UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1382
ESTATE OF TARIK K. RODGERS, by and through his
administrators Michael Rodgers and Brenda
Rodgers; MICHAEL RODGERS, as parent of the
decedent; BRENDA RODGERS, as parent of the
decedent,
Plaintiffs - Appellants,
versus
STEVE SMITH, individually and in his official
capacity as Chief of Police of the City of
Williamston Police Department, North Carolina;
KEITH ROACH, individually and in his official
capacity as the Sheriff for Martin County;
WALTER J. FARROW, III, individually and in his
official capacity as a Martin County Deputy
Sheriff; WILLIAM R. WATERS, JR., individually
and in his official capacity as a Williamston
North Carolina police officer; MELANIE COX,
individually and in her official capacity as a
Williamston North Carolina police officer;
CHARLIE BROWN, individually and in his
official capacity as a Williamston North
Carolina police officer; ELVIE FORNEY, III,
individually and in his official capacity as a
Williamston North Carolina police officer;
SCOTT MCFARLAND, individually and in his
official capacity as a Martin County Deputy
Sheriff; BRIAN EDMONDSON, individually and in
his official capacity as a Martin County
Deputy Sheriff; BRIAN HARDISON, individually
and in his official capacity as a Williamston
North Carolina police officer; TRAVIS COWAN,
individually and in his official capacity as a
Williamston North Carolina police officer;
STACEY PIPPIN, individually and in his
official capacity as a Williamston North
Carolina police officer; DAVID CROSS,
individually and in his official capacity as a
Martin County Deputy Sheriff; THE CITY OF
WILLIAMSTON, NORTH CAROLINA,
Defendants - Appellees,
and
DONNIE PITTMAN, individually and in his
official capacity as the County Manager for
Martin County, North Carolina; MARTIN COUNTY,
NORTH CAROLINA,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CA-03-44-4-H)
Argued: December 1, 2005 Decided: June 26, 2006
Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and Walter D.
KELLEY, Jr., United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed by unpublished opinion. Chief Judge Wilkins wrote the
majority opinion, in which Judge Kelley joined. Judge Gregory
wrote an opinion concurring in part and dissenting in part.
ARGUED: Teresa Louise Smallwood, Windsor, North Carolina; Robert
Arlington Berry, Harrisburg, Pennsylvania, for Appellants. ON
BRIEF: Gary S. Parsons, BAILEY & DIXON, Raleigh, North Carolina;
Mark Allen Davis, WOMBLE, CARLYLE, SANDRIDGE & RICE, Raleigh, North
Carolina, for Appellees. ON BRIEF: K. Jameson Lawrence, Baltimore,
Maryland, for Appellants. Gavin B. Parsons, BAILEY & DIXON,
L.L.P., Raleigh, North Carolina, for Appellees S. Smith, W. R.
Waters, M. Cox, C. Brown, E. Forney, B. Hardison, T. Cowan & City
of Williamston.
2
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
WILKINS, Chief Judge:
The Estate of Tarik K. Rodgers (the Estate) brought this
federal civil rights action, see 42 U.S.C.A. § 1983 (West 2003),
claiming violations of the Fourth Amendment in connection with the
death of Tarik Rodgers (Rodgers). The Estate now appeals a
decision of the district court granting summary judgment, on the
basis of qualified immunity, to certain of the defendants.1 For
the reasons set forth below, we affirm.
I.
The pertinent facts, viewed in the light most favorable to the
Estate, see Wilson v. Flynn, 429 F.3d 465, 466 (4th Cir. 2005), are
as follows. On April 14, 2002, a Martin County, North Carolina
Sheriff’s deputy served a restraining order on Rodgers. The order
prohibited Rodgers from coming into contact with his girlfriend,
Angela Freeman, and their two children.
At approximately 10:00 that evening, Rodgers drove to
Freeman’s house and abducted her at gunpoint. He drove her to a
remote area, where they discussed the protective order. After
resolving their differences, they engaged in consensual sex.
Rodgers was upset about his conduct that evening and wondered aloud
1
The district court had previously dismissed other claims
against these defendants and the claims against other defendants.
