Lee v. City of Richmond, Virginia et al, No. 3:2012cv00471 - Document 191 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/18/2015. (sbea, )
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Lee v. City of Richmond, Virginia et al Doc. 191 (1 ? IN THE UNITED L iv STATES DISTRICT COURT MAR 1 8 2015 FOR THE EASTERN DISTRICT OF VIRGINIA '] Richmond Division CLERK, U.S. niSTRICT COURT RiCf;r.;o.'JD. va JOTAYNUN LEE, as Administrator of the Estate of Jataynun Trayvon Fleming, Deceased, as Next Friend of J.F., K.F., N.T., N.K., and J.W., Minor Children of Jataynun Trayvon Fleming, Deceased, and Individually, Plaintiff, Civil Action No. V . CITY OF RICHMOND, et. al•, 3:12cv471 VIRGINIA, Defendants. MEMORANDUM OPINION This MOORE'S matter is before RENEWED MOTION the Court FOR SUMMARY on DEFENDANT JUDGMENT (Docket WESLEY No. E, 178), For the reasons set forth below, the motion will be granted. FACTUAL AND PROCEDURAL BACKGROUND On July Department ("RPD") Beaufont Hill Trayvon 14, 2010, Drive in Richmond, by of the Richmond Police arrived at a private residence located at 304 Fleming accomplished officers ("Fleming") use of a Virginia, on firearm and a to arrest Jataynun warrant for his for robbery involvement in a Dockets.Justia.com homicide that had been committed earlier that morning. Declaration at Docket No. who was 3-9, 181-2. Docket No. During this any officer Prendergast Transcribed Prendergast Tovar Declaration at 1 initial interaction, police or dog Fleming, at 4:1-6:2, 3, Docket No. Fleming threatened to entering Internal Affairs Declaration) residence, retreated to an upstairs bathroom and barricaded himself there. shoot Fleming Wanted Poster, When police entered the lawfully inside, 181-2. 181-2; Tovar the Interview 9:20-11:5, bathroom. (Attached to Docket No. 181- 1. After that initial interaction, RPD SWAT team, who Declaration at 2-4, been told responded Docket No. about the the police directly to Fleming, the SWAT to that officers was the 181-2. threats team the RPD officers called the Tovar In addition to having Fleming who had aware residence. that had communicated attempted to the RPD had arrest received information indicating that Fleming would "not go quietly" when confronted by police and dangerous. Wanted Poster, at Docket No. 5-6, plaintiff Jotayun Lee that he was Docket No. 181-2. ("Lee"), considered 181-2; However, Tovar Fleming's armed Declaration father, the was present at the residence and informed the officers that Fleming did not have a firearm. Declaration at SI13, and Docket No 186-2. Lee Officer Wesley E. Bevington Hills Moore ("Bevington") responded Drive on July 14, Bevington Dep. at ("Moore") 2012 54:11-25; to and Detective Todd James the residence on Beaufort as members of the RPD SWAT team. 55:1-17, Docket No. 181-3. Moore had been advised by his supervisors that Fleming was wanted on robbery and firearm charges; that he was a suspect in unrelated homicide that had occurred earlier that morning; that he was considered armed and dangerous. Id. an and In addition, Moore was told that Fleming had made statements indicating his unwillingness to be quietly arrested and that he had threatened the police officers who had arrived to serve the arrest warrant. Id. After this briefing, Moore and the other members of the SWAT unit were directed to position themselves and to stage for making the arrest. While Moore and other SWAT team members were waiting in the spare bedroom, that was hall Fleming remained barricaded located off the master bedroom, from the SWAT team staging area. Noedel, Exhibits repeatedly A instructed and B, Docket Fleming on inside the which was bathroom across Declaration of Matthew No. how to 179-9. Bevington peacefully surrender, telling him to come out of the bathroom with his hands Bevington barricaded, Dep. at Fleming 66:7-67:10, occasionally the Docket No. 181-3. communicated with up. While police negotiators and members of the SWAT team; he repeated his claims that he was armed and again Bevington Dep. at 83:6-19, police negotiator master bathroom what with Docket No 181-2. the SWAT Docket Tovar team No. threatened Docket No. the police 181-3. officers. Fleming asked the would do "junk."^ his officers if he exited Tovar Declaration at the 112, This statement was passed along to members of inside 181-3; the Moore Declaration at house. Dep. fl2, at Docket Bevington 44:6-45:2, No Dep. at Docket 181-2. 79:3-8, No 181-5; Soon afterwards, Fleming repeated the question, asking "What are you-all going to do when I come out with my junk? What are you going to do when I come out with my shit? You-all better get Bevington Dep. at 79:6-80:15, Fleming posit that question. No. Docket No. ready to kill me." 181-3. Moore Dep. Moore at 44:6-45:2, heard Docket 179-2. During the course of negotiations, the negotiation team deployed a "throw phone", which was capable of providing video ^Lee argues that the fact that Bevington originally stated that Fleming used the words "my junk or my shit" (Bevington Internal Affairs Interview, Docket No. 186-4 at 9) creates a material dispute of fact when compared to the statements Bevington made at his deposition claiming that Fleming exclusively used "my junk." Docket No. 186 at 9. That is not a material dispute of fact and thus will not preclude summary judgment. surveillance of Fleming inside the bathroom.