Lee v. City of Richmond, Virginia et al, No. 3:2012cv00471 - Document 193 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Read Opinion for details. Signed by District Judge Robert E. Payne on 03/18/2015. (ccol, )
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Lee v. City of Richmond, Virginia et al Doc. 193 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division L JOTAYNUN LEE, as Administrator of the Estate of Jataynun MAR I 8 2015 Trayvon Fleming, Deceased, as Next Friend of J.F., K.F., CLERK, U.S. OiSTRiCT COURT N.T,, N.K., and J.W., Minor niCHMOND. VA Children of Jataynun Trayvon Fleming, Deceased, and Individually, Plaintiff, Civil Action No. 3:12cv471 v. CITY OF RICHMOND, VIRGINIA, et• al•, Defendants. MEMORANDUM OPINION This matter is before BEVINGTON'S RENEWED MOTION 180) . the Court FOR SUMMARY on DEFENDANT JUDGMENT. TODD (Docket No. For the reasons set forth below, the motion will be granted. FACTUAL AND PROCEDURAL BACKGROUND On July 14, 2010, officers of the Richmond Police Department ("RPD") arrived at a private residence located at 304 Beaufont Hill Drive in Richmond, Trayvon Fleming ("Fleming") Virginia, on a to arrest Jataynun warrant for robbery accomplished by use of a firearm and for his involvement in a Dockets.Justia.com homicide that had been committed earlier that morning. Tovar Declaration at 15 3-9, Docket No. 181-2; Fleming Wanted Poster, Docket No. 181-2. When police entered the residence, Fleming, who was lawfully inside, retreated to an upstairs bathroom and barricaded himself there. 181-2. Tovar Declaration at 1 3, Docket No. During this initial interaction, Fleming threatened to shoot any police officer or dog entering the bathroom. Prendergast Transcribed Internal Affairs Interview (Attached to Prendergast Declaration) at 4:1-6:2, 9:20-11:5, Docket No. 1811. After that initial interaction, the RPD officers called the RPD SWAT team, who Declaration at 2-4, responded to the Docket No. 181-2. been told about the threats that residence. Tovar In addition to having Fleming had communicated directly to the police officers who had attempted to arrest Fleming, the SWAT team was aware that the RPD had received information indicating that Fleming would "not go quietly" when confronted by police and that he was considered armed and dangerous. Wanted Poster, Docket No. 181-2; Tovar Declaration at Docket No. 181-2. However, 5-6, Fleming's father, the plaintiff Jotayun Lee ("Lee"), was present at the residence and informed the officers that Fleming did not have a firearm. Declaration at 113, Docket No 186-2. Lee Detective Todd James Bevington ("Bevington") responded to the residence on Beaufort Hills Drive on July 14, 2012 as a member of the RPD SWAT team. Bevington Dep. at 54:11-25; 55:1- 17, Docket No. 181-3. Bevington had been advised by his supervisors that Fleming was wanted on robbery and firearm charges; that he was a suspect in an unrelated homicide that had occurred earlier that morning; and that he was considered armed and dangerous. In addition, Bevington 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, Bevington was directed by his supervisors to take a position in the spare bedroom of the residence where the SWAT team was staging. Id. at 60:15-24. While Bevington and other SWAT team members were waiting in the spare bedroom, Fleming remained barricaded inside bathroom that was located off the master bedroom, across the hall from the SWAT team staging area. the which was Declaration of Matthew Noedel, Exhibits A and B, Docket No. 179-9. Bevington repeatedly instructed Fleming on how to peacefully surrender, telling him to come out of the bathroom with his hands up. Bevington barricaded, Dep. at Fleming 66:7-67:10, occasionally Docket No. 181-3. communicated with While police negotiators and members of the SWAT team; he repeated his claims that he was armed and again threatened police officers. Bevington Dep. at 83:6-19, Docket No. 181-3. Fleming asked the police negotiator what the officers would do if he exited the master bathroom with his "junk."^ Tovar Declaration at fl2. Docket No 181-2. This statement was passed along to members of the SWAT team inside the house. Bevington Dep. at 79.3-8, Docket No. 181-3; Moore Dep. at 44:6-45:2, Docket No 181-5; Tovar Declaration at 512, Docket No 181-2. Soon afterwards, Bevington heard Fleming repeat this 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 ready to kill me." Bevington Dep. at 79:6-80:15, Docket No. 181-3. During the course of negotiations, the negotiation team deployed a "throw phone", which was capable of providing video surveillance of Fleming inside the bathroom.^ Tovar Declaration ^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. 