The Estate does not appeal those dismissals.
3
to Freeman how he was going to explain himself to their children.
At one point he asked Freeman to shoot him, but she refused.
Around midnight, Rodgers drove by Freeman’s home to see if any
police officers were there. (Although Rodgers had warned those
present in Freeman’s home not to call the police, the police had
nevertheless been contacted and informed that Rodgers had abducted
Freeman at gunpoint.) Rodgers eventually passed a patrol car and
“took off.” J.A. 93 (internal quotation marks omitted). A high-
speed chase ensued that involved Martin County Deputy Sheriff
Walter Farrow and City of Williamston, North Carolina police
officers William Waters, Elvie Forney, Melanie Cox, and Charles
Brown. The chase, which continued until nearly 2:00 a.m. on the
morning of April 15, was later joined by Scott McFarlane, a plain-
clothes narcotics officer from another jurisdiction. The officers
engaged in the chase were aware that Rodgers had abducted Freeman
and that he was considered armed and dangerous.
Rodgers ended the chase by stopping abruptly in a parking lot,
causing Officer Waters to crash into the rear of Rodgers’ vehicle.
Officer Waters exited his vehicle with his trained police dog.
Officer Waters released the dog, which mistakenly attacked Officer
McFarlane, biting him on the left leg.
As Officer Waters was commanding the police dog to release
Officer McFarlane, Rodgers was attempting to exit his vehicle
through the damaged driver’s side door, and the other officers who
4
had been involved in the chase were approaching Rodgers’ vehicle.
Freeman, who was still in the passenger seat of the automobile,
heard Rodgers saying “holdup” as he tried to get out. Id. at 109.
Rodgers had his hands up and, at that point, had nothing in them.
However, Freeman did not notice whether Rodgers’ weapon, which had
been between his seat and the center console, was still there. As
Rodgers emerged from the car, Freeman could only see his left side,
not his right.
Officer Brown grabbed Rodgers by the shirt to get him out of
the car. Rodgers did not have a weapon at that time, but as Brown
was pulling him out of the vehicle, Rodgers leaned back in and
grasped his firearm. Officer Brown yelled “Gun!” and backed away
from the vehicle. Officer Waters heard this warning and saw
Rodgers emerging from his vehicle. Officer Waters did not see a
weapon,2 but he observed that Rodgers had his right hand under his
shirt. Deputy Farrow, however, did observe Rodgers emerge from his
vehicle with a firearm in his right hand. Officer Waters deployed
the police dog, which initially engaged Rodgers by the arm.
2
The record contains three evidentiary items concerning
Officer Waters’ observations: the State Bureau of Investigation
(SBI) statement he made shortly after the incident, an affidavit
sworn in late November 2004, and a transcript of his deposition
testimony, given in October 2004. The affidavit indicates that
Officer Waters saw Rodgers with a firearm before he deployed the
police dog, while the SBI statement indicates that he did not see
the weapon until after the deployment. Officer Waters’ deposition
testimony (at least the portion included in the record) does not
directly address this topic. We assume the truth of the SBI
statement, as that is most favorable to the Estate.
5
Officer Waters then saw Rodgers point the firearm at him (Officer
Waters). In the ensuing seconds, Officer Waters and Deputy Farrow
fired their weapons. Bullets from Officer Waters’ firearm struck
Rodgers multiple times, killing him.
Some of the events surrounding the shooting were captured on
videotape by a camera located in Officer Forney’s patrol vehicle.
The recording begins as Officer Forney turns his vehicle to
approach the crash scene. Officer Forney stopped behind Deputy
Farrow’s vehicle, thus placing Deputy Farrow’s vehicle between the
video camera and Rodgers’ and Officer Waters’ vehicles.
At 1:50:56 on the recording, Deputy Farrow can be seen in the
center of the screen, climbing up the side of his vehicle from
behind the open driver’s side door. (He later testified that he
was trying to stay out of the way of the police dog.) Officer
McFarlane is to the left of Deputy Farrow’s vehicle, crouched on
the ground with his firearm in his right hand. At 1:51:01, Officer
Waters comes into view from the left of the screen with the police
dog. Officer Waters brings the dog forward a few feet and releases
it, at which point the dog is out of view in front of Deputy
Farrow’s vehicle. Having released the dog, Office Waters moves
forward a few more steps and appears to be quite close to Rodgers.