^ Tovar Declaration at 511, Docket No 181-2; 181-3; Moore Dep. Bevington Dep. at 103:17-104:3, at 75:8-24, Docket No. Docket No. 181-5. The negotiation team informed Lt. Tovar, who was the SWAT commanding officer, phone, that, they based believed on the that surveillance Fleming had waistband. Tovar Declaration at fll. Dep. at 81:14-17, Docket No. Docket No. a through gun tucked Docket No. 181-3; Moore the throw into his 181-2; Bevington Dep. at 47:22-48:2, 181-5.^ This information was relayed to Moore and other SWAT team members who were inside the residence. The negotiations continued for several hours, Id. after which supervisors determined that Fleming's behavior indicated that he ^Lee objects to the consideration of any evidence that the SWAT team obtained by viewing Fleming by using the throw phone because the throw phone did not record any video or audio during the stand-off. Docket No. 186 at 9. He argues that "a negative inference against defendants" should be permitted, which apparently means that he wants the Court to assume that Fleming was not seen to have a gun and that he did not communicate threats to SWAT negotiators. Id. However, the absence of evidence does not create a factual dispute in this case because there is positive evidence to show that Lee's requested "negative inference" is incorrect. ^ Lee objects that testimony about what Lt. Tovar was told by members of the negotiation team and thereafter passed along to the SWAT team staging inside the house as inadmissible hearsay. Docket No. 186 at 10. However, the testimony is not being offered for the truth of the matter asserted that Fleming did not have a gun as he was rather is hearers, overruled. being it is offered not to show hearsay. the (all parties admit believed to) , but statement's Therefore, any effect on the objection is was preparing to exit the Declaration at SISI 13-14, happening, master SWAT bathroom bathroom in violent Docket No 181-2. officers to a force decided to Fleming to and the Docket No 181-5; The team members themselves from reasons for it. Bevington Dep. fire exit tear and then the put tear on Moore at gas. and into the Id. informed of this at 55:24-56:6, Docket No. gas Bevington gas surrender. Dep. 83:16-25, gear Tovar To prevent that from Bevington and the other SWAT team members were decision manner. masks Dep. to at 181-3. protect 91:12-15, Docket No. 181-3; Moore Dep. at 55:24-56:6, Docket No. 181-5. At this point, the team. Moore was stationed as the first officer in Moore Dep. at 55:24-56:6, as the first officer in line, Docket No. 179-1. was positioned in the doorway of the spare bedroom in a squatting position, holding a ballistic shield with one hand and a pistol in the other. 38:16-24, was Docket No 181-5. leaning over the top Bevington, of Bevington Dep. at 92:18-93:10, team members, who were to Moore as and Docket No. follow the the was second officer, holding 181-3. first Moore Dep. at two 39:1-24, Docket No. Docket 181-3. No. 181-5; Bevington Dep. a rifle. The other SWAT officers, also carrying M-4 rifles and their service pistols. at Moore, at were Moore Dep. 86:21-87:14, Two tear gas canisters were deployed bathroom where Fleming was barricaded. 92:4, Docket No. 181-3; Moore Dep. Thereafter, master bedroom. the master Bevington Dep. at 91:12- at 63:1-7, Moore heard Fleming cough. Moore Dep. 181-5. into Docket No 181-5. at 76:24-68:17, Docket No Fleming exited the master bathroom into the It is undisputed that Fleming advanced toward the officers who were waiting approximately 13 feet away in the spare bedroom across the hall.'' Docket No. 181-3; Moore Dep. at Bevington Dep. 68:11-17, at 93:11-21, 71:3-17, Docket No. 181-5. Moore and Bevington both testified that, when Fleming exited the master bathroom and ran toward the SWAT team, he was pointing his hands at the SWAT team as if he was holding a gun. Moore Dep. at 71:3-17, Docket No. 181-5; Bevington Dep. at 96:1- ^ Lee appears to dispute the assertion that "Fleming exited the bathroom very quickly...while moving directly towards Detective Bevington and Officer Moore." Docket No. 181 at 5. Lee states that "[t]he SWAT officers. . .were not in the direct path of the exit from the master bathroom." evidence, however, advanced, at more does not than a Docket No. dispute the walk, toward 186 at 11. proofs the that officers That Fleming who were thireen feet away, especially considering that Moore testified that Fleming was, indeed, charging at an angle when he exited the All bathroom. Moore Dep. other testimony from at 113:24-114:9, Docket No. 181-5. those at the scene confirms that Fleming was advancing toward the officers. charging. Others say he was moving quickly. offers no evidence to the contrary, argument. Some say he was In any event, Lee relying instead only on 5, Docket No. 181-3. Moore and Bevington have testified that Fleming's hands were wrapped in cloth and that there was a black cylindrical object pointing from the end of the cloth that, them, looked like the muzzle of a gun. Docket No. 181-5; Bevington Dep. to Moore Dep. at 72:6-73:5, at 94:18-22, Docket No. 181-3. Bevington believed it to be the 9 mm handgun that Fleming had been reported to have been carrying. Bevington Dep. 96:2, what Moore and Bevington Docket No. 181-3. In reality, at 95:23- thought was a gun was a black women's high heeled shoe wrapped in a t-shirt.