18 6 at 9. That is not a material dispute of fact and thus will not preclude summary judgment. ^Lee objects to the consideration of any evidence that the SWAT team obtained by viewing Fleming by using the throw phone at 111, Docket No 181-2; Bevington Dep. at 75:8-24, Docket No. 181-3; Moore Dep. at 103:17-104:3, Docket No. 181-5. The negotiation team informed Lt. Tovar, who was the SWAT commanding officer, that, based on the surveillance through the throw phone, they believed that Fleming had a gun tucked into his waistband. Tovar Declaration at Sill, Docket No. 181-2; Bevington Dep. at 81:14-17, Docket No. 181-3; Moore Dep. at 47:22-48:2, Docket No. 181-5.^ This information was relayed to Bevington and other SWAT team members who were inside the residence. The negotiations continued for several hours, after which supervisors determined that Fleming's behavior indicated that he was preparing to exit the bathroom in a violent manner. Tovar Declaration at n 13-14, Docket No 181-2. To prevent that from 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 (all parties admit that Fleming did not have a gun as he was believed to) , but rather is being offered to show the statement's effect on the hearers, overruled. it is not hearsay. Therefore, any objection is happening, SWAT officers decided to fire tear gas into the master bathroom to force Fleming to exit and surrender. Bevington and the other SWAT team members were informed of this decision and the reasons for it. Moore Dep. at 55:24-56:6, Docket No 181-5; Bevington Dep. at 83:16-25, Docket No. 181-3. The team members then put on gear and gas masks to protect themselves from the tear gas. Bevington Dep. at 91:12-15, Docket No. 181-3; Moore Dep. at 55:24-56:6, Docket No. 181-5. At this point, Bevington was officer in the team. 181-3. stationed as the second Bevington Dep. at 91:21-92:25, Docket No. The first officer 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, Docket No 181-5. Moore Dep. at At the time the gas was deployed, Officer Wesley Moore was the first officer in the SWAT line. Id. Bevington, as the second officer, was leaning over the top of Moore and was holding a rifle. Bevington Dep. at 92:18-93:10, Docket No. 181-3. The other SWAT team members, who were to follow the first two officers, were also carrying M-4 rifles and their service pistols. Moore Dep. at 39:1-24, Docket No. 181-5, Bevington Dep. at 86:21-87:14, Docket No. 181-3. Two tear gas canisters were deployed into the master bathroom where Fleming was barricaded. Bevington Dep. at 91:12- 92:4, Docket No. 181-3; Moore Dep. at 63:1-7, Docket No 181-5. Moore heard Fleming cough. Moore Dep. at 76:24-68:17, Docket No 181-5. Thereafter, Fleming exited the master bathroom into the master bedroom. It is undisputed that Fleming advanced toward the officers who were waiting approximately 13 feet away in the spare bedroom across the hall.'' Bevington Dep. at 93:11-21, Docket No. 181-3; Moore Dep. at 68:11-17, 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." Docket No. 186 at 11. That evidence, however, does not dispute the proofs that Fleming advanced, at more than a walk, toward the officers who were thireen feet away, especially considering that Moore testified that Fleming was, indeed, charging at an angle when he exited the bathroom. Moore All other testimony Fleming was advancing charging. Others say Dep. at 113:24-114:9, Docket No. 181-5. from those at the scene confirms that toward the officers. Some say he was he was moving quickly. In any event. Lee offers no evidence to the contrary, argument. 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, to them, looked like the muzzle of a gun. Moore Dep. at 72:6-73:5, Docket No. 181-5; Bevington Dep. 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. 96:2, Docket No. 181-3. Bevington Dep. at 95:23- In reality, what Moore and Bevington thought was a gun was a black women's high heeled shoe wrapped in a t-shirt.^ Moore Bevington Dep. at 96:10-11, Docket No. 181-3. and Bevington's testimony is supported internal affairs interview given by 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, after the encounter, McQuail saw a ^ Lee argues that Moore "saw the muzzle of the barrel of Fleming's ^handgun' 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 Musselwhite Dep. 32:25-33:5, and at 5: removing 12-24, Docket No 189-7. him Docket No. from the scene. 189-6; Hayes Dep. Hayes testified that, at 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 69:18-71:23, No. in Fleming's 189-7. vicinity. However, worried about getting getting him surveying Hayes scene also [Fleming] downstairs the Hayes to testified him evidence. Musselwhite, on the other hand, at handcuffed, get for Dep. to that he was Docket "more picking him up, the Id. hospital", at and than 71:14-17. 