As Officer Waters deploys the dog, Rodgers can be seen.
Because of the location of Deputy Farrow’s vehicle with respect to
the video camera, Rodgers at first is viewable only through the
6
back and front windshields of Deputy Farrow’s vehicle. He appears
to be leaning slightly forward, and his arms are contrasted against
the white shirt he is wearing. At 1:51:03, Rodgers appears to rise
up, raising his left arm. Deputy Farrow is standing on the ground
behind the driver’s side door of his vehicle, and Officer McFarlane
is kneeling a few feet to the left. Both officers have their
weapons drawn. At 1:51:04, Rodgers’ left arm has come down and he
is falling backward, evidently having been engaged by the police
dog. Officer McFarlane is now standing on his uninjured right leg.
At 1:51:06, Rodgers is out of view, Officer Brown is backing away,
and Officer McFarlane has advanced a small distance. Officer
Forney comes into view on the left, behind the other three
officers.
Rodgers appears again at 1:51:07, coming toward the officers
as he falls. Rodgers has moved to the left of Deputy Farrow’s
vehicle and is no longer obscured by it. He is moving sideways and
is facing the video camera; thus, he is falling to his right,
toward the officers. Two muzzle flashes can be seen as Officer
Waters draws and fires his weapon. As Rodgers falls to the ground,
his firearm can be seen leaving his hand and landing a few feet
away. At 1:51:08, Rodgers is on the ground and now unarmed, and
Officer Waters fires again. At 1:51:10-11, three more muzzle
flashes are seen from Officer Waters’ weapon. The other
officers--except Deputy Farrow, who continues to use the door of
7
his vehicle as a shield--back away as the incident ends. Rodgers
is lying on the ground but is still being pulled by the police dog,
which is out of view but evidently has engaged Rodgers’ leg. The
time elapsed from when Rodgers first appears on the video recording
until the firearm is seen leaving his hand is no more than seven
seconds.
Rodgers was transported to the hospital and pronounced dead.
Examination of the body revealed that Rodgers had been shot
multiple times in the head and body. He also exhibited bite marks
on his right arm, hand, abdomen, and thigh. It is undisputed that
shots fired by Officer Waters killed Rodgers; Deputy Farrow
discharged his weapon but did not hit Rodgers, and Officer
McFarlane never discharged his weapon.
The Estate subsequently brought this action alleging multiple
claims against the officers involved in the shooting, other
individuals, and Martin County and the City of Williamston. As is
relevant here, the Estate alleged that Rodgers’ Fourth Amendment
rights were violated by the deployment of the police dog without
prior warning and by the use of deadly force by Deputy Farrow and
Officer Waters. We address each of these claims below.
II.
Government officials performing discretionary functions are
entitled to qualified immunity from liability for civil damages to
8
the extent that “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity protects “all but the plainly incompetent or
those who knowingly violate the law,” Malley v. Briggs, 475 U.S.
335, 341 (1986); it protects law enforcement officers from “bad
guesses in gray areas” and ensures that they are held liable only
“for transgressing bright lines,” Maciariello v. Sumner, 973 F.2d
295, 298 (4th Cir. 1992). Because qualified immunity “is an
entitlement not to stand trial or face the other burdens of
litigation,” Saucier v. Katz, 533 U.S. 194, 200 (2001) (internal
quotation marks omitted), the question of its applicability should
ordinarily be resolved at the summary judgment stage, see
Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005).
When a defendant asserts entitlement to qualified immunity,
the court must consider two questions. The first is “whether a
constitutional right would have been violated on the facts alleged”
by the plaintiff. Saucier, 533 U.S. at 200. If so, the next
question is whether the right asserted was clearly established at
the time of the alleged violation. See id. The law is clearly
established “not only when the very action in question has
previously been held unlawful, but also when pre-existing law makes
the unlawfulness of the act apparent.” Meeker v. Edmundson, 415
F.3d 317, 323 (4th Cir. 2005) (internal quotation marks omitted).