^ Moore internal Bevington Dep. at 96:10-11, Docket No. 181-3. and affairs Bevington's interview testimony given by is supported Sargent McQuail, by the who was also a member of the RPD SWAT team that responded to Fleming's residence. McQuail Declaration at S12, Docket No 188-15. McQuail stated that one of Fleming's arms was rolled up in a shirt or a towel and that, 5 Lee argues that Fleming's 'handgun' after the encounter, McQuail saw a Moore "saw the muzzle of the barrel of and knew that it had no hole from which a bullet could be fired." Docket No 186 at 11. That argument cites to Moore's deposition, in which he testified that he "couldn't really say [the shoe] had a hole in it" but reiterated that "it was a black object that was pointing out...[and] looked like a barrel." Moore Dep. at 72:25-73:5. Thus, the cited testimony does not in any way support Lee's assertion that Moore actually recognized that Fleming was carrying a shoe, rather than a gun. To the contrary, the testimony shows that Moore thought {and reasonably so) that Fleming had a gun. black shoe laying on the floor in the master bedroom. Interview at 12-14, Docket No. 188-15. That shoe and the blood stained t-shirt appear in photographs of the scene. 179-9, McQuail Docket No. 11-13. Sergeant Hayes and Officer Musselwhite were assigned to the "arrest team" at the time of the shooting and were tasked with securing the suspect and Musselwhite Dep. at 5: 32:25-33:5, removing 12-24, Docket No 189-7. him from the scene. Docket No. 189-6; Hayes Dep. at Hayes testified that, when he was securing the suspect and removing him from the house, he did not see any "cloth-like" material near Fleming, nor did he see any shoe in Fleming's vicinity. Hayes No. also 189-7. However, Hayes Dep. at 69:18-71:23, testified that he was Docket "more worried about getting [Fleming] handcuffed, picking him up, and getting surveying him downstairs the scene to for get him evidence. to the Id. hospital", at than 71:14-17. Musselwhite, on the other hand, recalls seeing a "white towel or light colored towel...on the ground next to the suspect"® when he entered the room, but does not recall seeing a shoe in Fleming's vicinity. Musselwhite Dep. at 16:12-14, Docket No. 189-6. 6 Lee appears to assert that the fact that Musselwhite recalls seeing a "white towel or light colored towel" rather than the grey t-shirt that was found on the scene creates a dispute of fact. Docket No. 187 at 10, S118. That difference may posit a dispute, but it certainly is not a material dispute. As Fleming and holding a charged the ballistics shield, service pistol at Fleming. 181-5. officers, Moore, fired a Moore Dep. who was crouched single shot from his at 73:14-25, That was the only shot that Moore fired, Docket No. because he was concerned about keeping the shield that he was holding in front of what he believed to be 79:10-25.'' Fleming's handgun. Id. at 87:5-10; The evidence shows that Moore's shot hit Fleming in the thigh.® What happened after Moore fired his first and only shot is the subject of slightly different testimony. stated that, when he began firing, coming toward police officers, has Fleming was still standing, and pointing believed to be a gun at the SWAT team. 23. Bevington what Bevington Id. at 103:12-18; 106:1- Bevington then fired one volley of shots, paused for "less than seconds", 107:7. and fired another round of shots. Id. at 106:24- According to Bevington, Fleming fell to the ground after ' As Moore fired his one round, Bevington states that Moore shifted his shield slightly upward, Bevington Dep. at 96:25-97:19, bumping Bevington's rifle. Docket No. 181-3. Because of the bump, Bevington did not see who fired the initial shot, nor did he see a muzzle flash. Bevington Dep. at 98:24-99:1, Docket No, 181-3. However, Bevington believed that Fleming had fired the initial shot. Id. at 103:6-18. ® Fragments from a bullet of the type used by Moore were recovered from the wall behind where Fleming was standing when Moore fired. Lee contends that there is a dispute on this point between two defense experts. there is no such dispute. However, 10 the record shows that the first round of shots, continuing to Id. but attempted to get back up while brandish what at 107:18-24. Bevington believed was a weapon. Bevington testified that he fired the second round of shots in order to neutralize the threat presented by what he thought was Fleming's weapon. Id. Bevington stopped firing when Fleming rolled over, and Bevington could no longer see what he believed to be 108:2; 113:19-114:1. Provost began Declaration moving In at toward 181-3. total, f5. Bevington According Fleming firing all of his shots. No. Fleming's weapon. to "immediately Bevington Dep. Id. at 106:24- fired 8 rounds. Bevington, after" the he team finished at 109:10-14, Docket Therefore, except for a possible movement of a short distance into the hallway between the two bedrooms, Bevington has from testified that all of his shots were fired the threshold of the bedroom door in which the SWAT team had been staging. Id^ at 110:16-111:12. Moore, events. however, describes He states that, immediately began a slightly different after he fired one shot, advancing toward Fleming. order of the SWAT team Moore Dep. at 81:24-82:3, Docket No. 181-5. At that time, Fleming "wasn't on his down