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. ®Lee appears to assert that the fact that Musselwhite recalls seeing a "white towel grey t-shirt that was fact. Docket No. or light colored towel" rather than the found on the scene creates a dispute of 187 at 10, fl8. That difference may posit a dispute, but it certainly is not a material dispute. As Fleming charged the officers, Moore, who was crouched and holding a ballistics shield, fired a single shot from his service pistol at Fleming. 181-5. Moore Dep. at 73:14-25, Docket No. That was the only shot that Moore fired, because he was concerned about keeping the shield that he was holding in front of what he believed to be Fleming's handgun. at 87:5-10; 79:10-25."' 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, Fleming was still standing, and pointing believed to be a gun at the SWAT team. 23. Bevington has what Bevington at 103:12-18; 106:1- Bevington then fired one volley of shots, paused for "less than seconds", and fired another round of shots. 107:7. at 106:24- According to Bevington, Fleming fell to the ground after the first round of shots, but attempted to get back up while continuing to brandish what Id. 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 As Moore fired his one round, Bevington shifted his shield slightly upward, states that Moore bumping Bevington's rifle. Bevington Dep. at 96:25-97:19, 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, initial shot. Id. Bevington believed that Fleming had fired the at 103:6-18. 10 what he thought was Fleming's weapon. Bevington stopped firing when Fleming rolled over, and Bevington could no longer see what he believed to be Fleming's weapon. 108:2; 113:19-114:1. In total, Provost Declaration at SIS. Bevington at 106:24fired 8 rounds. According to Bevington, the team began moving toward Fleming "immediately after" he finished firing all of his shots. No. 181-3. Bevington Dep. 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 a slightly different order of He states that, after he fired one shot, the SWAT team immediately began advancing toward Fleming. 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 I^ 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 pointing what he believed to be a weapon at the team. I*^• 82:9-24. At that point, Moore heard the shots that Bevington fired. at 83:4-12. Id. 11 Expert scene reconstruction, to the limited extent that such evidence has been allowed, also conflicts somewhat with Bevington's testimony. Lee's expert, Phillip Hayden, has stated that he placed trajectory rods in the bullet holes formed by Bevington's shots that went through the master bedroom floor to the kitchen below.® 3. Hayden Declaration, at 2-4, Docket No. 186- That evidence, construed most favorably to Lee, supports an inference that Fleming was down, or Bevington fired his two volleys. on the way down, when Taken as a whole, the testimony shows the existence of factual disputes respecting where Bevington was located when he fired the two volleys at Fleming. And, it establishes a factual dispute about whether Fleming was partially down, standing up, or on the way down when Bevington fired. After the shooting had come to an end, the RPD SWAT team secured the master bedroom and bathroom. The arrest team placed Fleming in handcuffs and took him downstairs to a waiting ambulance which transported him to MCV, where he was pronounced dead within 30 minutes. Richmond Police Department Force Investigation Team Report, Background Investigation at 3, Docket No 179-18. No gun was found on Fleming's person, in the master ® Hayden was not permitted to opine about Bevington's location during the shooting for reasons set out in a Memorandum Opinion and Order dated September 30, 2014. Docket Nos. 172 and 173. 12 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. Lee, Fleming's father and the Administrator of his Estate, filed an Amended Complaint, Docket No. 38, that presented three counts against Moore, in addition to other defendants. Count I, Id^ filed pursuant to 42 U.S.C. § 1983,® alleges that Bevington's actions constituted an unlawful seizure of Fleming's person under the Fourth Amendment^® and thus that Bevington had violated Fleming's rights under the Fourth Amendment. 9. Id. at 8- Count II alleges that Bevington 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. Id. at 9-11. Count III ® "Every person who, any statute, ordinance, under color of 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..." io«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 alleged that Bevington caused Fleming "to suffer great pain, suffering and anguish" during the July 14, 2010 standoff and subsequent shooting. Id^ at 11. On March 27, 2013, 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. 