moments of the encountet with Plaintiff: Mr. Patterson's motion after he exited the suspect vehicle was towards the rear of the suspect vehicle. -{lthough his atm began to move up and down by a few inches, Mr. Patterson continued to aim his handgun at Offìcets O'Hal and Randazzo's position. He continued to do so until the time that Mt. Patterson's whole body, including his atms, came to rest on the gtound. ,\t this time, I adjudged the thteat ptesented by Mt. Pattetson to have ended, and I immediately ceased fting. I do not tecall seeing ot heating any other offìcets fting their weapons after the point in time that I adjudged Mr. Pattetson's thteat to have ended because the handgun was no longet aimed at other officers. (Decl. of Justin Flynt same sedes fl 13, Docket Entty 101.) Officet Randazzo's declatation relates the of events, noting that "[o]nce Mt. Pattetson went to the gtound and was not aiming his handgun ^t ^îyone, I adjudged the threat to have ended, and I immediately ceased fting my service weapofl." pecl. of Jason Randazzo fl 13, DocketBntty 6 97.) Defendants served a sedes of interrogatories on Plaintiff, asking him to "[s]tate with particuladty the action taken by feach officet] on 9 Febtùary 2009 of which you are complaining and the evidence you have of that action." (Jee Defs.' Bt., Ex. , Interrogs. Nos, 5-1.1, Docket E.rtty 96-1,.) Plaintiff served a single response to the seven intetrogatories, stating: "[P]rior to the shooting, plaintiff knew not any defendants by name. [S]econd, plaintiff knew not where shots were coming ftom for he also neveÍ faced defendants. p]astly all defendants admitted to being directly involved with the shooting and at this time that determination [tedacted by Plaintiffl cannot be made." (Id. Ex. B, Docket E.rtty 96-2.) Plaintiff has submitted vadous documents. One document, entitled "Affìdavit of Truth," contains Plaintiffs statement tegatding the events of the day in question. In pertinent patt, Plaintiff states: 11,. I then egressed the vehicle while shots were still being fted, leaving the gun in the dtiver's seat. I was too terrified to look in the direction of whete the bullets wete coming but knew they were coming ftom behind me. 1,2. I was unatmed when I egtessed the vehicle. I thtew my hands up and yelled fot police to stop shooting. I took apptoximately two to thtee steps five at the most. I felt a powerful impact slam into my left tibia knocking me to the gtoundf.] I went straight to my knees and felt numerous warm projectiles invade my upper back, atm and mid totso. 1,3. While I lay on the gtound facing away ftom defendants[,] hands stretched out in front of me blood dripping in my eye from gtaze to the face, head in ^ the gtass waiting fot death to call, I felt a watm, sensational and powetful impact penetrate my right fredacted] thigh ttaveling up my thigh causing my whole lower body to become wrm. The impact caused me to with both hands dp gtass out of the gtound. At this time all fting ceased. (Pl.'s Aff. II11-13, Docket Entry 115.) 7 II. STANDARD OF REVIEW Summary judgment is wattanted if thete is no genuine issue as to ny material fact and the movingparq is entitled to judgmentz.s a matter of law. Fed. R. Civ. P. 56(a); Zahodnick. Irut'l Bas. Machs. Corþ., 135 F.3d 9'1.1, 913 (4th Cit. 1997). The party seeking summary judgment bears the butden of initially coming forwatd and demonstrating the absence of genuine issue of material fact. Celotex Corp. u. Catrett, 477 U.S. 317 u. a , 323 (1986). Once the moving paty has met its burden, the non-moving pafty must then afftmatively demonsttate the presence of a genuine issue of matedal fact which requites tttal. Mat¡ashita Elec. Indus. Co. u. Zenith Radio Corþ., 475 U.S. 574, 587 (1986). \ü/hen making a summary judgment determination, the court must view the evidence and justifiable inferences ftom the evidence in the light most favorable to the non-movingpaLîty.Zahodnick,135 F'.3d at91.3. Howevet, the party opposing summaly judgment may not test on mete allegations ot denials, and the court need not consider "unsupported assettions" or "self-sewing opinions without objective corroboration," Euans u. Tech¡. Application: dv Seru. Co., 80 F.3d 954, 962 (4th Aruderson u. III. C:r.. 1,996); Uberfl I-nbfu, [nc.,477 U.S. 242,248-49 (1986). DISCUSSION A. Excessive Fotce and Qualified Immunity A Foutth Amendment claim that a police officer employed excessive force must be analyzed undet an "objective reasonableness" standatd. Henrl u. Pøme//,652F.3d 524,531. (4th Cit. 201,1) (en banc). "The officet's actions do not amount to excessive fotce if they are objectively teasonable regard in light of the facts and circumstances conftonting [tu-], without