feet... [but] pointed up." was laying Id. at 82:18-24. sideways with his weapon Moore went on to explain that Fleming was on the ground "probably kind of leaning up," still 11 pointing what he believed to be a weapon at the team. 82:9-24. At fired. at at 83:4-12. Id. that point, Id. Moore heard the shots that Bevington After the shooting had come to an end, secured the master bedroom and bathroom. Fleming in handcuffs and took him within 30 minutes. Richmond The arrest team placed downstairs ambulance which transported him to MCV, dead the RPD SWAT team to a waiting where he was pronounced Police Department Force Investigation Team Report, Background Investigation at 3, Docket No 17 9-18. No gun was found on Fleming's person, in the master bedroom, or in the master bathroom where Fleming had barricaded himself. Photographs of the scene reveal a woman's high-heeled shoe and a bloodied light-colored t-shirt on the floor of the master bedroom near where Fleming had fallen. Lee, Fleming's father and the Administrator of his Estate, filed an Amended Complaint, Docket No. 38, that presented three counts Count against I, filed Moore, in pursuant ®"Every person who, addition to 42 to U.S.C. other § defendants. 1983,® alleges under color of any statute, id. that ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..." 12 Moore's actions person under constituted the Fourth an unlawful Amendment^® seizure and thus of that violated Fleming's rights under the Fourth Amendment. 9, Fleming's Moore had Id. at 8- Count II alleges that Moore had violated Lee's and Fleming's children's substantive due process rights by depriving them of their liberty interest "in the companionship, care, custody, and management" of Fleming. Moore caused Fleming anguish" during shooting. Id. the I ^ at 9-11. "to July at 11. suffer 14, Count III alleged that great 2010 On March 27, pain, standoff 2013, suffering and and subsequent Counts II and III of the Amended Complaint were dismissed in their entirety and Count I was dismissed to the extent that it alleged claims on behalf of Lee individually or of Fleming's minor children under Fed. R. Civ. Pro. On 12(b)(6). September Docket Nos. 6, 2013, 79-80. Moore Judgment assuming that Defendants' were denied (Docket No. Judgment assuming that were granted (Docket 152) a Motion for Summary motions to exclude experts and a Second Motion for Summary Defendants' No. filed 149). motions to exclude experts Both of these motions were "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 13 denied without prejudice, because the Defendants' Motions Exclude Experts were granted in part and denied in part. Nos. 173 summary & 174. Defendants judgment motions. were permitted Docket No. to 175. pending renewed summary judgment motion, Docket file Moore to renewed filed the and it has been briefed and argued. APPLICABLE LEGAL FRAMEWORK I. Summary Judgment Standard Under rendered Fed. R. forthwith interrogatories, affidavits, judgment as if and if any, any material Civ. fact P. the 56, summary pleadings, admissions on judgment "shall answers depositions, file, together be to with the show that there is no genuine issue as to and that the a matter of law." moving Fed. R. party is Civ. P. entitled to f6(c). In Celtotex Corp. v. Caltrett,^^ the Supreme Court stated that Rule 56(c) requires the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." at 322. In order to enter summary judgment "there can be no genuine issue as to 417 U.S. 317 (1986) . 14 any material fact, since a complete failure to proof concerning an essential elements of the nonmoving party's case renders all other facts immaterial." Id. at 323. When reviewing a motion for summary judgment, a court must interpret the facts light most Elec. favorable Indus. (1986); F.3d and any inferences drawn therefrom in the Co. to v. the nonmoving party. Zenith Seabulk Offshore, 408, 418 (4th Radio Ltd. Cir. V. Corp., 475 Am. Home. 2004). To See Matsushita U.S. 574, 587 Assurance Co., 377 successfully oppose a documented motion for summary judgment, the nonmoving party must demonstrate to the court that there are would create a genuine issue for trial. Lobby, Inc., 477 U.S. 242, 250 specific facts that See Anderson v. Liberty (1986). "Where...the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, appropriate." disposition by summary judgment is United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). II. 42 U.S.C. § 1983 Section 1983 of Title 42 of the United States Code provides that: Every person statute, who, ordinance, under color regulation, of custom, any or usage, of any State or Territory or the District of Columbia, subjects, or causes to 15 (§1983) be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. The statute, of action. access to of course, It merely the federal does not create a substantive cause provides courts a procedural in which to vehicle seek redress violations of federal constitutional or statutory rights. v. City of Richmond, aff'd 78 F.3d 578 establish that 875 F. Supp. 1124, (4th Cir. 1996). he was 1132 Thus, "deprived of a (E.D. giving Va. of Amato 1994); to prevail. Lee must right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Mut. Ins. Co. V. Sullivan, 526 U.S. 40, 49-50 (1999). Am. Mfrs. There is no dispute that Moore was acting under color of state law at the relevant time. The asserted