9
On appeal, we review de novo the resolution of these questions by
the district court. See Rogers v. Pendleton, 249 F.3d 279, 285
(4th Cir. 2001).
The right the Estate alleges was violated here is Rodgers’
Fourth Amendment right to be free of unreasonable seizures, a right
that includes seizures accomplished by excessive force. See Jones
v. Buchanan, 325 F.3d 520, 527 (4th Cir. 2003). The test for
whether force employed to effect a seizure is excessive is one of
“objective reasonableness under the circumstances.” Graham v.
Connor, 490 U.S. 386, 399 (1989) (internal quotation marks
omitted).
A. Excessive Force--Deputy Farrow
The Estate first contends that the district court erred in
granting summary judgment to Deputy Farrow. There is no dispute
that while Deputy Farrow did fire his weapon, no bullets from that
weapon struck Rodgers. Based on this, the district court concluded
that Deputy Farrow had not seized Rodgers within the meaning of the
Fourth Amendment. The Estate disputes this conclusion, maintaining
that it is sufficient that Deputy Farrow intended to achieve
Rodgers’ submission through the use of force. We disagree.
“From the time of the founding to the present, the word
‘seizure’ has meant a taking possession. For most purposes at
common law, the word connoted not merely grasping, or applying
physical force to, the animate or inanimate object in question, but
10
actually bringing it within physical control.” California v.
Hodari D., 499 U.S. 621, 624 (1991) (internal quotation marks &
citations omitted; emphasis added). Thus, a seizure occurs only
when there is a physical touching or a submission to a show of
authority.3 See id. at 625-26; United States v. Letsinger, 93 F.3d
140, 143 (4th Cir. 1996). Here, there was no seizure because the
bullets from Deputy Farrow’s weapon never touched Rodgers. See
Carr v. Tatangelo, 338 F.3d 1259, 1267, 1270-71 (11th Cir. 2003)
(noting that excessive force claim asserted by individual who was
shot at by law enforcement officers, but not touched by bullets,
did not involve Fourth Amendment seizure).
B. Excessive Force--Deployment of Police Dog
The Estate next contends that the district court erred in
granting summary judgment on the Estate’s claim that Officer Waters
unreasonably deployed the police dog without first warning Rodgers.
See Vathekan v. Prince George’s County, 154 F.3d 173, 178 (4th Cir.
1998) (“An attack by an unreasonably deployed police dog in the
course of a seizure is a Fourth Amendment excessive force
violation.”).
This court has twice addressed the constitutionality of the
deployment of a police dog without prior warning. In Kopf v. Wing,
942 F.2d 265, 266 (4th Cir. 1991), law enforcement officers
3
The Estate does not claim that Rodgers submitted to a show
of authority by Deputy Farrow, or by any other officer.
11
deployed a police dog without prior warning on two suspects who
were hiding in an “extremely narrow passage” between a shed and a
fence and who were thought to be armed. This court concluded that
the officer responsible for the deployment was not entitled to
summary judgment on the basis of qualified immunity, reasoning that
failure to provide a warning and time for the suspects to surrender
was unreasonable, given that they were surrounded and unable to
escape. See id. at 268. In Vathekan, the facts viewed in the
light most favorable to the plaintiff indicated that a law
enforcement officer deployed a police dog, without prior warning,
into a residence that he believed had been broken into. See
Vathekan, 154 F.3d at 176-77. This court concluded that doing so
was unreasonable, see id. at 180, and noted that “Fourth Circuit
precedent existing in 1995 clearly established that failure to give
a warning before releasing a police dog is objectively unreasonable
in an excessive force context,” id. at 179.
Citing Kopf and Vathekan, the Estate contends that deployment
of a police dog without a verbal warning is always objectively
unreasonable. This cannot be so, however. As noted in Vathekan
itself, a Fourth Amendment excessive force claim is evaluated under
the reasonableness standard set forth in Graham. See Vathekan, 154
F.3d at 178; see also Kopf, 942 F.2d at 267-68 (quoting Graham).