to þs] undedying intent ot motivation." I Smith u. Ray 781 F.3d 95,1.01. (citing Craham u. Connor,490 U.S. 386,397 (1989). In considering the teasonableness of an officet's actions, the court examines the facts at the moment that the challenged fotce was employed. Srniflt, 781 F.3d ^t101.. Such an examinationinvolves abalancingof the "natute and quality of the intrusion on the individual's Fourth Amendment interests against the countervai.ling govetnmental interests at stake." Id. (cinng Graham,49O U.S. at 396). As stated by the Fouth Citcuit, To propedy consider the reasonableness of the fotce employed we must view it in full context, with an eye toward the ptoportionality of the fotce in light of all the circumstances. Artificial divisions in the sequence of events do not aid a court's evaluation of objective teasonableness. \X/e must also give cateful attention to the facts and circumstances of each particulat case, including thtee factors in patticulat: the sevetity of the cdme at issue, whether the suspect poses an immediate threat to the safety of the officets or others, and whethet he is actively resisting affest or attempting to evade arrest by flight. Ultimately, the question to be decided is whethet the totality of the circumstances justifiefs] a partcular sort of seizute. Snith,781 F'.3d at 1.01. (internal quotations and citations omitted) (altetation Because "'police officers are often forced to make split-second judgments that are tense, uncertain and tapidly evolving - in original). - in citcumstances about the amount of fotce that is necessa4/,"' courts must evaluate facts ftom the petspective of a reasonable officet on the scene without the use of hindsight Plarnhof u. Nckard,134 S. Ct. 201,2,2020 (201.4) (quoting Craham, 490 U.S. at 396-97); see also lYaterrnan u. BaÍton, 393 F3d 471,, 476-77 (4th Cir. 2005) (quoting Craham, 490 U.S. at 397). "Qualified immunity shields government official petfotming discretionary functions from petsonal-capacity liability for civil damages undet S 1983, insofar as theit conduct does not violate cleady established statutory or constitutional dghts which a teasonable petson would have known ." Brockington u. Bolkins, 637 F.3d 503, 506 (4th Cit. 201,1) (internal citation 9 and quotation omitted). Officials will teceive immunity unless the $ 1983 claim satisfìes two-pronged constitutional test (1) the allegations, rþht and Q) the if true, substantiate a violation of a fedetal statutolT or rþht was cleatly established such that a teasonable person would have known his acts or omissions violated that tight. Id.; IJ.S. 223, 236 Q009) (setting a rce also Pearson u. Callaltan,555 up the two-pfonged framewotk). Summary judgment on qualified immunity grounds is approptiate if the answer to eithet ptong is "no." Smith 781. F.3d at 101. Undet the pdor order of this Court, the only issue left for considetation in this case is whether there is a genuine issue of material fact as to the reasonableness of the actions of the Defendants dudng the terminal moments of the shootout. Plaintiff argues that Defendants used excessive force in shooting him aftet he was on the ground and had surrendeted. Defendants contend that the officers acted teasonably, without excessive force, and furthet, that they are entitled to qualifìed immunity on the excessive force claim. Thus, to teceive qualified immunity, Defendants must prove either (1) that theit conduct did not violate the constitutional right at issue (rere, the Foutth Amendment's ptohibition on excessive fotce) ot Q) that the dght was not "clearly established" at the time of the incident. Pearson 555 U.S. at 236. B. Excessive Force - Defendants Jones, Cranfotd, Wrenn and Bennett Plaintiff has submitted no evidence as to which officets' rounds allegedly süuck him during the terminal moments of the shootout and he has stated in an intertogatolT response that he cannot identi$r the offìcets involved. Fout of the defendants have stated that they were not engaged in the fìnal moments of the shootout. In his declatation, Defendant Jones 10 stated that after Plaintiff exited the vehicle DefendantJones could no longer see Plaintiff so he did not fre his weapon aftet that point. (|ones Decl. tffl 9-L0, Docket Entry Defendants Cranford and Bennett also stated that they stopped 99.) fting at Plaintiff after he exited the vehicle. (Bennett Decl. fl L0, Docket Entry L00; Cranfotd Decl. fl 9, Docket Entty 1,02.) Defendant Wrenn stated that he had emptied a magazine by the time Plaintiff was exiting the vehicle and had turned away to teload. !