12(b)(6). Docket Nos. 79-80. Bevington filed a Motion for Summary Judgment assuming that the defendants' motions to exclude Lee's experts were granted (Docket No. 14 6) and a Second Motion for Summary Judgment assuming that the defendants' motions to exclude Lee's experts was denied (Docket No. 148). Both of these motions were denied without prejudice, because the Defendants' Motions to Exclude Experts were granted in part and denied in part. 173 and 174. Docket Nos. Defendants were permitted to file renewed summary judgment motions. Docket No. 175. Bevington filed the pending renewed motion for summary judgment, and it has been briefed and argued, and the motion is ripe for decision. APPLICABLE LEGAL FRAMEWORK I. STunmary Judgmen-t Standard Under rendered Fed. R. forthwith Civ. if the P. 56, summary pleadings, 14 judgment depositions, "shall be answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 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." Id. at 322. In order to enter summary judgment "there can be no genuine issue as to 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 and any inferences drawn therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. U.S. Indus. (1986); F.3d Co. v. Zenith Seabulk Offshore, 408, 418 (4th Cir. Radio Corp., Ltd. V. Am. 2004). 475 574, 587 Home. Assurance Co., To successfully 377 oppose a documented motion for summary judgment, the nonmoving party must demonstrate 11 417 U.S. to 317 the court that there (1986). 15 are specific facts that would create a genuine issue for trial. Lobby, Inc., 477 U.S. 242, 250 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, disposition by summary judgment is appropriate." 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 (§1983) provides that: Every person statute, usage, who, under ordinance, of any State District of Columbia, be subjected, States or any color regulation, or Territory subjects, citizen other of any custom, or or the or causes to of the person within United 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, proceeding for redress. or other proper The statute, of course, does not create a substantive cause of action. access to It the merely federal provides courts in a procedural which to vehicle seek redress violations of federal constitutional or statutory rights. V. City of Richmond, aff'd 78 F.3d 578 establish that he 875 F. Supp. (4th Cir. was 1124, 1132 1996). "deprived 16 Thus, of a of Amato (E.D. Va. 1994); to prevail. right giving secured Lee must by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Artu—Mfrs. Mut. Ins. Co. V. Sullivan, 526 U.S. 40, 49-50 (1999). There is no dispute that Bevington 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 Bevington has moved for summary judgment on the merits of Count I, asserting that the reasonably in shooting Fleming. record shows that he acted Alternatively, he seeks summary judgment on his defense of qualified immunity. "Ordinarily, it is preferable to articulate a single basis for decision and, conversely, to refrain from making alternative holdings." 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. 17 Count I: Unreasonable Amendment: A. Seizure in Violation of the Fourth The Merits Legal Principles Claims of excessive force during the course of a seizure "are properly analyzed under the Fourth Amendment's 'objective reasonableness' standard." (1986). Graham v. Connor, 490 U.S. 386, 388 In the Fourth Circuit, reasonable officer in the "[t]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 a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against interests at stake." "has countervailing governmental Swann v. City of Richmond, 498 F. Supp. 2d 847, 854 (E.D. Va. 2007) It the 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 specific circumstances of the encounter at issue. U.S. at 396. "The test of reasonableness under on the Graham, 490 the Fourth Amendment is not capable of precise definition or mechanical 18 operation", but instead "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, 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. at 396. In addition, force Bell v. Wolfish, 441 U.S. 520, 529 (1979); must officer be judged from the on scene, rather hindsight." "for the "the 'reasonableness' the of a particular use of perspective than with Graham, 490 U.S. at 396. the of a reasonable 20/20 vision of Thus, courts must allow fact that police officers are often forced to make split-second uncertain, judgments - in circumstances and rapidly evolving." that at 397. are tense, "The court's focus should be on the circumstances at the moment the force was used and on the fact that officers. . . are not often afforded the luxury of armchair reflection." Elliott v. 640, 642 (4th Cir. 1996)(citations omitted). Leavitt, 99 F.3d The Fourth Circuit "has consistently held that an officer does not have to wait until a gun is pointed at the officer before the officer is entitled to take action." 