federal right is the right to be free of unreasonable seizure under the Fourth Amendment to the United States Constitution. DISCUSSION Moore has moved for summary judgment on the merits of Count I, asserting that the record shows that he acted reasonably in shooting Fleming. Alternatively, 16 he seeks summary judgment on his defense preferable of to qualified articulate immunity. a single "Ordinarily, basis for it decision conversely, to refrain from making alternative holdings." is and, Amato V. City of Richmond, 875 F. Supp. 1124 (E.D, Va. 1994}; aff'd 78 F.3d 578 (4th Cir. 1996) (citing Karsten v. Kaiser Found. Health Plan of the Middle Atlantic States, Cir. 1994), Inc., 36 F.3d 8, 11 (4th However, this case presents an exception predicated on judicial efficiency. Hence, each ground for summary judgment will be addressed. Count I: Unreasonable Amendment: A. Seizure in Violation of the Fourth The Merits Legal Principles Claims of excessive force during the course of a "are properly analyzed under the Fourth Amendment's reasonableness' (1986). standard." In the reasonable Graham v. Connor, Fourth Circuit, officer in the seizure 'objective 490 U.S. 386, 388 "tt]he question is whether a same circumstances would have concluded that a threat existed justifying the particular use of force." Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). "Determining whether the force used to seize an individual is 'objectively reasonable' requires nature and quality of the Amendment interests a careful intrusion on against the 17 the balancing of the individual's countervailing Fourth governmental interests at stake." Swann v. City of Richmond, 498 F. Supp. 2d 847, 854 {E.D. Va. 2007) It "has long been arrest... necessarily {quoting Graham, 490 U.S. at 396). recognized that carries with it the the right right to make to use an some degree of physical coercion or threat thereof to effect it", but the reasonableness of such physical coercion depends U.S. at 396. Amendment "The is not test capable of reasonableness of precise under definition or the Graham, specific circumstances of the encounter at issue. on 4 90 the Fourth mechanical operation", but instead "requires careful attention to the facts and circumstances of each particular severity of the crime at issue, case, including the 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. must officer judged from scene, rather Graham, fact split-second uncertain, 'reasonableness' the hindsight." "for the "the be on the 520, 529 (1979); than that police officers rapidly - in of a particular use of perspective with 490 U.S. at 396. judgments and 441 U.S. at 396. In addition, force Bell v. Wolfish, the Thus, 18 a 20/20 reasonable vision Id. at of courts must allow are often forced circumstances evolving." of that 397. to make are tense, "The court's focus should be on the circumstances at the moment the force was used and on the luxury of fact armchair 640, 642 "has consistently until a (4th Cir. gun is that officers. . . are not often afforded the reflection." "The v. 1996) (citations omitted) . Leavitt, that an officer does pointed at the officer before Fourth omniscience....Officers Anderson v. Amendment need not not have the Russell, does be 99 F.3d The Fourth Circuit held entitled to take action." 131. Elliott to wait officer is 247 F.3d 125, not absolutely require sure...of the nature of the threat or the suspect's intent to cause them harm - the Constitution does not require that certitude precede the act of self-protection. B. Russell, 247 F.3d at 132. Were Fleming's Fourth Amendment Rights Violated? Moore argues that his actions on July 14, 2010 were reasonable and thus did not violate Fleming's Fourth Amendment right against unreasonable seizures. are several material judgment inappropriate. disputes Thus, Lee maintains that there of fact the first that render task is whether there are genuine disputes of material fact. 19 summary to determine 1. The Alleged Factual Disputes Lee has identified disputes of fact that he says foreclose sununary judgment.Each will be addressed in turn. (i) Perceived Presence of a "Gun" There is now no dispute that Fleming was armed for we now know that he was not. dispute of fact Fleming to have advanced toward previously The issue is whether there is a genuine whether been armed them. recited the On officers when that differences Bevington and Moore he reasonably left issue, the Lee between bathroom argues the and that the testimony of (both of whom perceived that Fleming was armed as he advanced) on Musselwhite and Hayes (about what they saw after the shooting was over) the one hand, perceived and the testimony of creates a genuine dispute of fact whether Bevington and Moore reasonably perceived Fleming to have been armed as he advanced toward them. To begin, the Lee's argument lacks merit. critical time is when the officers fired on Fleming; and, on that point, the most pertinent evidence is that given by Bevington and Moore both of whom explained that Fleming ^^Lee alleges that there are several "disputes" of fact. Most of these perceived disputes are based on selective citation of the record or that attempt to create material disputes of fact out of unimportant addressed. details. Contentions of this sort need not be The Court will focus on what it perceives from the briefs to be Lee's dispositive points, but will address briefly some of Lee's miscellaneous points. 