The application of this test “requires careful attention to the
facts and circumstances of each particular case, including the
12
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. Moreover, “[t]he
calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments--in
circumstances that are tense, uncertain, and rapidly evolving--
about the amount of force that is necessary in a particular
situation.” Id. at 396-97. Thus, Vathekan cannot be viewed as
holding anything more than that the unwarned deployment at issue in
that case was unreasonable.
Applying this test to the particular facts that faced Officer
Waters when he deployed the police dog without first warning
Rodgers, we conclude that there was no Fourth Amendment violation.
When Officer Waters deployed the police dog, he had heard Officer
Brown shout “Gun!”, and he observed that Rodgers’ right hand was
out of view under his shirt.4 These observations were combined
with Officer Waters’ knowledge that Rodgers had kidnapped his
4
Citing Freeman’s statement to the police and her deposition
testimony, the Estate asserts that there is “compelling evidence
that the unarmed ... Rodgers had his hands in the air when he was
viciously attacked by the K-9 Officer.” Br. of Appellants at 27.
As set forth in Part I.A., however, Freeman’s statement and
deposition testimony establish that she viewed Rodgers’ hands only
for a brief period as he began to emerge from his vehicle. The
uncontradicted testimony of officers outside the vehicle--who
observed Rodgers when Freeman could not--and what can be seen on
the videotape indicate that Rodgers’ hands were not raised in
surrender when the police dog was deployed.
13
girlfriend at gunpoint, had led police on a high-speed chase, and
had stopped abruptly in a manner that caused Officer Waters’
vehicle to collide with Rodgers’ vehicle. At the time of the
deployment, Officer Waters was no more than 10 feet away from
Rodgers. Officer Waters testified during his deposition that he
deployed the dog without warning because “I was close and there was
no cover between [Rodgers] and I. And I didn’t want to draw any
more attention to myself than I had to.” J.A. 285. Under these
circumstances, we cannot say that Officer Waters’ judgment was an
unreasonable one. We therefore conclude that there was no Fourth
Amendment violation in the manner Officer Waters deployed the
police dog.
Even if Officer Waters’ deployment of the police dog without
prior warning did violate the Fourth Amendment, the unlawfulness of
his conduct was not clearly established on April 15, 2002. Kopf
and Vathekan stand at most for the principle that the Fourth
Amendment is violated when an officer who faces no immediate threat
deploys a police dog without prior warning. For the reasons set
forth above, that was not the case here.
C. Excessive Force--Shooting
The Estate next contends that Officer Waters used excessive
force in shooting Rodgers. “The intrusiveness of a seizure by
means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S.
1, 9 (1985). Nevertheless, a police officer may employ deadly
14
force when the officer “has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the
officer or to others.” Id. at 11; see Cox v. County of Prince
William, 249 F.3d 295, 299 (4th Cir. 2001).
The record evidence, viewed in the light most favorable to the
Estate, supports the conclusion that when Rodgers initially emerged
from his vehicle, his hands were up, and they were empty. This
much can be reasonably inferred from Freeman’s testimony and from
the testimony of Officer Brown. We will therefore assume that at
that point, the use of deadly force would have violated the Fourth
Amendment. However, no deadly force was used then. Rather, the
uncontradicted record evidence establishes that at some point after
initially emerging from the car, Rodgers acquired his firearm,
either by reaching back into the car and grabbing it (as Officer
Brown’s testimony would indicate), or by some other means (such as
removing it from the waistband of his pants, an inference
consistent with Freeman’s testimony). Further, the uncontradicted
record evidence indicates that Officer Brown shouted “Gun!” and,
critically, that Rodgers waved the weapon around and pointed it
directly at Officer Waters and Deputy Farrow. Indeed, Officer
Waters testified that he saw Rodgers point the firearm at him after
Rodgers had been engaged by the police dog. When Officer Waters
was presented with these circumstances, he also knew that Rodgers
had abducted his estranged girlfriend at gunpoint, had led officers
15
on a lengthy high-speed chase, and had caused one of the pursuing
vehicles to crash into his own. We therefore hold that Officer
Waters’ use of deadly force was not objectively unreasonable in
light of the circumstances known to him at the time of the
shooting.