131. "The Fourth omniscience.... Officers Anderson v. Amendment need not 19 be Russell, does absolutely 247 not F.3d 125, require sure...of the nature of the threat or the suspect's intent to cause them harm - the Constitution does not act of self-protection. B. reasonable are argues and thus against several judgment that certitude precede the Russell, 247 F.3d at 132. Were Fleming's Fourth Amendment Rights Violated? Bevington right require that his did not unreasonable material actions violate inappropriate. Thus, July Fleming's seizures. disputes on 14, 2010 were Fourth Amendment Lee maintains of fact that the first task that render is to there summary determine whether there are genuine disputes of material fact. 1. Lee has The Alleged Factual Disputes identified three disputes of fact that he says foreclose summary judgment.Each will be addressed in turn. (i) Perceived Presence of a There is now no dispute that know that he was dispute of fact Fleming to have advanced toward not. The whether been them. issue the armed On "Gun" Fleming was armed for we is whether there officers when that he issue. is reasonably left Lee the a genuine perceived bathroom argues ^^Lee alleges that there are several "disputes" of fact. that 20 and the Most of these perceived disputes are based on selective citation of record or that attempt to create material disputes of fact of unimportant details. Contentions of this sort need not addressed. Therefore, the Court will focus on such of alleged disputes that are accompanied by citations to record. now the out be the the previously recited differences between the testimony of Bevington and Moore (both of whom perceived that Fleming was armed as he advanced) on the one hand, Musselwhite and Hayes (about what they saw after the shooting was over) 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. Lee's argument lacks merit. To begin, the 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 appeared to be carrying a pistol wrapped in a piece of white cloth of some kind. Both officers were 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. on a No witness contradicts them as to the circumstances that were extant just before Fleming was shot. McQuail, another member of the SWAT team, testified that he saw a shirt or a towel wrapped around Fleming's arm and that, after the shooting he saw a black woman's high-heeled shoe on the floor in the master bedroom. That, of course, corroborates the testimony given by Bevington and Moore. Musselwhite and Hayes, on whose testimony Lee predicates the existence of a genuine dispute of material fact, 21 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 light-colored 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 light-colored wounded supports, In fact, towel near rather than disputes, Bevington and Moore. that Musselwhite where Fleming lay the testimony given by 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 recall the the floor presence of nearby. a towel Nor does or a shoe Hayes' create failure a to genuine dispute of material fact because "a lack of recollection does not create an issue summary judgment." (M.D.N.C. of fact that Hubbard v. 2013)). 22 will Bohman, defeat a motion for 2013 WL 2645260 at 8 Relatedly, Lee argues that there is a conflict between Moore and Bevington about whether Fleming charged the officers as he exited conflicting the bathroom. evidence. In No 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, "the fact that officers on the scene have recollections differing the...police slightly of the cardinal facts (although the agree as to the vast bulk of the facts) does not itself generate a triable issue precluding the entry of summary judgment." Moore v. Winer, 190 F. Supp.2d 804, 806 (D. Md. 2002). 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) Bevington's Location When He Fired Lee also argues that there is conflicting evidence about Bevington's position when he fired at Fleming. As discussed above, Bevington testified that all eight shots were fired from 23 the door of the bedroom across the hall from the master bedroom where Fleming fell or, hallway between the that, by at most, a short two bedrooms. distance However, into the Moore testified immediately after he fired his sole shot at Fleming, the time that Bevington finished shooting, and Bevington was nearly on top of Fleming's body and the team was close behind. Lee relies also on the testimony of Philip Hayden which was that Bevington was not at the threshold of the staging bedroom when he Hayden's fired the five testimony Bevington's about location shots that what cannot the pierced trajectory preclude summary the floorboards. rods show judgment as to because Hayden is not permitted to use [his] measurements to extrapolate any opinions about the angles of the shots, the location of Detective Bevington as he was shooting or any recreation of the shooting. Bevington takes the view that, as to his location, the dispute is even if there is a dispute irrelevant and material fact that should preclude summary judgment. 