20 appeared to be carrying a cloth of some kind. pistol wrapped Both officers in a were piece of white clearly Fleming from the time that he left the bathroom. focused Both officers gave consistent accounts of what they saw in Fleming's hand: gun wrapped in cloth. No witness contradicts on them as to a the circumstances that were extant just before Fleming was shot. McQuail, another member of the SWAT team, saw a shirt or a testified that he towel wrapped around Fleming's arm and that, after the shooting he saw a black woman's the floor in the master bedroom. That, high-heeled shoe on of course, corroborates the testimony given by Bevington and Moore. Musselwhite and Hayes, the existence on whose of a genuine dispute whether there was a perceived gun, testimony Lee predicates of material fact as to testified only about what they saw after the shooting, not before it had occurred or while it was happening. Musselwhite said that, after the event, he saw no shoe near Fleming, but that he did see a white or lightcolored towel next to where Fleming lay wounded. Hayes did not recall seeing either a shoe or a towel near Fleming. The testimony of Musselwhite does not create any conflict with what Bevington and Moore said. saw a white or wounded supports, light-colored In fact, towel rather than disputes, 21 near that Musselwhite where Fleming lay the testimony given by Bevington and Moore. Considering the record as a whole, that neither Musselwhite nor Hayes saw a shoe near Fleming after he had been shot does not create a genuine dispute of material fact as to whether, as Fleming advanced toward the officers, carried what appeared to be a gun wrapped in a cloth. he Moreover, photographs taken at the scene show that there was a black highheeled shoe on the floor nearby. recall dispute not the presence of material create summary an of fact issue of judgment." (M.D.N.C. a Nor does Hayes' towel or a because "a lack fact Hubbard that shoe v. Bohman, that there create of will failure to genuine recollection defeat 2013 a a WL does motion 2645260 for at 8 2013)). Relatedly, Lee argues is a conflict between Moore and Bevington about whether Fleming charged the officers as he exited conflicting the bathroom. evidence. No In matter fact, how there is Fleming's no conduct such is described, it is beyond dispute that he was advancing toward the officers as he exited the bathroom. And, even if there is some slight difference in the descriptions of Fleming's pace, fact that differing the...police recollections officers of the on the scene have cardinal facts (although "the slightly the agree as to the vast bulk of the facts) does not itself generate 22 a triable issue precluding the entry of summary judgment." Moore v. Winer, 190 F. Supp.2d 804, 806 (D. Md. 2002). Even if the record is construed to find that there are disputes of fact about Fleming's pace and as to who saw the shoe and the cloth, the disputes would not be as to material facts. Of course, assessed on the materiality of the disputed the record as a whole record that is beyond dispute. facts must be including the part of the Thus, the assessment begins with the understanding that the following facts are not disputed. July 14, 2010, On Fleming was wanted on a warrant for committing robbery with a firearm and was a suspect in a homicide that had been committed that morning. from the Fleming's exit repeated threats officers attempting of In master violence to the bathroom, against arrest hours leading Fleming police. him that he to had made had told shoot He would up any officer or canine attempting to enter the area in which he had barricaded himself. Before that, Fleming had informed others that he would not surrender quietly if confronted by police. During the standoff with RPD SWAT, Fleming had repeated his threats to negotiators and to SWAT members staging inside the house. Fleming questioned what claimed the to officers have would 23 a gun do if in he the came bathroom out of and the bathroom with that gun. Bevington and Moore knew all of this information before the encounter. When Fleming left the bathroom after tear gas forced him to do so, he advanced toward SWAT team members, who were only 13 feet away. As he advanced, Fleming was holding a high-heeled shoe wrapped in a cloth with the heel pointed toward the police officers. To the officers, Fleming appeared to be advancing on them with a gun pointed in their direction. Fleming's conduct, particularly in perspective of his previous threats, created the impression that he was pointing a gun at the officers as he advanced toward them. jury could find otherwise. Bevington, No reasonable as well as Moore, have testified that they thought Fleming was coming at them with a gun. No one, and nothing cited by Lee, has shaken that testimony. Whether Moore was reasonable in that belief when he fired on Fleming must circumstances be judged in perspective of the facts known to him and that determination must made with 20/20 hindsight, Graham, 49 U.S. at 396. and not be And it must be made mindful that Moore had to make split-second judgment about how to react to Fleming's conduct, id. course, had to be made in perspective of the crimes at issue, That judgment, of severity of the whether Fleming posed an immediate threat 24 to the