Øhen he tesumed position, he saw Plaintiff fall to the ground, out of Officet l(fuenn's sight, and so he did not fte any shots ftom the second m^g zine. flWtenn Decl. tf 12, Docket Entry 103') As such, as to his claim that he was shot aftet exiting the car, falling to the ground and surrendering, the evidence is undisputed that Defendants Jones, Cranfotd, ì7tenn and Bennett could not have shot Plaintiff as he lay on the gtound in a vulnerable position because they had stopped fring before the terminal moments of the encountef. Thus, as to these Defendants, because the evidence does not show "a violafiort of a fedetal statutory or constitutional dght," summary iudgment is ptopet. C. Excessive Force - Defendants Flynt, Randazzo and O'Hal Defendants Flynt, Ratdazzo and O'Hal admittedly fired shots atPlainttff dudng the terminal moments of the encountef. Thus, the analysis as to these Defendants is somewhat different, requidng the coutt to examine the evidence and detetmine whethet the use of deadly fotce at the time of the encounter was reasonable under the totality of the citcumstances. Plømhrrtß4 S. Ct. at2020. Plaintiff contends that he was shot by Defendants as he lay on the gtound and had swrendered. The record evidence, even taken in the light most favotable to Plaintiff, does 1.1. not support this contention. Defendant Randazzo ste;ted in his declaration that Plaintiff aimed a gun at him and Defendant O'Hal while Plaintiff was still in the vehicle, and that Plaintiff continued to do so aftet he exited the vehicle. S.andazzo Decl. II 8-11, Docket Entty 97.) Defendant Randazzo further stated that "[o]nce Mt. Pattetson v/ent to the gtound and was not aiming his handgun at anyone, I adjudged the threat to have ended, and I immediately ceased fting my service weapon." (1d.1113.) Defendant O'Hal stated in his declaration that after heating radto ttafftc about a high speed chase in which shots wete fted from the suspect vehicle, he ptoceeded to a location on Patterson Sueet near Interstate 40. (O'Hal Decl. Jffl 4-5, Docket Entry 98.) As the vehicle approached, Officer O'Hal deployed "stop sticks" inan attempt to puncture the tires of the suspect vehicle and end the pursuit. (Id.fl5.) The suspect vehicle apptoached and swetved to avoid the sticks, skidding off the road. (Id.n6.) Officet O'Hal then observed the vehicle apptoach him and accelerate in his ditection, sttiking Defendant O'Hal and pinning him against his police vehicle. (Id.) Tbe vehicle than spun away off the toad and came to a stop 35-40 feet away, at which point Defendant O'Hal and point a handgun in his ditsçti6¡. (Id. n7.) !Øhen Plaintiff exited the cat, Officet O'Hal, feating for his own safety, shot at times, hitting him saw Plaintiff open the ddvet's side door him. (Id. n 9.) Plaintiff fted at Defendant O'Hal sevetal twice. (Id. n 1,1.) After Plaintiff exited tlte car, he was ctouched on knees and continued to aim his gun in the direction of Officet O'Hal stated tbat"la]t no time did þe] see his O'Hal. (Id.111,2.) Defendant Mt. Pattetson stand up, taise his atms ot take any other physical actthat could be consttued as an attempt to surender" nor did he make"any statement that could be construed as an ttempt to surrender." (Id. ll1l1,3-1,4.) Defendant 1.2 O'Hal futher stated that once Plaintiff fell to the gtound and was not aiming his handgun at any of the officers, Officer O'Hal ceased fting his weapon. Qd.1116.) He did not see or heat any othet officers engage Plaintiff after thatttme. (Id.) Defendant Flynt was also involved in the chase and shootout. He stated in his declatation that he observed Plaintiff engaging othet offìcets with a handgun, while Plaintiff was still in the vehicle. @lynt Decl. Jffl 8-19, Docket Entry 101.) He also saw Plaintiff aim the handgun at Officers O'Hal and Randazzo after Plaintiff exited the vehicle. (Id,Í113.) Officer Fþt stated that Plaintiff never stood straight up after exiting the vehicle, and Flynt nevet saw Plaintiff "raise his atms over his head or take attempt any other action that could be interpreted as an to surrender." (Id. n 11.) Officer Flynt stated that he recalled Plaintiff saylng something like "stop f---ing shooting" but even as he shouted that he continued to aim his handgun in the dkection of the officers. (Id. fl 12.) Defendant Flynt stated that once Plaintiff's whole body, including his arms, came to a rest on the ground Officet Flynt immediately ceased fring, as did the other oflrcers. (Id.) The dashb oard cameta video shows a loud and chaotic scene, as to be expected in a quickty developing situation involving fleeing bank robbers, a high-speed chase, and a shootout between suspects and police officets. (Jea Wtenn Decl. fl 9 and Ex. A theteto, Docket Entry 103.) lØhrle Plaintiff contends that the dashboatd c meta ptovides evidence that he was shot