188 at whether 15. "The Bevington critical had questions", probable cause to says thus not Docket No. Bevington, believe a that "are Fleming posed an immediate threat of serious bodily harm or whether an officer in conduct was Bevington's lawful." Id. shoes at could 15. 24 have believed Bevington's Lee is correct in asserting that the testimony of Bevington and Moore creates a dispute of fact because Moore and Bevington offer opposing testimony about Bevington's fired the eight shots at Fleming floor). Whether that dispute location when he (five of which pierced the of fact is material will be addressed below. (iii) Fleming's Location when Bevington Fired Finally, Lee argues that there is a dispute of Fleming's position when he was shot by Bevington. fact to Specifically, he asserts that there is a dispute of fact as to whether Fleming was still standing when initially shot by Bevington, or whether he fell to the floor immediately after being shot by Moore. Bevington only briefly addressed this issue and has failed directly to address the dispute between his testimony and that of Moore respecting whether Fleming was standing and advancing when Bevington Bevington takes first the fired view or that was on "there the is floor. no Instead, dispute that Detective Bevington fired shots while Fleming was attempting to get back up." There is clearly a dispute of fact that is created between Moore and Bevington's testimony respecting Fleming's when Bevington started shooting. fell immediately after being struck by Moore's bullet. 25 According to Moore, location Fleming Moore recounts that Bevington began firing when ground and attempting to stand back up. testified that he fired his first Fleming was on the Bevington, however, has burst of shots while Fleming was still standing and that he fired his second volley of shots after Fleming had Both do agree, fallen however, and was attempting to get back up. that Bevington fired his shots in two separate volleys that were very close together in time. Thus, the dispute between the two on this point is whether Fleming was on the ground when Bevington began shooting or whether he was standing and fell fired. Again, to the ground during, or before, Bevington whether this fact is material will be addressed below. 2. Materiality Analysis as to the Locations of Bevington and Fleming "[T]he material. outcome substantive Only of the law disputes suit will over under the identify facts governing Inc., 477 U.S. 242, 248 (1986). facts are might that preclude the entry of summary judgment." Lobby, which affect the law will properly Anderson v. Thus, if the Liberty disputes about Bevington's location when firing upon Fleming or Fleming's location when being fired upon could reasonably affect a determination reasonable, of whether Bevington's actions were jury's objectively they are material and summary judgment would not be 26 proper. Ultimately, both disputes of fact outlined above are not material to the resolution of this case and thus do not preclude summary judgment. Of course, the materiality of the disputed facts must be assessed on the record as a whole including the part of the record that is beyond dispute. Thus, the assessment begins with the understanding that the following facts are not disputed. On July 14, 2010, Fleming was wanted on a warrant for committing robbery with a firearm and was a suspect in a homicide that had been committed Fleming's exit that morning. from the repeated threats officers of attempting master violence to In the bathroom, against arrest hours him Fleming police. that he leading He would up to had made had told shoot any officer or canine attempting to enter the area in which he had barricaded himself. that he would not Before that, Fleming had informed others 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 claimed to have a gun in the bathroom and questioned what the officers would do if he came out of the bathroom with that gun. Bevington and Moore knew all of this information before the encounter. 27 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. Bevington, No reasonable jury could find otherwise. as well as Moore, have testified that they thought Fleming was coming at them with a gun. No one has shaken that testimony. Whether Bevington was reasonable in that belief when he fired on Fleming must be judged in perspective of the facts and circumstances known to him and that determination must not be made with 20/20 hindsight, Graham, 49 U.S. at 396. And it must be made mindful that Bevington had to make split-second judgment about how to react to Fleming's conduct, id. course, That judgment, of had to be made in perspective of the severity of the crimes at issue, whether Fleming posed an immediate threat to the safety of the officers and whether resisting arrest or attempting 28 to escape Fleming was actively