safety of the officers and whether Fleming was actively resisting arrest Bell V. Wolfish, 396. Every or attempting 441 U.S. one of to those arrest by 529 520, escape (1979); Graham, 490 U.S. factors describe the fleeing. at situation confronting Moore when he fired his first shot at Fleming. In sum, whether there is no genuine dispute of material fact as to Fleming exited the bathroom and advanced toward the officers carrying a high-heeled shoe wrapped in a cloth with the heel pointing toward the officers. No reasonable jury could reasonably conclude that Fleming did not appear to be armed as he advanced toward the SWAT unit as to which Moore and Bevington held the first two spots in line. (ii) Perceived Disputes About Moore's Version of Events Lee correctly argues granted where a outcome of material a that credibility summary judgment determination fact. And, he will says cannot decide that be the Moore's credibility is questionable because of a statement that he gave shortly after the event shoe. Specifically, Affairs shoe] as he about the cloth and the high-heeled Lee points out that Moore told an Internal investigator that "We actually had to unwrap it [the to see what it was that was still wrapped up in his hand went down when we actually 25 got to 'em." PLAINTIFF JOTAYNYUN LEE'S MOTION ) BRIEF IN OPPOSITION TO DEFENDANT MOORE'S FOR SUMMARY (citing Ex. JUDGMENT, p. 5 ("Plaintiff's 4, Moore's Interview). RENEWED Response," Moore also said: "Yes, we did see it when McQuail pulled the thing the shoe flow out." by Id. the That, [sic] These statements, say Lee, are called into question previously in at turn, recited says testimony Lee, creates of a Hayes and Musselwhite. credibility issue on a dispute of material fact to be decided by the jury. However, Lee does not specify what fact he thinks is placed in dispute. that the Giving Lee the benefit of the doubt, putative material fact thought to be it appears disputed is whether it was reasonable for Moore to believe that Fleming had what looked like a gun wrapped in a cloth as he advanced toward the SWAT Hayes' team. As explained previously, Musselwhite's and view of what happened after Fleming was shot is not the critical time: when Moore fired the one shot that he fired. And, to the extent that their testimony is said to cast doubt on Moore's credibility, the argument fails. That is because Musselwhite's testimony actually corroborates Moore's by showing that there was a cloth of the description given by Moore near where Fleming lay after he was shot. And, as explained previously, Hayes' failure to recall seeing a cloth or a shoe in the area is not the kind of testimony that creates a dispute at 26 all. That is particularly so here, where the photographs from the scene show both a cloth and a black high-heeled shoe near where Fleming lay after having been shot. On this record, nothing creates a credibility question as to the material fact whether Moore reasonably thought that Fleming was aiming a gun as he advanced toward the SWAT unit, and whether a reasonable officer in the same circumstances would have thought the same thing. Lee also argues that Moore's version of events has "evolved over time" credibility and that, of itself, determination. raises Plaintiff's the need Response, However, Lee cites nothing to prove the argument. for at a 5. So it fails for that reason alone. (iii) Lee's Assertion of Perceived Miscellaneous Disputes In the Introduction to his Response Brief, Lee postulates several perceived disputes. appears BRIEF in IN DEFENDANT OPPOSITION WESLEY TO They are outlined in the chart that E. RENEWED MOORE'S MOTION REPLY FOR TO SUMMARY (Docket No. 190), pp. 2 and 3 {"Moore's Reply, at instance, Moore has PLAINTIFF'S ). JUDGMENT In each shown how those postulated disputes are without proof or are irrelevant or are simply wrong. 27 Then in the body of Moore's Reply, refers to Lee And, in each instance, Moore demonstrates how the points made by Lee are record. point. or 4, 12, 11, wrong. 16, Plaintiff's unintelligible. either miss Counterstatement proof Disputed Facts 2, the his Moore addresses what without as at 4-9, Plaintiff's the point Plaintiff's or are For 17, Disputed example. Facts. Plaintiff's 19 and 21 have no basis in Disputed Disputed Facts Facts nonresponsive Disputed of Fact 18 4 and 18, to 22, the 27 26 are and 29 defendant's misapprehends what Musselwhite and Hayes said and, for reasons expressed above, the testimony of those witnesses either dispute or are not material or both. out those reasons yet again. Facts are simply not provide There no is basis for a no need to set The remaining Plaintiff's Disputed material or are not fact issues {but instead are points of law which in each instance are wrong). None of the perceived summary judgment because: are not disputes; or (c) miscellaneous disputes foreclose (a) they are not fact issues; they are not material. (b) they Thus, the matter is ripe for decision on the legally dispositive questions that are presented by the record. 