excessively afterhe had sutrendeted and while þing on the gtound unarmed, this Court's viewing of the video suggests that vehicle it does not support Plaintiffs claim. The in which the camera was located was patked some distance from where Plaintiffs vehicle came to a stop. The cameta's view was obsffucted by a civilian vehicle which was 1.3 caught in all the confusion, and thus does not show Plaintiff dudng the tetminal moments the encounter. The video does not reveal a suttendet by Plaintiff because the view of was blocked. The gunshots can be heatd on the video (and indeed gunsmoke is visible in the ait on the other side of the civilian vehicle), but the gunfte lasts at most sixty seconds, pethaps less, and there does not seem to be a signifìcant bteak in the shooting. Moreover, the video does not contain any admission by any Defendant of a violation of Plaintiffs constitutional tights.l In light of the facts and circumstances of this quickly developing situation, "it is beyond serious dispute that fPlaintifPs] flight posed a grave public safety tisk, and . . . fthat] the police acted reasonably in using deadly fotce to end that dsk." Plumhof, 134 S. Ct. at 2022. Moreover, there is clear evidence that Plaintiff continued to shoot at the officets even as his vehicle was surrounded and he began to exit the vehicle. Conversely, there is no evidence, other than Plaintifls self-serving contention, that he exited the vehicle in a mannet which would suggest a desite to surendet. Indeed, Plaintiffs actions all indicated a desire to flee the police and seriously wound the officers who stood in his way. were involved ,\ll the officers who in the pursuit and shootout believed Plaintiff was still btandishing a Fuearm, t Plaintiff submitted what he claims to be a verbatim handwritten transcript/narattve of the dashboard c menz- video. (Jee Docket Entry 35 at1,6-24; Docket Entry 93.) This ttanscript was allegedly prepared by a woman named SamRosezena Matthews. (Jae Docket Etttty 32 at 2.) There is no claim that Ms. Matthews is an expett in transcription; indeed, the Court has no information about her experience, üaining or telationship to Plaintiff. To the extent Plaintiff is seeking to introduce this transcript for the Court's consideration, Defendants object. (Jaa Def.'s Resp. to Pl''s ffidavit of Fact, Docket E try 109.) At aîy r^te,under the'best evidence trtle," because the actual dashboatd recording has been submitted to the Court, thete is no basis to admrt any othet pulported proof as to the contents of the video. FBo. R. Et¡to. 1,002; see also Barøca a. Di:trict of Colanbìa,902 F ' Sopp. 2d 75,83 P.D.C. 2012) (quoang Gordon u. Unind Stutes,344 U.S, 41.4, 420 (1953) ("The elementary wisdom of the best evidence rule rests on the fact that the [recotding itself] is more reliable, complete a¡d accutate soufce of infotmation as to its contents and meaning than anyone's description [of it],"). 14 threatening their safety and the safety of othet citizens, when the officets fted theit final tounds. The Supreme Court and the Fourth Citcuit have cleatly held that in excessive force cases the analysis must focus on the teasonableness of the officer's actions, undet the totality of the circumstances. Graham,490 U.S. at397; Snith,781 F.3d at1,01,. Flere, the tesponding officers had reason to believe that Plaintiff was extremely dangetous, given both the reports of the bank robbery, the attempts to flee and the gun battle which ensued. The gun battle, which involved both suspects and multiple police offìcets, was over There is simply no evidence of a bteak in the shooting, i.e., in a minute ot less. no evidence that Defendants iniuated a second round of shots after the frst round had cleatly tncapacitated Plaintiff and eliminated any threat. See Plamh0fl,134 S. Ct. at2022 In Planhoff, the Coutt held that police fting shots and killing a suspect who posed a gt,ve officers did not use excessive force in public safety dsk by engaging in a high speed and teckless car chase, even though the had momentadly stopped, reasoning that the suspect was still attempting chase to flee in his cat. Here, the facts are even more compelling. The evidence shows that thete was a high speed chase (foltowing an armed bank tobbery), which officers unsuccessfully attempted to end by the use of "stop sticks," and which escalated into a gun battle between the fleeing felons and police officers on maneuvering his c oÍ ne r a bust highway. Additionally, officets observed Plaintiff t to hit and pin Officet O'Hal up against his police vehicle, as well as shooting the officer at least trvice. Plaintiff exited the car still brandishing his fiteatm and offìcers reasonably perceived him