arrest by fleeing. Bell V. Wolfish, 441 U.S. 520, 529 (1979); Graham, 490 U.S. at 396. Every one of those factors describe the situation confronting Bevington when he fired his first volley at Fleming. In addition he knew that another shot had been fired and thought that Fleming had fired it. Lee has not explained how the location of Bevington when he fired his doubt, were shots however, exposed affects the summary judgment. that Bevington and his to a bullet reasonably thought was or There fellow officer, bullets from Fleming's gun. what is no Moore, Bevington Whether Bevington was removed from Fleming by thirteen feet or ten feet or five feet makes no difference to the circumstances confronting the SWAT unit and Bevington as Fleming exited the bathroom and advanced toward the unit. first volley at Thus, Bevington's location when he fired the Fleming is not a material fact and thus the minor dispute over the point does not preclude summary judgment. Nor is Fleming's location material to the reasonableness of Bevington in firing the first volley because the undisputed evidence is that Bevington reasonably believed that Fleming was armed and had fired a shot (even though Moore actually had fired it) ; and Bevington was confronted with a man who faced serious criminal charges, who Bevington thought to be armed (reasonably 29 so), who presented a threat to him and other officers, and who was resisting arrest. On this record, even if Fleming was not standing up but going down because he had been hit by Moore's shot, or was down and trying to get up, Bevington was left with no viable fellow choice other officers than because, to risk his whatever own life Fleming's or that location of and posture, he at all times was pointing what Bevington thought to be a gun at Bevington and he SWAT unit. Of course, volley. a split second later Bevington fired a second Bevington's location when he fired the second volley is not any more material than his location when he fired the first volley because the second volley was after the first, and there is fired no evidence almost that immediately Bevington made any significant change of location between the two volleys. However, fired because Fleming's presents the a location somewhat testimony of when different both the second volley circumstance. Bevington and location of the holes in the floor necessitate, Moore, That and was is the at this stage of the proceedings, that Lee must be given the inference that, when the second volley was fired, Fleming was on the floor and that he was wounded, having been shot by both Moore and Bevington. 30 The issue then is whether i t would be a material fact that Fleming was on the floor when Bevington fired the second volley. The Court concludes that i t is not. The second volley was fired a split-second after the first one, and, of course, Bevington, when he fired that volley, informed by all the previously recounted facts when he fired the first volley. Moore, saw that, In addition, was just as he was Bevington, as did although Fleming was down and wounded, he also was trying to get up and, in the process, he was still pointing at the police officers what was reasonably thought to be a gun. And, Bevington knew that the man pointing what he reasonably thought was a gun had threatened to kill the police officers. He then made a split-second reaction to fire the second volley at a man who was a threat to him and other officers and who was still resisting arrest. On the record here, whether Fleming was on is the floor, or not, not material to the determination whether, under the rules of Bell and Wolfish, and the law of the circuit, Bevington acted reasonably to the presented risk when firing the second volley. The case law is shot and fallen can clear that, continue even a to pose defendant who has been a warrants the use of deadly force by officers. 25. (citing Maradiaqa v. Wilson, 31 518 F. deadly threat Docket No. Supp. 2d 760, 768 that 181 at (S.C. 2007), aff'd 272 Fed. App'x. 263 (4th Cir. 2008); Estate of Rodaers v. Smith, 2006 WL 1843435 (4th Cir. 2006)). as in Pethtel v. West Virginia, 568 F. And, here, Supp. 2d 658, 669 (N.D. W. Va. 2008), "tw]hether [the suspect] was lying prone, sitting slumped, or standing upright change the nature circumstances of in which after the the the rapidly [officers] first shot does evolving were and not chaotic required to act or the imminent threat reasonably perceived by the officers up to and at the moment immediately before the fatal shot was fired.. Hence, down is matter whether Fleming was not his a material location officers when seconds" after he standing, fact. or The material posture, Bevington fired fired the down, Fleming the first fact was second or on his way is aiming volley, one. And, that, that at "less is no the than not in dispute. 