The Estate further contends, however, that even if the use of
deadly force was justified when Officer Waters fired the initial
shots, that justification ended when Rodgers fell to the ground.
We disagree. The reasonableness of an officer’s actions rests on
the information possessed by the officer at the moment that force
is employed. See Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.
1996). Therefore, “force justified at the beginning of an
encounter is not justified even seconds later if the justification
for the initial force has been eliminated.” Waterman v. Batton,
393 F.3d 471, 481 (4th Cir. 2004); see Hopkins v. Andaya, 958 F.2d
881, 887 (9th Cir. 1992) (per curiam) (holding that second use of
deadly force was unreasonable when “the exigency of the situation
lessened dramatically” after the first use of deadly force).
In Elliott, we assessed the reasonableness of the use of
deadly force by police officers who had placed a suspect, with his
hands cuffed behind his back, in a police cruiser. See Elliott, 99
F.3d at 641-42. Moments later, the officers observed the suspect
pointing a firearm at them, and they fired 22 shots in a matter of
seconds, killing the suspect. See id. at 642. We rejected the
16
contention that the number of shots fired rendered the use of force
excessive, noting that the shooting took place in a matter of
seconds. See id. at 643. “That multiple shots were fired does not
suggest the officers shot mindlessly as much as it indicates that
they sought to ensure the elimination of a deadly threat.” Id. In
contrast, in Waterman we considered a situation in which officers
fired at a suspect as he accelerated his vehicle toward and then
past them. See Waterman, 393 F.3d at 474-75. We held that
officers exceeded constitutional bounds by continuing to fire after
the vehicle passed them, at which point the officers knew or should
have known that the immediate threat of harm had passed. See id.
at 482.
We conclude that Elliott is controlling here. The videotape
establishes that Rodgers fell to the ground, with his arms in the
vicinity of his waist, no later than 1:51:08. At this time,
Rodgers appears to be slightly curled up, thus presenting the top
or back of his head to Officer Waters. Only two seconds later, at
1:51:10, Officer Waters fires three more shots. Importantly,
although Rodgers’ firearm left his hands as he fell, nothing in the
record indicates that Officer Waters knew that Rodgers had dropped
his weapon, and thus was no longer a threat. We conclude that on
this evidence, a reasonable factfinder could only conclude that
Officer Waters was acting to ensure the neutralization of a deadly
threat.
17
Even if the second volley of shots were unconstitutional, that
unconstitutionality was by no means clearly established as of
April 15, 2002. Waterman required us to decide whether it was
clearly established in November 2000 that an officer may not use
deadly force in the seconds after a serious threat had abated. See
Waterman, 393 F.3d at 482-83. We concluded that although other
circuits had reached this conclusion prior to the relevant time,
the Fourth Circuit had not. See id. at 483. In light of the
uncertainty of the law existing at the time of the incident, we
held that the unconstitutionality of the use of force in the
seconds after a threat has abated was not clearly established. See
id. Because the law on this point did not become clear until 2004,
when Waterman was decided, we conclude that even if Officer Waters
had violated the Constitution, he would be entitled to qualified
immunity on the basis that the unconstitutionality of his actions
was not clearly established at the time of the incident.5
5
In light of our conclusion that all of the officers involved
in the incident are entitled to qualified immunity, the Estate’s
claims against Martin County Sheriff Keith Roach and against the
City of Williamston necessarily fail. See Kopf, 942 F.2d at 269
(noting that municipal liability “is derivative of, but narrower
than, the officers’”).
18
III.
This case is no doubt a tragic one. It is possible, as the
Estate contends, that Rodgers was attempting to surrender when he
was engaged by the police dog and shot at by the officers. Even if
this was the case, however, the circumstances presented to the
officers at the outset of the encounter--the kidnapping, the high-
speed chase, the wielding of a firearm and pointing it at the
officers--gave them probable cause to believe otherwise, and to use
deadly force to eliminate a serious and immediate threat to their
lives. We therefore affirm the district court.