to be a continued threat. Under the circumstances at that time, teasonable police officers could have concluded that Piaintiff intended to continue to 15 shoot, endangering othet officets or ordinatT citizens caught in the melee. Even viewing this claim in the light most favorable to Plaintiff, there are no genuine issues of material fact. The Court fìnds that Defendants' conduct did not violate Plaintiffs Fourth mendment rights and Defendants ate entitled to summatT judgment. Even if this Court v/ere to find that Defendants' conduct Amendment, Defendants would still be entitled violated the Fouth to summary judgment based on qualifìed immunity. "An offìcial sued under S 1983 is entitled to qualified immunity unless it is shown that the official violated a statutolT or constitutional right that was 'cleatly established' at the time of the challenged condu ct." PlamhlÍf ß4 S. Ct. ^t 2023 (citing Athcroft u. al- IÇdd, 131 S. by the Supreme Court in Plumhof, Ct.2074,2080 Q01,1)). In excessive fotce cases, as noted "the result depends very much on the facts of each case." Id. "An officer cannot be said to have violated a cleady established right unless the dght's contours were suffìciently defìnite that any reasonable official i" [tls] shoes would have undetstood meaning that existing precedent . . . placed the statutolT that he was violating it, ot constitutional question beyond debate." Cigt and Cnfl. of San Francisco, Caliþmia u. Sheeharc, L35 S. Ct. 1765, 1774 (internal quotation marks and citations omitted) (alterations standard gives government officials bteathing room in original). "This Q01,5) exacting to make reasonable but mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the Iaw." Id, (intetnal quotation matks, altetation, and citation omitted). Here, cleady established law does not show the conduct unconstitutional. As noted by the Supteme Coutt established that it was unconstitutional in of the police offìcets was Plarzhffi no precedent "cleatly to shoot a fleeing driver to ptotect those whom 16 his flight might endanger." 134 S. Ct. at 2023. The facts hete ate even mote compelling than those in Plamhffi given the undisputed fact that Plaintiff was fleeing from police following an armed bank robbery (to which he later pled guilry), had exchanged gun fte with police and had struck an officet v¡ith his vehicle while attempting to flee, and exited the car still holding and pointing his ftearm. Indeed, Plaintiff has presented no evidentiary basis to suppot his theory that there was a break in the shooting and that thetefote Defendants did not genuinely and teasonably believe that Plaintiff posed a threat. Because unreasonable it was not cleatly established that Defendants' in actions were constitutionally these circumstarì.ces, the Coutt holds that Defendants are protected by qualified immunity.2 IV. CONCLUSION This court finds that there is no genuine issue of material fzct and therefote Defendants are entitled to summaly judgment. Accotdingly, the Court RECOMMENDS that Defendants' motion for summary yudgment (Docket Entry 95) be GRANTED. The On December 29,201.4, Defendants filed a second modon to dismiss in this action, based on in a document filed by Plaintiff. (Docket Entry 82.) In the document tefered to by Defendants, titled "Affidavit of Fact: Acknowledgement of Ptotective Otder and Objection to Stipulations" pocket E.rtry 80), Plaintiff stated that he "objects to the Coutt enfotcing mete statutes and denies consentment [sic] to the Jurisdiction of this Coutt ¿s it must be proven." (Id. at 1.) Plaintiff further stated: "I Chdstopher Oneal Pattetson-Bey, being in propda persona hereby objects to consent to the Jurisdiction of this Coutt and or any Court within the United States Corpotadon." (Id. at 4.) Defendants, in their motion to dismiss, atgue that Plaintiffs tejection of this Court's jutisdiction operates as a voluntary dismissal of his claim. (SeeDef.'s Br., Docket Entry 83.) Plaintiff responded to the motion to dismiss, but it is difhcult to understand his response, which mostly appears to be a recitation of the history of the "Mootish Amedcan Nationality." (Docket E.try 86.) The Coutt notes that Plaintiff has continued to file many documents subsequent to this Affidavit of Fact, suggesting that he has submitted to the judsdiction of this Coutt. A.t any rate, because the Court finds that summary judgment is ptoper, Defendants' motion to dismiss ' language should be denied as moot. 1.7 Court furthet RECOMMENDS that Defendants' motion to dismiss pocket Etttry 82) be denied s moot. e bstet Joe L. Magistrate Judge United States Dwham, Noth Catolina September , z0t5 3 18
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