3. The dispositive issue is officer the same reasonable would Whether S\3inmary Judgment is Appropriate have in concluded that particular use of force." a whether on this circumstances threat existed [as record, "a Bevington] justifying the Anderson v. Russell, 247 F.3d at 129. Bevington was confronted with a person wanted for the violent crime of robbery who also was a 32 suspect in a murder. The suspect posed a grave threat to Bevington's safety and that of the other officers, had a gun. officers. if as Bevington reasonably thought, The suspect had And, of course, threatened to Fleming was kill Fleming the police violating the law by resisting arrest. Bevington made a split-second judgment (as he was do) entitled to under evolving circumstances." No "tense, uncertain, and rapidly Graham, 4 90 U.S. at 396. jury instructed on the applicable law could conclude that Bevington acted unreasonably in firing either the first or second volley no matter whether Fleming was standing, and trying to get up, doubt that or was falling down. Bevington acted, as And, explained above, was down there is no reasonably in firing the first volley. Accordingly, Bevington is entitled to summary judgment on the merits. QUALIFIED IMMUNITY The foregoing analysis also would yield summary judgment on the plea police qualified officers functions conduct of the from civil does reasonable in immunity. in performance of liability under § not violate officer Qualified immunity their 1983 so discretionary long as clearly established rights the shoes 33 of the protects defendant their of which would a know. Rowland v. Perry, 401 F.3d 167, 173 (4th Cir. 1994). The focus, of course, is on what the police officer reasonably perceived at the time that he acted and whether a reasonable officer armed with the had the same information, would have and have acted in like fashion. Id. same perception The doctrine of qualified immunity therefore assures that officers are not held liable for "bad guesses in grey areas;" and, transgressing bright 295, 298 (4th Cir. lines. 1992). instead, Maciariello are liable only for v. Put another way, Sumner, 793 F.2d 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 civil liability. Howard County, behind the context of Rowland v. 954 F.2d 960, immunity Perry, 965 defense 41 (4tg Cir. are circumstances." in the 1992). especially street-level police worlc, quick or decisive action F.3d at 172; face which Gooden v. "The concerns salient frequently in the requires of volatile and changing Id. The record is abundantly clear as to the facts confronting Bevington at the time he fired on Fleming. 34 Those facts need not be here repeated, but they quite clearly establish that Bevington faced what he reasonably perceived to be an inuninent deadly threat to himself and other officers. He was forced with the need to act in tense and fast-moving circumstances and to make a decision whether to fire or not. one: His choice was a simple fire and protect himself and other officers or delay to see what Fleming what do. As the Fourth Circuit has held in deciding the applicability of qualified immunity: No citizen on can police fairly expect without consequences. And no to draw a risking court can gun tragic expect any human being to remain passive in the face of an active threat Greenidge Fourth and police their his Amendment omniscience. that on must the however, suspect's her life. As illustrate, does not the require Before employing deadly force, have suspect safety Officers or Slattery or need sound poses the not reason a safety be to serious believe threat of to others. absolutely sure, of the nature of the threat or the 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. 1991); Greenidge v. decisions in Ruff in, Elliott, Rizzo, 927 F.2d 789 Slattery and 939 F.3d 213 {4th Cir. Greenidge (4th Cir. 1991). The teach that Bevington is entitled to prevail on the assertion of qualified immunity. 35 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. this case illustrates, But, as the job of a police officer is fraught with danger from those who disobey their lawful commands or resist arrest. Those who disobey a lawful 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 other acting the law affords protection to the police Officer Bevington could have delayed in firing the first and the second volleys at Fleming. the and That is the result here. Certainly, on duty facts officers known by Bevington, to injury or would have death. That To have done so, exposed him and would have been irresponsible on his part and it certainly was not required by the applicable law. 36 For the foregoing reasons, DEFENDANT RENEWED MOTION FOR SUMMARY JUDGMENT TODD (Docket No. BEVINGTON'S 180) will be granted. I t i s so ORDERED. /s/ Robert E. P-Lf Payne Senior United States District Judge Richmond, Virginia Date: March 2015 37
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