AFFIRMED
19
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority’s conclusion that Deputy Farrow did
not seize Rodgers within the meaning of the Fourth Amendment.
Accordingly, I concur that this officer is entitled to qualified
immunity. However, because I cannot conclude as a matter of law
that Officer Waters’ deployment of his police dog was objectively
reasonable under the circumstances, I dissent from the majority’s
holding that this defendant is also entitled to qualified immunity.
“An attack by an unreasonably deployed police dog in the
course of a seizure is a Fourth Amendment violation.” Vathekan v.
Prince George’s County, 154 F.3d 173, 178 (4th Cir. 1998). As the
majority recognizes, this court has twice addressed the issue of
whether releasing a police dog without issuing a prior warning
constituted unreasonable deployment. See id.; Kopf v. Wing, 942
F.2d 265 (4th Cir. 1991). In both cases, this court concluded that
it did. In this case, it is undisputed that Officer Waters
deployed his police dog against the decedent without issuing a
prior warning. The majority, however, distinguishes the
circumstances faced by Officer Waters in this case from those faced
by the officers in Vathekan and Kopf, apparently on the grounds
that Waters, unlike the officers in those cases, faced an imminent
threat of harm. See Op. at 14-15. Accordingly, the majority
concludes that it was not unreasonable for Waters to deploy his dog
without prior warning. In my view, however, Waters did not face an
20
imminent threat from Rodgers, and, thus, I cannot meaningfully
distinguish the circumstances of this case from those of Kopf.
Although the majority provides a brief summary of the facts of
Kopf, I believe that a more complete recitation is required. After
receiving a radio report of an armed robbery, police officers
initiated a high-speed pursuit of the vehicle in which the suspects
were riding. Kopf, 942 F.2d at 266. Shortly thereafter, the
suspects abruptly stopped their car and fled on foot. Id. After
a cursory search of the vehicle failed to uncover the handgun used
in the robbery, the officers reasonably concluded that the suspects
likely were armed. Id. Although officers apprehended one of the
three suspects during the ensuing foot pursuit, two suspects were
able to conceal themselves behind a shed in the backyard of a
residential neighborhood. Id. The suspects’ hiding place “was an
extremely narrow passage between the shed’s wall and a fence.” Id.
After the officers located these defendants and surrounded the
shed, one officer deployed a police dog into the passageway without
a forewarning. Before the officers entered the passageway, the
police dog severely mauled the suspects. See id. at 267.
In reviewing the propriety of the district court’s grant of
summary judgment in favor of the officer who had deployed the dog,
this court concluded that he was not entitled to qualified
immunity. Notwithstanding the officer’s reasonable belief that the
suspects were armed, the court concluded that the officer’s failure
21
to provide a warning (and therefore an opportunity to surrender)
before deploying the dog was unreasonable. See id. at 268. As the
majority recognizes, central to this conclusion was this court’s
finding that the suspects were surrounded and unable to escape.
See id.
The majority relies on Officer Waters’ knowledge of the
circumstances leading up to the high speed pursuit as well as his
statements regarding his perceptions of Rodgers once that pursuit
ended to conclude that Waters acted reasonably in deploying his
police dog without warning. However, the evidence in the record,
when viewed in the light most favorable to the decedent, portrays
a scene indistinguishable from the one faced by the officers in
Kopf.
The video of this incident indicates that several officers had
positioned themselves around the parking lot before Rodgers exited
his vehicle. Thus, as in Kopf, the decedent was surrounded and
unable to escape. However, the majority concludes that Waters,
unlike the officers in Kopf, faced an imminent threat of harm. In
so doing, the majority points to Waters’ assertions that he heard
someone yell “Gun!”, that he observed that Rodgers’ right hand was
out of view under his shirt, and that he (Waters) was so close to
the decedent that he had no choice but to deploy his dog without
warning. See Op. at 14-15. Viewing the evidence in the light most
22
favorable to the decedent, however, I believe that the majority’s
reliance on these assertions is misguided.