28 3, Whether Sioiranary Judgment is Appropriate on the record, "a Merits The dispositive reasonable officer issue in the is same whether on this circumstances [as Moore] would have concluded that a threat existed justifying the particular use of force." Anderson v. Russell, 247 F.3d at 129. Moore was confronted with a person wanted for the violent crime of robbery who also was a suspect in a murder. That person posed a grave threat to Moore's safety and that of the other officers, Moore reasonably thought, Fleming had threatened to kill the police officers. a gun. if as Fleming had And, of course, Fleming was violating the law by resisting arrest. Moore made a split- second do) judgment uncertain, U.S. at No and (as he rapidly was entitled evolving to circumstances." under "tense, Graham, 490 396. jury instructed on the applicable law could conclude that Moore acted unreasonably in firing the shot that he fired while Fleming was advancing on him and the SWAT unit with what Moore reasonably Accordingly, Moore thought is was a entitled merits. 29 gun to wrapped summary in a judgment towel. on the 4. Whether Summary Qualified Immunity Judgment Is Appropriate: The foregoing analysis also would yield summary judgment on the plea police of qualified officers functions in from civil immunity. the Qualified performance of liability under § immunity their 1983 so protects discretionary long as their conduct does not violate clearly established rights of which a reasonable officer in the shoes of the defendant would Rowland v. Perry, 401 F.3d 167, 173 (4th Cir. 1994). know. The focus, of course, is on what the police officer reasonably perceived at the time that he acted and with the same information, whether a reasonable officer armed would have had the same perception and have acted in like fashion. Id. The doctrine of qualified immunity therefore assures that officers are not held liable for "bad guesses in grey areas;" and, transgressing bright lines. 295, 298 (4th Cir. 1992) . instead, Maciariello are liable only for v. Sumner, 793 F.2d Put another way, qualified immunity affords officers additional breathing room for decisions made on the spot. Va. Merchant v. Fairfax, 778 F. Supp.2d 636, 647 (E.D. 2011). A fundamental purpose of qualified immunity is the need to avoid deterring police officers from engaging in vigorous law enforcement in difficult situations for fear that they will face 30 civil liability. Howard County, behind the Rowland v. 954 F.2d 960, immunity Perry, 965 defense 41 F.3d at 172; (4tg Cir. 1992) . are especially context of street-level police work, Gooden v. "The concerns salient in the which frequently requires quick or decisive action in the face of volatile and changing circumstances." Id. The record is abundantly clear as to the facts confronting Moore at the time he fired on Fleming. Those facts need not be here repeated, but they quite clearly establish that Moore faced what he reasonably perceived to be an imminent deadly threat to himself and other officers. in tense and fast-moving whether to fire or not. He was forced with the need to act circumstances and to make a His choice was a simple one: decision fire and protect himself and other officers or delay to see what Fleming what do. As the Fourth Circuit has held in deciding applicability of qualified immunity: No citizen can fairly expect to draw a gun on police without risking tragic consequences. And no court can expect any human being to remain passive in the face of an active threat on his or her life. As Greenidqe and Slattery illustrate, the Fourth Amendment does not require omniscience. Before employing deadly force, police must have sound that the suspect poses their safety or the 31 reason to believe a serious threat to safety of others. the Officers need not be absolutely sure, however, of the nature of the threat or the suspect's intent to cause them harm - the Constitution does not require that certitude precede the act of self-protection. Id. at 644. See also Slattery v. Rizzo, 1991); Greenidqe v. decisions in Ruffin, Elliott, 927 F.2d 789 Slattery and 939 F.3d 213 (4th Cir. Greenidqe (4th Cir. 1991). The teach that Bevington is entitled to prevail on the assertion of qualified immunity. CONCLUSION Without doubt, police officers who are doing their duty, whether executing an arrest warrant or otherwise, are obligated to exercise only such force as is reasonably necessary. But, as this case illustrates, the job of a police officer is fraught with danger resist from arrest. those who disobey Those who disobey a their lawful lawful commands or command or resist arrest make it necessary for police officers to use reasonable force. And, as this case proves, the use of reasonable force sometimes entails for the law violator or the resistor the risk that he will be hurt or killed. When that happens, the law does not sanction the vilification of, or the imposition of liability on, the police reasonably. officer. officer Instead, who is doing his duty and acting the law affords protection to the police That is the result here. 32 Certainly, Officer Moore could have delayed in firing the shot that he fired at Fleming. known by Moore, would have injury or death. To have done so, on the facts exposed him and other officers to That would have been irresponsible on his part and it certainly was not required by the applicable law. For the RENEWED MOTION foregoing FOR reasons, SUMMARY DEFENDANT JUDGMENT (Docket WESLEY No. E. 178) MOORE'S will granted. I t i s so ORDERED. /s/ Robert E. fiLP Payne Senior United States District Judge Richmond, Virginia Date: March , 2015 33 be
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