First, as the majority notes, Officer Waters gave two
distinctly different versions of what he saw in Rodgers’ hand
before he deployed the dog. In his initial SBI statement taken
shortly after the shooting, Waters asserted that he did not see
Rodgers’ right hand, but that “it may have been up under his
shirt.” J.A. 345. Contrarily, in a sworn affidavit, Waters later
claimed that Rodgers had “advanced toward [him] with his handgun
drawn in a threatening manner.” J.A. 135. The patent
inconsistency between these two statements undermines the
credibility of Waters’ assertions as to the imminent threat posed
by the decedent.
Second, Officer Waters’ and the other officers’ actions, as
portrayed on the video, provide strong evidence that Rodgers did
not have a gun in his hand prior to being engaged by the dog.
Beginning at 1:51:01, Officer Waters, without drawing his gun, can
be seen rushing across the parking lot to within a few feet of
where Rodgers is standing, hurling the dog towards him, and then
continuing to advance until he is within inches of Rodgers. Four
seconds later, at 1:51:05, Officer Waters, who is now standing in
front of Rodgers watching the dog attack, begins to back away from
Rodgers (and the dog). Officer Waters does not draw his gun until
1:51:06, when Rodgers, who at this point is desperately attempting
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to extricate the dog from his leg, reaches towards his waistband.
Had Waters actually heard his fellow officer shout “Gun!” or turned
around to see Rodgers pointing a weapon at him, as he later
claimed, it is doubtful that the officer would have approached and
stood in front of Rodgers in such a vulnerable manner. Further,
the video shows that neither Officer McFarlane or Deputy Farrow has
his gun raised at Rodgers as Officer Waters rushes towards him with
the dog. Officer McFarlane, who is crouched on the ground with his
gun in his right hand, does not raise his weapon at Rodgers until
Waters releases the dog (1:51:03), and Deputy Farrow does not draw
and aim his gun at Rodgers until five seconds after McFarlane
(1:51:08). This is further evidence that Rodgers did not have a
gun in his hand prior to Waters’ release of the dog.
Finally, Waters’ contention that he was so close to Rodgers
that he had no choice but to deploy the dog without warning is
belied by his actions and previous statement. As noted above, the
video shows Waters advancing across the parking lot to within two
or three feet of Rodgers before releasing the dog. Further, Waters
initially asserted in his SBI statement that, while the high speed
pursuit was still in progress, he had radioed the other officers to
warn them that he intended to deploy the dog against Rodgers once
the pursuit ended. See J.A. 344. This statement further
undermines Waters’ claim that he made a split-second decision to
deploy the dog based on his close proximity to Rodgers.
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In sum, the video portrays a scene where a police officer
deployed his dog without warning against a suspect who was
completely surrounded and who, as evidenced by the officers’ own
actions, had not drawn his gun or otherwise endangered his--or his
fellow officers’--safety. I, therefore, conclude that Officer
Waters’ deployment of the dog in this case is not readily
distinguishable from the unlawful deployment in Kopf and would hold
that Waters is not entitled to qualified immunity.*
As the majority aptly notes, this is a tragic case. I,
however, cannot join the majority in concluding that Rodgers’
actions in bringing about this encounter justified Officer Waters’
subsequent response. Ultimately, viewing the evidence in the light
most favorable to the decedent, I believe a jury could conclude
that Rodgers got out of his vehicle with empty hands in an attempt
to surrender. Although it is undisputed that Rodgers eventually
drew a gun, a jury could reasonably find that he did so only after
he was attacked by the dog--and only then, in a desperate attempt
to defend that attack. But for Officer Waters’ unwarned deployment
of the dog, this tragedy may have been averted.
I respectfully dissent in part.
*
The unlawfulness of deploying a dog without prior warning in
these circumstances was clearly established by our decision in
Kopf, which this court decided eleven years before the events
giving rise to this case occurred. Thus, I would also conclude
that the decedent has satisfied the second element for defeating
qualified immunity as to Officer Waters.
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